lieutenant governor Hutchinson at their head, as chief justice; all
in their new fresh robes of scarlet English cloth, in their broad
bands, and immense judicial wigs. In this chamber was seated at a
long table all the barristers of Boston, and its neighbouring county
of Middlesex, in their gowns, bands and tye-wigs. They were not
seated on ivory chairs; but their dress was more solemn and more
pompous than that of the Roman Senate, when the Gauls broke in upon
them. In a corner of the room must be placed wit, sense, imagination,
genius, pathos, reason, prudence, eloquence, learning, science, and
immense reading, hung by the shoulders on two crutches, covered
with a cloth great coat, in the person of Mr. Pratt, who had been
solicited on both sides but would engage on neither, being about to
leave Boston forever, as chief justice of New York.
Two portraits, at more than full length, of king Charles the second,
and king James the second, in splendid golden frames, were hung
up in the most conspicuous side of the apartment. If my young eyes
or old memory have not deceived me, these were the finest pictures
I have seen. The colours of their long flowing robes and their
royal ermines were the most glowing, the figures the most noble and
graceful, the features the most distinct and characteristic: far
superior to those of the king and queen of France in the senate
chamber of congress. I believe they were Vandyke's. Sure I am there
was no painter in England capable of them at that time. They had been
sent over without frames, in governor Pownal's time. But as he was no
admirer of Charleses or Jameses, they were stowed away in a garret
among rubbish, till governor Bernard came, had them cleaned, superbly
framed, and placed in council for the admiration and imitation of all
men, no doubt with the concurrence of Hutchinson and all the junto;
for there has always been a junto. One circumstance more. Samuel
Quincy and John Adams had been admitted barristers at that term. John
was the youngest. He should be painted, looking like a short thick
fat archbishop of Canterbury, seated at the table, with a pen in his
hand, lost in admiration, now and then minuting those despicable
notes which you know that ******** ******** stole from my desk,
and printed in the Massachusetts Spy, with two or three bombastic
expressions interpolated by himself; and which your pupil, judge
Minot, has printed in his history.
You have now the stage and the scenery. Next follows a narration of
the subject. I rather think that we lawyers ought to call it a brief
of the cause.
When the British ministry received from general Amherst his
despatches, announcing his conquest of Montreal, and the consequent
annihilation of the French government and power in America, in 1759,
they immediately conceived the design and took the resolution of
conquering the English colonies, and subjecting them to the unlimited
authority of parliament. With this view and intention, they sent
orders and instructions to the collector of the customs in Boston,
Mr. Charles Paxton, to apply to the civil authority for writs of
assistance, to enable the custom house officers, tide waiters, land
waiters, and all, to command all sheriffs and constables to attend
and aid them in breaking open houses, stores, shops, cellars, ships,
bales, trunks, chests, casks, packages of all sorts, to search for
goods, wares and merchandizes, which had been imported against the
prohibitions, or without paying the taxes imposed by certain acts of
parliament, called "THE ACTS OF TRADE," _i. e._ by certain
parliamentary statutes, which had been procured to be passed from
time to time, for a century before, by a combination of selfish
intrigues between West India planters and North American royal
governors. These acts never had been executed, and there never had
been a time when they would have been, or could have been, obeyed.
Mr. Paxton, no doubt consulting with governor Bernard, lieutenant
governor Hutchinson, and all the principal crown officers, and
all the rest of the Junto, thought it not prudent to commence his
operations in Boston. For obvious reasons, he instructed his deputy
collector in Salem, Mr. Cockle, to apply by petition to the superior
court, in November, 1760, then sitting in that town, for writs of
assistance. Stephen Sewall was then chief justice of that court, an
able man, an uncorrupted American, and a sound whig, a sincere friend
of liberty, civil and religious. He expressed great doubts of the
legality of such a writ, and of the authority of the court to grant
it. Not one of his brother judges uttered a word in favor of it; but
as it was an application on the part of the crown, it must be heard
and determined. After consultation, the court ordered the question to
be argued at the next February term, in Boston, _i. e._ in 1761.
In the mean time chief justice Sewall died, and lieutenant governor
Hutchinson was appointed chief justice of that court in his stead.
Every observing and thinking man knew that this appointment was made
for the direct purpose of deciding this question, in favour of the
crown, and all others in which it should be interested.
An alarm was spread far and wide. Merchants of Salem and Boston
applied to Mr. Pratt, who refused, and to Mr. Otis and Mr. Thatcher,
who accepted, to defend them against this terrible menacing monster,
the writ of assistance. Great fees were offered, but Otis, and I
believe Thatcher, would accept of none. "In such a cause," said Otis,
"I despise all fees."
I have given you a sketch of the stage and the scenery, and a brief
of the cause; or, if you like the phrase better, of the tragedy,
comedy or farce.
Now for the actors and performers. Mr. Gridley argued with his
characteristic learning, ingenuity and dignity, and said every thing
that could be said in favour of Cockle's petition, all depending,
however, on the "If the parliament of Great Britain is the sovereign
legislator of all the British empire."
Mr. Thatcher followed him on the other side, and argued with the
softness of manners, the ingenuity, the cool reasoning which were
peculiar to his amiable character.
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 glare 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, i. e. in 1776, he grew up to
manhood and declared himself free.
The court adjourned for consideration, and after some days at the
close of the term, Hutchinson chief justice arose and said, "The
court has considered the subject of writs of assistance, and can see
no foundation for such a writ; but as the practise in England is not
known, it has been thought best, to continue the question to next
term, that in the mean time opportunity may be given to write to
England for information concerning the subject." In six months the
next term arrived; but no judgment was pronounced; nothing was said
about writs of assistance; no letters from England, and nothing more
was said in court concerning them.--But it was generally reported and
understood that the court clandestinely granted them; and the custom
house officers had them in their pockets, though I never knew that
they dared to produce and execute them in any one instance.
Mr. Otis's popularity was without bounds. In May, 1761, he was
elected into the house of representatives, by an almost unanimous
vote. On that week I happened to be at Worcester attending a court
of common pleas of which, brigadier Ruggles was chief justice.
When the news arrived from Boston, you can have no idea of the
consternation among the government people. Chief justice Ruggles at
dinner at colonel Chandler's on that day, said, "Out of this election
will arise a damn'd faction, which will shake this province to its
foundation."
For ten years afterwards Mr. Otis, at the head of his country's
cause, conducted the town of Boston and the people of the province
with a prudence and fortitude, at every sacrifice of personal
interest and amidst unceasing persecution, which would have done
honour to the most virtuous patriot or martyr of antiquity.
I fear I shall make you repent of bringing out the old gentleman.
JOHN ADAMS.
TO THE HON. WM. TUDOR.
_Quincy_, _April_ 5, 1818.
DEAR SIR,
In Mr. Wirt's elegant and eloquent panegyrick on Mr. Henry I beg your
attention from page 56 to page 67, the end of the second section,
where you will read a curious specimen of the agonies of patriotism
in the early stages of the revolution. "When Mr. Henry could carry
his resolutions but by one vote, and that against the influence of
Randolph, Bland, Pendleton, Wythe and all the old members whose
influence in the house had till then been unbroken; and when Peyton
Randolph afterwards president of congress swore a round oath, he
would have given 500 guineas for a single vote; for one vote would
have divided the house, and Robinson was in the chair, who he knew
would have negatived the resolution."
And you will also see the confused manner in which they were first
recorded, and how they have since been garbled in history. My remarks
at present will be confined to the anecdote in page 65.
Cæsar had his Brutus, Charles the first, his Cromwell, and George the
third. Treason cried the speaker--treason, treason, echoed from every
part of the house. Henry finished his sentence by the words, "may
profit by their example." If this be treason make the most of it.
In judge Minot's history of Massachusetts Bay, volume second, in page
102 and 103, you will find another agony of patriotism in 1762, three
years before Mr. Henry's. Mr. Otis suffered one of equal severity in
the house of representatives of Massachusetts. Judge Minot's account
of it is this.
The remonstrance offered to the governor was attended with
aggravating circumstances. It was passed, after a very warm speech,
by a member in the house, and at first contained the following
offensive observation.
"For it will 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." Though judge Minot does not say it,
the warm speech was from the tongue, and the offensive observation,
from the pen of James Otis; when these words of the remonstrance were
first read in the house, Timothy Pain, Esq. a member from Worcester,
in his zeal for royalty, though a very worthy and very amiable man,
cried out, treason! treason! the house however were not intimidated,
but voted the remonstrance with all the treason contained in it, by a
large majority; and it was presented to the governor by a committee
of which Mr. Otis was a member.
Judge Minot proceeds--"The governor was so displeased with the
passage, that he sent a letter to the speaker, returning the message
to the house; in which he said, that the king's name, dignity and
cause, were so improperly treated that he was obliged to desire the
speaker to recommend earnestly to the house, that it might not be
entered upon the minutes in the terms in which it then stood. For if
it should, he was then satisfied they would again and again, wish
that some part of it were expunged, especially if it should appear,
as he doubted not it would when he entered upon his vindication, that
there was not the least ground for the insinuation, under colour
of which, that sacred and well beloved name was so disrespectfully
brought into question."
Upon the reading of this letter, the exceptionable clause was struck
out of the message.
I have now before me a pamphlet printed in 1763, by Edes & Gill, in
Queen-street, Boston, entitled a vindication of the conduct of the
house of representatives of the province of the Massachusetts Bay,
more particularly in the last session of the general assembly, by
James Otis, Esq. a member of said house, with this motto--
Let such, such only, tread this sacred floor,
Who dare to love their Country and be poor;
Or good, tho' rich, humane and wise, tho' great,
Jove give but these, we've nought to fear from fate.
I wish I could transcribe the whole of this pamphlet, because it is a
document of importance in the early history of the revolution, which
ought never to be forgotten. It shows in a strong light the heaves
and throes of the burning mountain, three years at least, before the
explosion of the volcano in Massachusetts or Virginia.
Had judge Minot ever seen this pamphlet, could he have given so
superficial an account of this year, 1762? There was more than one
"_warm speech_" made in that session of the legislature; Mr. Otis
himself, made many. A dark cloud hung over the whole continent; but
it was peculiarly black and threatening over Massachusetts and the
town of Boston, against which devoted city the first thunderbolts of
parliamentary omnipotence were intended and expected to be darted.
Mr. Otis, from his first appearance in the house in 1761, had shewn
such a vast superiority of talents, information and energy to every
other member of the house, that in 1763 he took the lead as it were
of course. He opened the session with a speech, a sketch of which he
has given us himself. It depends upon no man's memory. It is warm; it
is true. But it is warm only with loyalty to his king, love to his
country, and exultations in her exertions in the national cause.
This pamphlet ought to be reprinted and deposited in the cabinet
of the curious. The preface, is a frank, candid and manly page,
explaining the motive of the publication, viz: the clamours against
the house for their proceedings, in which he truly says.--"The world
ever has been, and ever will be pretty equally divided, between those
two great parties, vulgarly called the winners and the losers; or
to speak more precisely, between those who are discontented that
they have no power, and those who think they never can have enough."
Now it is absolutely impossible to please both sides either by
temporizing, trimming or retreating; the two former justly incur the
censure of a wicked heart; the latter that of cowardice, and fairly
and manfully fighting the battle, and it is in the opinion of many
worse than either. On the 8th of September, A. D. 1762, the war still
continuing in North America and the West Indies, governor Bernard
made his speech to both houses, and presented a _requisition_ of sir
Jeffery Amherst, that the Massachusetts troops should be continued in
pay during the winter.
Mr. Otis made a speech, the outlines of which he has recorded in the
pamphlet, urging a compliance with the governor's recommendation and
general Amherst's requisition; and concluding with a motion for a
committee to consider of both.
A committee was appointed, of whom Mr. Otis was one, and reported not
only a continuance of the troops already in service, but an addition
of nine hundred men, with an augmented bounty to encourage their
enlistment.
If the orators on the 4th of July, really wish to investigate the
principles and feelings which produced the revolution, they ought to
study this pamphlet and Dr. Mayhew's sermon on passive obedience and
non-resistance, and all the documents of those days. The celebrations
of independence have departed from the object of their institution,
as much as the society for the propagation of the gospel in foreign
parts have from their charter. The institution had better be wholly
abolished, than continued an engine of the politics and feelings of
the day, instead of a memorial of the principles and feelings of the
revolution half a century ago, I might have said for two centuries
before.
This pamphlet of Mr. Otis exhibits the interesting spectacle of
a great man glowing with loyalty to his sovereign, proud of his
connection with the British empire, rejoicing in its prosperity, its
triumphs and its glory, exulting in the unexampled efforts of his own
native province to promote them all: but at the same time grieving
and complaining at the ungenerous treatment that province had
received from its beginning from the mother country, and shuddering
under the prospect of still greater ingratitude and cruelty from the
same source. Hear a few of his words, and read all the rest.
"_Mr. Speaker_--This province has upon all occasions been
distinguished by its loyalty and readiness to contribute its most
strenuous efforts for his majesty's service. I hope this spirit will
ever remain as an indelible characteristic of this people," &c. &c.
"Our own immediate interest therefore, as well as the general cause
of our king and country requires, that we should contribute the last
penny and the last drop of blood, rather than by any backwardness
of ours, his majesty's measures should be embarrassed: and thereby
any of the enterprises that may be planned for the regular troops,
miscarry. Some of these considerations I presume, induced the
assembly upon his majesty's requisition, signified last spring by
lord Egremont, so cheerfully and unanimously to raise thirty three
hundred men for the present campaign; and upon another requisition
signified by sir Jeffery Amherst to give a handsome bounty for
enlisting about nine hundred more into the regular service. The
colonies, we know, have often been blamed without cause; and we
have had some share of it. Witness the miscarriage of the pretended
expedition against Canada, in queen Ann's time, just before the
infamous treaty of Utrecht. It is well known by some now living
in this metropolis, that the officers both of the army and navy,
expressed their utmost surprise at it upon their arrival. To some of
them no doubt, it was a disappointment; for in order to shift the
blame of this shameful affair from themselves, they endeavoured to
lay it upon the New England colonies.
"I am therefore clearly for raising the men," &c. &c. "This province
has, since the year 1754, levied for his majesty's service as
soldiers and seamen, near thirty thousand men, besides what have been
otherwise employed. One year in particular it was said that every
fifth man was engaged in one shape or another.--We have raised sums
for the support of this war, that the last generation could hardly
have formed any idea of. We are now deeply in debt," &c. &c.
On the 14th of September, the house received a message from the
governor, containing a somewhat awkward confession of certain
expenditures of public money with advice of council, which had not
been appropriated by the house. He had fitted out the Massachusetts
sloop of war, increased her establishment of men, &c. Five years
before, perhaps this irregularity might have been connived at or
pardoned; but, since the debate concerning writs of assistance, and
since it was known that the acts of trade were to be enforced, and a
revenue collected by authority of parliament, Mr. Otis's maxim, that
"taxation without representation was tyranny," and "that expenditures
of public money, without appropriations by the representatives of the
people, were unconstitutional, arbitrary and therefore tyrannical,"
had become popular proverbs. They were common place observations in
the streets. It was impossible that Otis should not take fire upon
this message of the governor. He accordingly did take fire, and made
that flaming speech which judge Minot calls "_a warm speech_" without
informing us who made it or what it contained. I wish Mr. Otis had
given us this warm speech as he has the comparatively cool one, at
the opening of the session. But this is lost forever. It concluded
however, with a motion for a committee to consider the governor's
message and report. The committee was appointed, and Otis was the
first after the speaker.
The committee reported the following answer and remonstrance, every
syllable of which is Otis:
"_May it please your Excellency_:
"The house have duly attended to your excellency's message of the
eleventh inst. relating to the Massachusetts sloop, and are humbly
of opinion that there is not the least necessity for keeping up her
present complement of men, and therefore desire that your excellency
would be pleased to reduce them to six, the old establishment made
for said sloop by the general court. Justice to ourselves, and to our
constituents obliges us to remonstrate against the method of making
or increasing establishments by the governor and council.
"It is in effect, taking from the house their most darling privilege,
the right of originating all taxes.
"It is, in short, annihilating one branch of legislation. And when
once the representatives of the people give up this privilege, the
government will very soon become arbitrary.
"No necessity therefore, 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.
"Had this been the first instance of the kind, we might not have
troubled your excellency about it; but lest the matter should go into
precedent, we earnestly beseech your excellency, as you regard the
peace and welfare of the province, that no measures of this nature be
taken for the future, let the advice of council be what it may."
This remonstrance being read, was accepted by a large majority, and
sent up and presented to his excellency by a committee of whom Mr.
Otis was one.
But here, Mr. Tudor, allow me, a digression, an episode. Lord
Ellenborough in the late trial of Hone, says "the Athanasian Creed is
the most beautiful composition that ever flowed from the pen of man."
I agree with his lordship, that it is the most consummate mass
of absurdity, inconsistency and contradiction that ever was put
together. But I appeal to your taste and your conscience, whether the
foregoing remonstrance of James Otis is not as terse a morsel of good
sense, as Athanasius's Creed is of nonsense and blasphemy?
The same day the above remonstrance was delivered, the town was
alarmed with a report, that the house had sent a message to his
excellency, reflecting on his majesty's person and government, and
highly derogatory to his crown and dignity, and therein desired, that
his excellency would in no case take the advice of his majesty's
council.
The governor's letter to the speaker, is as judge Minot represents
it. Upon reading it, the same person who had before cried out,
treason! treason! when he first heard the offensive words, now cried
out, "rase them! rase them!" They were accordingly expunged.
In the course of the debate, a new and surprising doctrine was
advanced. We have seen the times, when the majority of a council by
their words and actions have seemed to think themselves obliged to
comply with every thing proposed by the chair, and to have no rule
of conduct but a governor's will and pleasure. But now for the first
time it was asserted, that the governor in all cases was obliged to
act according to the advice of council, and consequently would be
deemed to have no judgment of his own.
In page 17, Mr. Otis enters on his apology, excuse or justification
of the offensive words: which, as it is as facetious as it is
edifying, I will transcribe at length in his own words, viz: