In this chamber, near the fire, were seated five judges, with

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:

Novanglus, and Massachusettensis or, Political Essays, Published in the Years 1774 and 1775, on the Principal Points of Controversy, between Great Britain and Her Colonies · 第 29 / 37 段