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George
Washington is known as the father of our country, and
rightfully so. But often overlooked in America’s
history is that James Otis, Jr. is the father of the
revolution. For it was Otis who was one of the first to
take a stand against British laws imposed on the
colonies. According to John Adams, American independence
was born in the Boston Old Town hall in February of
1761. The twenty-five year old Adams witnessed an
impassioned speech given by the thirty-six year old
Massachusetts attorney named James Otis, Jr. Long before
Lexington, James Otis’s fight for civil liberty gave
rise to the heart of the rebel cause.
Few freedoms are more fundamental to the American way of
life, than the Right to Privacy and Property, otherwise
known as the Fourth Amendment to the Constitution of the
United States. The Fourth Amendment was not ratified
until Dec. 15, 1791, eight years after Otis’s death,
but we can lay our thanks for that right to privacy,
squarely at the feet of James Otis, Jr.
The
right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
Background
On February 5, 1725, James Otis, Jr. was born to James
Otis and Mary Allyne Otis in West Barnstable, which is
near the center of Massachusetts. In his formative
years, Otis was under the tutelage of Reverend Jonathan
Russell, the minister of Barnstable. At age fifteen,
Otis entered nearby Harvard College, where he graduated
in 1743. He then went on to study law for two years
under Judge Jeremiah Gridley, a distinguished member of
the General Court of Massachusetts.
In 1755, Otis married Ruth Cunningham, the daughter of a
Boston merchant. The marriage greatly enhanced Otis’s
social standing and also improved his financial
situation. The couple had one son and two daughters. The
two were said to have been far from happily married.
Many of the marital problems stemming from great
differences in political opinions.
Otis served the Boston vice-admiralty court as advocate
general from 1756 to 1760, during which time, he became
more active both politically and legally.
Groundwork for a Revolution
In 1760, with the French and Indian War drawing to a
close, King George III came to power upon the death of
his grandfather. The ascension of George III 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 had become rampant in North American colonies
because of the high British tariffs on sugar and
molasses. This encouraged American merchants to deal
with French, Dutch and West Indies traders.
Royal officials in London sought to tighten the
enforcement against smuggling by tempting Massachusetts
Governor Francis Bernard with one-third of the fines
collected from such activities. To aid the call for
tighter enforcement, Governor Bernard appointed Thomas
Hutchinson, who was also loyal to the British crown, as
the 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 in
the vice-admiralty court. After resigning the well paid
post, Otis offered his assistance to the merchants in
their attempt to stop the execution of the new writs.
Thus began the battle between Otis and the British
Empire.
Writs of Assistance
On February 24, 1761, as case was brought to the
Superior Court of Massachusetts by Charles Paxton, the
Surveyor of Customs for the Port of Boston, for writs of
assistance. Jeremiah Gridley appeared as counsel for the
customs office. Joining Chief Justice Hutchinson on the
bench were Justices Lynde, Cushing, Oliver and Russell.
Otis and his associate, Oxenbridge Thatcher represented
sixty-three prominent Boston merchants, in opposition to
the writs.
Gridley opened for the crown by arguing that the Court
of Exchequer, which had the statutory authority to issue
them, was issuing such general writs in England; the
province law of 1699 had granted the Superior Court
jurisdiction in Massachusetts "generally" over
matters which the courts of King’s Bench, Common
Pleas, or Exchequer "have or ought to have."
Gridley further argued that such warrants were necessary
in the collection of taxes and in protecting the state
from foreign and domestic subversives.
Thatcher addressed the court next and spoke largely on
the technical issues. Thatcher had a reputation of not
being a troublemaker and somewhat sidestepped the issue
of the legality of the writs. He denied that the
Superior Court could exercise the right of the Court of
Exchequer in England to issue such writs. Then Otis
arose to speak. One critic described him as "a
plump, round faced, smooth skinned, short necked, eagle
eyed politician," but the young John Adams, who
attended the trial and wrote down the account in his
diary and again some fifty years later, claimed,
"Otis was a flame of fire!"
Otis relied on English law books to prove that only
special warrants were legal and further 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." With remarkable accuracy,
Otis’s words captured the mood of the midnight
visitation by totalitarian police which would terrify a
later era less sensitive to individual freedom.
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, Everyman
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 had directly challenged the British government. Not
just the royal governor of Massachusetts, not just
Parliament, and not just the King, but also the entire
British government! And he did so not with rhetoric of
anarchy, nor with rabble-rousing, but with a solid
appeal to the Rule of Law.
Upon the completion of the Otis oration, the member of
the bench had been swayed, save for Chief Justice
Hutchinson, who delayed a vote in an attempt to buy
precious time. Eventually, Hutchinson succeeded in
having the writs upheld when, in November of that same
year, the case was heard a second time. Only this time,
George III was the new monarch, and the Court of
Exchequer was routinely issuing 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.
Public Service
Despite Otis’s unlikable personality, his 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.
James Otis, Jr. was eventually elected to the House by a
narrow margin. It would be gratifying to report this
champion of liberty was at the forefront of the
Revolution once the fighting began. Regrettably however,
that is not the case. Otis was quick-tempered and often
abusive towards others. Otis eventually followed a
course which branded him a recreant to his own
principles, which he had so heroically upheld. He became
hated by his foes and deserted by his followers.
The Stamp Act
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 considered and
passed by Parliament, Grenville had also submitted a
resolution which suggested the need 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 largely
viewed the pamphlet as propaganda and dismissed it.
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.
Madness is Catching
Otis’s pamphlet to the Parliament did draw resolute
approval from the Whigs in England. When an opponent
proclaimed that Otis was mad, Lord Mansfield rejoiced
that in all popular assemblies, "madness is
catching."
Shortly thereafter, Otis wrote another paper entitled
Vindication of the British Colonies. For reasons
unknown, Otis reversed his earlier stance that England
had no right to tax the colonies and now argued they did
in fact have that right.
Historians speculate Otis began suffering in his mental
faculties. Perhaps it was concession to the continued
battle with his Tory wife. Whatever the cause, Otis
began to waver on most any issue. Each day brought a
differing stance from Otis. But his continued verbal
assaults grew worse. In an argument at a Boston town
meeting, he challenged George Grenville to single combat
on the floor of Faneuil Hall.
In 1769, Otis got into a coffeehouse brawl with John
Robinson, 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, had the satisfaction of
appointing a sanity commission, who found Otis to be a
lunatic.
The Revolution
Throughout the remainder of his life, Otis had
intermittent spells of clarity, but he played very
little roll whatsoever in the Revolution. He was placed
in the care of various friends and family members. While
under the care of his sister, Mercy 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. Indeed a tragic, if not fitting end, to
an unlikable, but outspoken leader who sent the
colonists in the direction of a revolution. His remains
were taken to the Granary Burying Grounds in Boston.
Conclusion
Most think the Revolutionary War was fought over
taxation, and don’t even know what a writ of
assistance is. But one cannot truly understand the
origins of the American Revolution without some
knowledge of what transpired that day in 1761. For on
that day, James Otis, Jr. lit the fire of freedom, and
the whole of England was unable to contain it.
The
Rights of the British Colonies Asserted and Proved
BIBLIOGRAPHY
Richard B. Morris: Then and There, the Child
Independence Was Born
John Clark Ridpath: James Otis, the
Pre-Revolutionist
Brian Tubbs: Two Faces of a Movement
A.J. Langguth: Patriots, The Men Who Started the
American Revolution
Edmund S. Morgan: The Challenge of the American
Revolution
Howard Zinn: A People’s History of the United
States
Brian Tubbs: One Man Against an Empire
Brian Tubbs: James Otis Lights a Fire
Thomas J. Fleming: Liberty! The American
Revolution
Webb Garrison: Great Stories of the American
Revolution
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