James Otis, the pre-revolutionist Part 2

There was an epoch of evasion. This covered a period of about seventeen years, extending from 1733 to 1750. In the latter year an act was pa.s.sed by Parliament forbidding the erection of iron works in America. The manufacture of steel was especially interdicted. The measure which was in reality directed against s.h.i.+pbuilding included a provision which forbade the felling of pines outside of enclosures. It was thus sought by indirection to prevent the creation of a merchant marine by the American Colonists and to limit their commerce to British s.h.i.+ps. This measure like the Importation Act was also ignored and resisted.

For eleven years the Americans persisted in their usual course, making iron, cutting pine timber and building s.h.i.+ps, importing mola.s.ses and rum, evading the duties, and thus getting themselves into the category of smugglers.

It was this precise condition of affairs which led to a still more stringent measure on the part of the home government. It was determined in Parliament to put an end to the evasion and resistance of the American merchants and importers with respect to the existing laws. The customs should be collected. It was deemed best, however, that the new measure should issue from the judiciary.

An appeal was made to the Court of Exchequer in England for the granting of search warrants to be issued in America by the king's officers for the purpose of ferreting out contraband goods.

These warrants granted by the Court of Exchequer were the Writs of a.s.sistance, the name of which appears so frequently and with so much odium in the colonial history of the times. These writs were granted by the court under pressure of the ministry in the year 1760.

The Writs of a.s.sistance were directed to the officers of the customs in America. But any officer could arm one of his subordinates, or indeed any other person whom he should designate, with one of the writs, and the person so appointed might act in the name of the king's officer.

The thing to be done was the examination of any place and all places where contraband goods might be supposed to be lodged.

Whether there were evidence or no evidence, the case was the same. The doc.u.ment was a writ of arbitrary search.

Any house, public or private, might be entered at any time; any closet or any cellar might be opened. Neither the bridal chamber nor the room of the dead was sacred on the approach of any petty customs constable or deputy in whose hands a Writ of a.s.sistance had been placed. The antecedent proceedings required no affidavit or any other legal formality. The object was to lay bare the whole privacy of a people on sheer suspicion of smuggling.

It could hardly be supposed that our fathers would tamely submit to such an odious and despotic procedure. To have done so would have been to subscribe to a statute for their own enslavement.

Nor may we pa.s.s from the consideration of these writs and the resistance offered thereto by the patriots of all our colonies without noticing the un-English character of these laws.

Of a certainty Englishmen in whatever continent or island of this world would never tolerate such a tyrannical interference with their rights. This was demonstrated not only in America, but in England also.

The issuance in England of just such illegal and arbitrary warrants was one of the causes that led to the tremendous agitation headed by John Wilkes. The excitement in that controversy grew, and notwithstanding the repeated arrests of Wilkes and his expulsions from Parliament, his reelection was repeated as often, and his following increased until not only the ministry but the throne itself was shaken by the cry of "Wilkes and Liberty." Nor did this well-timed ebullition of human rights subside until the arbitrary warrants were annulled by a decision of the King's Bench.

It was the trial of this issue in America that brought on the Revolution. It was a great cause that had to be pleaded, and the occasion and the city and the man, were as great as the cause.

The parties to it were clearly defined, and were set in sharp antagonism.

On the one side were the king's officers in the province, headed by the governor. This following included the officers of the customs in particular. It also included the not inconsiderable cla.s.s of American respectabilities who were feeble in American sentiments, and who belonged by nature and affiliation to the established order. These were the loyalists, destined to be designated as Tories, and to become the bete noire of patriotism.

On the other side was a whole phalanx of the common people--a phalanx bounded on the popular side by the outskirt of society and on the high-up side by the intellectual and philosophical patriots who were as p.r.o.nounced as any for the cause of their country, and with better reason than the reason of the many.

The officers of the province elected by the home folks were all patriots, but the appointed officers of the crown were quite unanimous for the prerogative of the crown, holding severe measures should be taken with the resisting colonists, and in particular that the Writs of a.s.sistance were good law and correct policy.

We should here note the particular play of the personal forces in the year 1760. There were two notable deaths--the one notable in Ma.s.sachusetts and the other in the world. The first was that of Chief Justice Stephen Sewall of Ma.s.sachusetts, and the other was that of His Majesty George II, the

"Snuffy old drone from the German hive,"

as he is described by the "Autocrat of the Breakfast Table." The first was succeeded in office by Thomas Hutchinson, Lieutenant-Governor of the province under Sir Fraucis Bernard, who was appointed governor in this notable year 1760 as the successor of Thomas Pownall, who had succeeded Governor William s.h.i.+rley.

Hutchinson--to use the adjective which John Adams was wont to apply to himself and other patriots to the manner born--was a Ma.s.sachusettensian. He had sympathized with the people, but he now turned against them. Before Judge Sewall went away it was said and believed that Governor s.h.i.+rley had promised the place of Chief Justice, when the same should be vacant, to no other than Colonel James Otis of Barnstable, father of the subject of this sketch.

But Governor Bernard, s.h.i.+rley's second successor in office, took another view of the matter and appointed Lieutenant-Governor Hutchinson to the high office of Chief Justice.

It was the belief and allegation of the King's party that this appointment and this disappointment--the first of Hutchinson and the second of Colonel Otis--bore heavily on all the Otises, and indeed converted them from royalism to patriotism.

Chief Justice Hutchinson himself is on record to this effect. In his "History of Ma.s.sachusetts," speaking of his own appointment to the judicial office, he says:

"The expected opposition ensued. Both gentlemen (that is, Colonel Otis and James Otis, Jr.) had been friends to the government. From this time they were at the head of every measure in opposition, not merely in those points which concerned the Governor in his administration, but in such as concerned the authority of Parliament; the opposition to which first began in this colony, and was moved and conducted by one of them, both in the a.s.sembly and the town of Boston. From so small a spark, a great fire seems to have been kindled."

The statement of a partisan, especially if he be a beneficiary, must be taken with the usual allowance of salt.

It may be that the patriotic trend of the Otises was intensified a little by a personal pique in the matter referred to. But that either father or son was transferred from the king's party to the people's party by the failure of Colonel Otis to be appointed Chief Justice is not to be believed. Other stories are to be dismissed in the same manner.

One slander prevalent about the Custom House ran to the effect that James Otis had declared that he would set the province on fire even if he had to perish in the flames. The art of political lying was known even among our fathers.

Such was the situation of affairs when the sycophants of the foreign government in Boston undertook to enforce the Writs of a.s.sistance. They soon found that they needed more a.s.sistance to do it. The banded merchants, and the patriots generally, said that the acts were illegal, and that they would not submit to the officers. The governor and his subordinates and the custom-house retinue in particular, said that the writs were legal, and that they should be enforced. The matter came to a clash and a trial.

The case as made up presented this question: Shall the persons employed in enforcing the Acts of Trade have the power to invoke generally the a.s.sistance of all the executive officers of the colony?

This issue was, in February of 1761, taken into court in the old Town House, afterwards the old State House, of Boston. There were sitting the five Judges of the Superior Court of the province. Chief Justice Hutchinson, still holding the office of Lieutenant-Governor, his members.h.i.+p in the Council, and his position of Judge of Probate, presided at the trial. Perhaps there was never in America an instance in which a high official so nearly fulfilled the part of "Pooh Bah."

The trial evoked an attendance of all who could be admitted, and of many more. The officers of the crown were out in full force, and resolute patriotism completed the crowd. John Adams was one of the spectators.

Another element in the dramatic situation was the fact that James Otis had, in the meantime, received the appointment to the crown office of Advocate General, to which an ample salary was attached. In this relation it would be his especial duty to support the pet.i.tion of the custom-house officers in upholding the Writs of a.s.sistance and in constraining the executive officers of the province to support them in doing so.

This contingency brought out the mettle of the man. When the revenue officers came to him with the request that he defend their case, he at once resigned his office, and this being known the merchants immediately sought his services as counsel to uphold their protest against the Writs. For his a.s.sistant they selected Mr. Oxenbridge Thatcher.

Otis accepted the invitation without a fee. His action involved the loss of his official position as well as his means of living.

It chanced at this time that his old law preceptor, Jeremiah Gridley, was selected as King's Attorney, and it fell to his lot to take the place which Otis would not accept. Thus master and pupil were brought face to face at the bar in the hottest legal encounter which preceded our rupture with the mother country.

The trial that ensued has been described by John Adams, an eye witness of the whole proceedings. He gives in his works a description of the conduct of the case as it was presented for and against the crown, and also notes of Otis's argument.

After the pleas were presented and other preliminary matters arranged, Mr. Gridley addressed the court in support of the government's position. He defended the pet.i.tion of the custom-house officials as both legal and just. Two statutes of the time of Charles II, empowering the court of Exchequer to issue writs such as those which were now denied, were adduced.

He then cited the statute of the sixth year of Queen Anne, which continued to inforce the processes which had been authorized in the twelfth and fourteenth years of the reign of Charles.

Still more to the point were the statutes of the seventh and eighth years of William III, which authorized the collection of revenue "in the British plantations" by officers who might search both public and private houses to find goods that had evaded the duty. These statutes Mr. Gridley claimed as a warrant for the like usage in America.

In answer to Gridley, Oxenbridge Thatcher,[1] himself a lawyer of no mean abilities, spoke for the counter pet.i.tioners. His plea was a strong confutation of Gridley's arguments. After this brief address Mr. Otis rose to continue the plea for the people.

Of the speech which followed we have no complete record or wholly satisfactory summary. It is to John Adams, and to the notes which he made on the occasion, that we must look for our opinion of what was, if we mistake not, the greatest and most effective oration delivered in the American colonies before the Revolution.

Such was the accepted belief of those who heard Otis, and witnessed the effect of his tremendous oratory.

Making all allowance for exaggeration, it seems to have been one of those inspired appeals by which History and Providence at critical epochs make themselves known to mankind. John Adams, then twenty-five years of age, pa.s.sing from his notes of Thatcher's speech, says of the greater actor:

"But Otis was a flame of fire; with a prompt.i.tude of cla.s.sical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance 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 a.s.sistance. 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, that is in 1776, he grew up to manhood, and declared himself free."

We may allow a little for the enthusiasm of a young patriot such as Adams, but there can be no doubt that his unmeasured eulogy was well deserved. Such was the description of Otis's speech.

As to the speech itself we have only a second-hand and inadequate report. Minot, in his "History of Ma.s.sachusetts," presents what purports to be a tolerably full outline of the great address.

Mr. Otis spoke for five hours, during which time with his rather rapid utterance he would perhaps deliver an oration of 30,000 words. Minot's report appears to have been derived from Adams'

notes done into full form by an unknown writer, who probably put in here and there some rather florid paragraphs of his own. At a subsequent period, Adams took up the subject and corrected Minot's report, giving the revised address to William Tudor, who used the same in his biography of James Otis. From these sources we are able to present a fair abstract of what were the leading parts of Otis's speech. In the beginning he said:

"May it please your Honors:

"I was desired by one of the court to look into the books, and consider the question now before them concerning Writs of a.s.sistance. 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 present another pet.i.tion, and out of regard to the liberties of the subject. And I take this liberty 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 G.o.d has given me, all such instruments of slavery on the one hand, and villainy on the other, as this Writ of a.s.sistance is.

"It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that was ever found in an English law-book. I must, therefore, beg your Honors' 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 case, 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 case, from the same principle; and I argue it with the greater pleasure, as it is in favor 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 it is in opposition to a kind of power, the exercise of which, in former periods of English history, cost one king of England his head, and another his throne.