James Otis, the pre-revolutionist Part 3

"I have taken more pains in this case than I ever will take again, although my engaging in this and another popular case 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 the good citizen; in public life, the patriot and the hero. I do not say that, when brought to the test, I shall be invincible. I pray G.o.d 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."

After this introductory part we are obliged to fall back on the summary given by Mr. Adams. According to his report, Otis in the next place went into fundamentals and discussed the rights of man in a state of nature. In this part, the argument ran in an a.n.a.lagous vein to that of Rousseau in the Contrat Social that is, man in the first place is a sovereign subject only to the higher laws revealed in his own conscience. In this state he has a right to life, to liberty, to property.

Here the speaker fell into the manner of Jefferson in the opening paragraphs of the Declaration. It is to be noted that Otis presented the truth absolutely; he including negroes in the common humanity to whom inalienable rights belong.

Mr. Otis next took up the social compact, and showed that society is the individual enlarged and generalized. This brought him to the question before the court; for the conflict now on was a struggle of society, endowed with inalienable rights, against arbitrary authority and its abusive exercise.

The abusive exercise was shown in the attempts to enforce the Acts of Trade. Of this kind was the old Navigation Act, and of like character was the Importation Act. It was to enforce these that the Writs of a.s.sistance had been devised. Mr. Otis then continued:

"Your Honors 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 in it, that the writ prayed for in this pet.i.tion, being general, 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 a.s.sistance, 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 dominions. Every one, with this writ, may be a tyrant in a legal manner, and 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 a.s.sist 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? To be the servant of servants, the most despicable of G.o.d'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 every thing 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 Honors 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, to answer 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 the garret to the cellar; and then served the constable in the same manner.

"But to show another absurdity in this writ, if it be established, I insist upon it, every person, by the 14th of Charles the Second, 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 neighbor's house, may get a Writ of a.s.sistance.

Others will ask it from self-defence; one arbitrary exertion will provoke another, until society be involved in tumult and in blood."

This extract may serve to show the Demosthenic power of James Otis as an orator. We cannot within our limits present many additional paragraphs from his great plea in the cause of his countrymen.

To the next division of his argument he confuted the position taken by Gridley with respect to the alleged legal precedents for the Writs of a.s.sistance. He showed that the writs were wholly different from those provided for in the time of Charles II.

Even if they had not been so, the epoch and the manner of King Charles had pa.s.sed away. Neither could the Writs be justified by inferences and constructions deduced from any previous statutes of Parliament.

Besides, such odious Writs could never be enforced. They could never be enforced in the City of the Pilgrims. If the King of England should himself encamp with twenty thousand soldiers on the Common of Boston, he could not enforce such laws. He a.s.sailed the sugar tax with unmeasured invective. And over and above all, this despotic legislation was in direct conflict with the Charter of Ma.s.sachusetts.

Here the orator broke forth in his most impa.s.sioned strain declaring that the British King, the British Parliament and the British nation, were all guilty of ingrat.i.tude and oppression in attempting to impose tyrannical enactment on the people of America. Thus he concluded his argument appeal.

Those who heard the oration were convulsed with excitement. The King's party was enraged. The patriots were inspired and defiant. It was in every respect a critical and a historic hour.

What would the court do with the case? The action of that body was obscure and double. There seems to have been a disposition of the a.s.sociate Judges to decide for the counter-pet.i.tioners; but Chief Justice Hutchinson induced them to a.s.sent to his policy of withholding a decision. He accordingly announced that the court would decide the case at the ensuing session. He then wrote to the home government, and the records show that the decision was rendered for the pet.i.tioners. That is, for the Custom House officials, and in favor of the Writs.

The Chief Justice is also on record to the effect that he continued to issue the Writs; but if so, no officer of the king ever dared to present one of them in Boston! The famous (and infamous) Writs of a.s.sistance were as dead as the mummies of Egypt.

It is from this point of view that the character and work of James Otis appear to the greatest historical advantage. There can be no doubt that his was the living voice which called to resistance, first Boston, then Ma.s.sachusetts, then New England and then the world! For ultimately the world heard the sound thereof and was glad. The American Colonies resisted, and at length won their independence. The sparks fell in France, and the jets of flame ran together in a conflagration the light of which was seen over Europe, and if over Europe, then over the world. The Pre-revolutionist had cried out and mankind heard him. Resistance to tyranny became obedience to G.o.d.

We shall here sketch rapidly and briefly the unsteady way and unfortunate decline of James Otis down to the time of the eclipse of his intellect and his tragic death.

Three months after he had, according to John Adams; "breathed into the nation the breath of life," he was chosen to represent Boston in the legislature of the Commonwealth. All of his colleagues were patriots. Boston was in that mood.

There runs a story that when he was entering upon his duties he was counselled by a friend to curb his impetuosity and to gain leaders.h.i.+p by the mastery of self--advice most salutary to one of his temperament. But it was much like advising General Putnam to be calm at Bunker Hill! Otis promised, however, that if his friends would warn him when his temperature was rising, he would command himself.

It is also narrated that his friends did attempt to pluck him by the coat, but he turned upon them demanding to know if he was a school boy to be called down!

At this time the relations between Governor Bernard and the Legislature were greatly strained. Otis rather increased the tension. A question arose about a financial measure whereby gold was to be exported and silver money retained as the currency of the colony--the former at less than its nominal value--in a manner to juggle the people into paying their obligations twice over. The argument became hot and the Council taking the side of the administration was opposed by the legislative a.s.sembly.

Chief Justice Hutchinson and James Otis got into a controversy which was bitter enough, and which may be ill.u.s.trated with the following letter which James Otis addressed to the printer of a newspaper:

"Perhaps I should not have troubled you or the public with any thoughts of mine, had not his Honor the Lieutenant-Governor condescended to give me a personal challenge. This is an honor that I never had vanity enough to aspire after, and I shall ever respect Mr. Hutchinson for it so long as I live, as he certainly consulted my reputation more than his own when he bestowed it. A general officer in the army would be thought very condescending to accept, much more to give, a challenge to a subaltern. The honor of entering the lists with a gentleman so much one's superior in one view is certainly tempting; it is at least possible that his Honor may lose much; but from those who have and desire but little, but little can possibly be taken away.

"I am your humble servant, "JAMES OTIS, JR."

This controversy continued for some time, and it is thought that to it must be attributed much of the animosity displayed by the Chief Justice towards Otis in the "History of Ma.s.sachusetts Bay."

Mr. Otis continued his aggressive policy in the session of the a.s.sembly held in 1762. It was at this session that the government in the hope of getting a sum of money adopted the ruse of creating an alarm relative to a French invasion of Newfoundland. But the patriots would have none of it. They went so far as to say that if arbitrary government was to be established in America, it made no difference whether the Americans should have King Stork or King Log. To this effect ran a resolution offered by James Otis:

"No necessity 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."

It is said that when this resolution was offered a loyalist member cried out in the Virginian manner, "Treason, treason." It was in this way that Mr. Otis gained the undying enmity of the King's party in America.

It was in the period following his legislative service that James Otis prepared his powerful pamphlet ent.i.tled "A Vindication of the Conduct of the House of Representatives of the Province of the Ma.s.sachusetts Bay." In this work he traverses and justifies the course pursued by the patriot legislature during the sessions of his attendance.

Great was the joy of the American Colonies at the conclusion of the French and Indian War. The Treaty of Paris in February of 1763 conceded Canada to Great Britain and insured the predominance of English inst.i.tutions in the New World.

The animosities of the Americans towards the mother country rapidly subsided. Meetings were held in the princ.i.p.al towns to ratify the peace. At the jubilee in Boston, James Otis presided.

He made on the occasion one of his notable addresses. He referred with enthusiasm to the "expulsion of the heathen"-- meaning the French, and then expressed sentiments of strong affection for Great Britain and appreciation of the filial relations of the American Colonies to her.

In these utterances Otis reflected the sentiment of the Bostonians and of the whole people. The General a.s.sembly of Ma.s.sachusetts took up the theme and pa.s.sed resolutions of grat.i.tude and loyalty. At this particular juncture the Americans did not antic.i.p.ate what was soon to follow.

The English Ministry was already preparing a scheme for the raising of revenue in America: The question of the right of taxation suddenly obtruded itself. The Americans claimed the right as Englishmen to tax themselves. The English ministers replied that Parliament, and not the Colonial a.s.semblies, was the proper body to vote taxes in any and all parts of the British Empire. The Americans replied that they were not represented in Parliament. Parliament replied that many of the towns, s.h.i.+res, and boroughs in England were not represented. If they were not represented, they ought to be, said the Americans;--and thus the case was made up.

By the beginning of 1764 it was known that the Ministers had determined to make a rigorous enforcement of the Sugar Act. Than this, nothing could be more odious to America.

In the spring of the year just named, the citizens of Boston held a great meeting to protest against the impending policy of the crown. As a member of the a.s.sembly and as chairman of a committee Mr. Otis made a report which was ordered to be sent to the agent of the government along with the copy of Otis's recent pamphlet, "The Rights of the British Colonies a.s.serted and proved."

At this time Lieutenant-Governor Hutchinson was about to become the representative of the Colony in its contention with the crown and for some reason, not very apparent, Mr. Otis favored his appointment. Governor Bernard, however, opposed the measure, and Hutchinson declined the appointment. Otis's course was censured by the patriots and his popularity was for the while impaired.

However, he took strong grounds against the Sugar Act, and soon afterward still more strenuously opposed the Stamp Act.

He regained the impaired confidence of the people and at the close of the session of the a.s.sembly he was appointed chairman of a committee to correspond with the other Colonies, and thus to promote the common interest of all. This, after the intercolonial conference which Franklin had promoted, was perhaps the first step towards the creation of the Continental Congress.