Collected Political Writings of James Otis. Otis James

HISTORY REMEMBERS James Otis Jr. (1725–83) for three things.¹ According to John Adams, Otis’s argument in the Writs of Assistance case of 1761 “began the revolution in the principles, views, opinions, and feelings of the American people.”² By asking the court to render a law “void,” Otis also presaged our modern ideas of judicial review. In addition, Otis is remembered for his intellectual and political leadership of the colonial cause in the 1760s. He wrote some of the most influential essays in opposition to the Stamp Act and coined the phrase “taxation without representation is tyranny.” The Stamp Act Congress was his idea. Finally, Otis is remembered as “crazy James.” In the late 1760s Otis gradually lost his mental composure, and was ultimately exiled from Boston to the countryside. Otis was not so consistent a patriot as Samuel Adams or Patrick Henry, and he could be violent in political combat, leading to speculation that his mental instability had something to do with his political inconstancy and his passionate outbursts against his enemies. All of Otis’s claims to fame—his argument in the Writs case, his revolutionary writings, his intemperance, and his rhetorical or real inconstancy—can be seen in this volume of his writings.

This volume has three parts, containing Otis’s writings on the Writs of Assistance case, on intracolonial matters in Massachusetts in the early 1760s, and on the dispute between Anglo-America and Great Britain of the 1760s, in addition to a few other newspaper essays from Otis’s pen. As a whole, these texts represent the vast majority of Otis’s identifiable political writings.

James Otis, Jr., was born in Barnstable County, Massachusetts, in 1725 to James and Mary Allyne Otis. The Otises were an old Plymouth family of

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some distinction. In the seventeenth and eighteenth centuries, Otises had been known to sit on the Massachusetts council. His father, Colonel Otis, was a second son. As such, he inherited fewer claims to power and place than did his elder brother. One could say the same about the Otis family’s place of origin. Barnstable was in Plymouth. Although it was founded first, Plymouth had long played second fiddle to the Massachusetts colony, a trend that continued after the colonies were merged into the colony of Massachusetts Bay in 1691. Colonel Otis was a successful self-taught lawyer and politician. He rose to become speaker of the Massachusetts House of Representatives, and ultimately to a seat on the colony’s council. The elder James Otis rose through grim determination, penny counting, and deal making. The powers that be in Massachusetts sometimes regarded him as a bit of a political hack, and treated him accordingly. His eldest son and namesake sought to lead a more gentlemanly life.

Jemmy, as young James Otis was known, sought refinement in the republic of letters. He appears to have been an indifferent student as a youth, doing not much more than was required of him to enter Harvard College in 1739. When the Great Awakening hit the college in 1740–41, it energized young Otis, first in religion, but ultimately in study. Once lit, the fire of study burned in him to the end of his days. Determined to recover lost time, Otis locked himself up in his study. One day Jemmy’s classmates dragged him from his books and demanded that he play his fiddle so that they might dance. After complying, Otis halted abruptly and exclaimed, “So Orpheus fiddled, and so danced the brutes,” and ran off. A young man’s time was better spent with his books than at the dance. The college honored Otis with a speaking part at his graduation in 1743.

After leaving Harvard, Otis devoted himself to further study. In time, he would write a treatise on Latin prosody and another on Greek prosody. He published the former in 1760 but, as the colonies lacked the equipment to print Greek, he never published the latter, and ultimately destroyed the manuscript. When the time came to choose a profession, Otis turned to law. Law school not having been invented yet, students in Otis’s day learned the law as apprentices to members of the bar. Otis studied under the tutelage of Jeremy Gridley, the leading lawyer of the colony, and the most philosophical member of its bar. According to Gridley, law was a moral discipline. “It was a favorite saying of Gridley that a lawyer ought never to be without a book of moral philosophy on his table,” John Adams wrote.³ Members of the bar

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understood themselves to be servants of the law. And law, they thought, tethered communal standards of right to a higher law. That was the law to which Otis was attached when he joined the bar in 1748.

Otis rose quickly. He was a diligent student, and soon became deeply learned in the law. He also became an accomplished courtroom orator. James Putnum, a leading lawyer in the colony, said that “Otis was by far the most able, manly, and commanding character of his age at the bar.”⁴ That Colonel Otis was a rising politician and lawyer did not hurt his son’s ascent either. The elder Otis served the colonial governors of the 1750s well and ingratiated himself to the leading faction in colonial politics, which was led by Lieutenant Governor Thomas Hutchinson. His son’s obvious talents, his diligence, and his expanding practice, combined with his connections, allowed him to marry Ruth Cunningham, the beautiful daughter of a wealthy merchant, in 1755. In the late 1750s he became a justice of the peace for Suffolk County (the county in which Boston sits), and he also served as the colony’s deputy advocate general.

Otis’s steady rise in the Massachusetts political establishment changed in 1760 and 1761, when he abruptly resigned from his post as deputy advocate general and took the side of Boston’s merchant community in the Writs of Assistance case. The reasons Otis deserted the government’s side have been the subject of speculation since his day. One side claims that personal pique motivated Otis. Otis, they say, was upset that Francis Bernard, the colony’s newly appointed governor, made Hutchinson chief justice of the colony’s Superior Court in late 1760. In so doing, Bernard passed over Colonel Otis, to whom Governor Bernard’s predecessors had promised the next vacant seat on the court.⁵ Others say that principle motivated Otis. He thought that writs of assistance were instruments of tyranny, and he could not in good conscience defend them, as he would have had to were he still the government’s lawyer.

Writs of assistance were a form of general search warrant that the court gave to customs agents. These writs granted broad discretion to search ships, docks, and other like places. Those who held the writs (and they could be transferred from one person to another) could claim a percentage of whatever contraband was found. Two events underlay the case. First was the French and Indian War, or Seven Years’ War, as it was called in London, between

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Britain and France (and other nations). New Englanders had a nasty habit of evading customs duties and trade restrictions. They did not cease trading with French colonies

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