James Otis was a lawyer, political activist, pamphleteer and legislator in Boston.
Career
By painstaking study Otis became learned in the common, civil, and admiralty law; and his interest in the theory of law was coeval with his interest in the law itself. An enthusiastic student of the ancient classics, he published The Rudiments of Latin Prosody and the Principles of Harmony in Poetic and Prosaic Composition (1760); another treatise, on Greek prosody, remained in manuscript and was destroyed with his other papers. He was also an avid reader of classical English literature, and of ancient and modern works on political theory. As a barrister his mind was supple, his apprehension quick, his pleading, brilliant and captivating; following the superior court circuit, he became known in all parts of the province. Enemies later described him as a smugglers' attorney; actually, he acted as king's attorney in the absence of the attorney general in 1754; and later, Governor Pownall appointed him king's advocate general of the vice-admiralty court at Boston.
In 1760, Pitt ordered the Sugar Act of 1733 to be strictly enforced. The royal customs collectors applied to the superior court of the province for writs of assistance, in order to help them in search of evidence of violation. Otis, in his official capacity, was expected to argue for the writs. Instead, he resigned his lucrative office and undertook, for Boston merchants, to oppose the issuance. Unfortunately the circumstances were such as to cause his motives to be questioned. Governor Shirley had promised to appoint Colonel Otis to the superior bench, and asked Francis Bernard, who became governor in August 1760, to make the promise good. The elder Otis was now speaker of the House, and leader of the bar in the three southern counties; he had great influence over the rural members of the House, and both as member from Barnstable and as colonel of the county militia had cooperated loyally with the administration during the war.
On September 11, Chief Justice Stephen Sewall died. Colonel Otis at once bespoke Lieutenant-Governor Hutchinson's influence to be appointed junior associate justice, supposing the chief justiceship filled from the court itself. James Otis' accoun differs from Hutchinson's, written many years later as to what assurances were given; but Hutchinson was appointed chief justice November 13, 1760. One rumor had it that James Otis then declared "that he would set the province in flames, if he perished by the fire"; another, that he declaimed from the Aeneid, "Flectere si nequeo superos, Acheronta movebo!" Both stories were flatly denied by Otis; and, as John Adams pointed out, he had resigned an office far more lucrative than the one his father wanted; but the Loyalists always believed that his entire political course, and indeed the Revolution in Massachusetts, arose out of frustrated family ambition.
Otis certainly felt that Hutchinson and Bernard had "double-crossed" him, and that they were endeavoring to accumulate the chief offices in the province. In February 1761, Otis and Oxenbridge Thacher argued the illegality of writs of assistance before the full bench of the superior court, in the Council chamber at the Old State House, Boston. The picturesque scene was vividly described by John Adams in 1817 to Otis' biographer: "Otis was a flame of fire! he hurried away every thing before him. American independence was then and there born; the seeds of patriots and heroes were then and there sown . " But exactly what Otis said cannot now be recovered with any exactness. John Adams' notes taken on the occasion contain these significant sentences: "An act against the Constitution is void; an act against national equity is void; and if an act of Parliament should be made, in the very words of this petition, it would be void. The executive Courts must pass such acts into disuse. Reason of the common law to control an act of Parliament. " The phrase, "Taxation without representation is tyranny, " which was not germane to the issue, appears only in Adams' final expansion of his notes, made about 1820.
Otis and Thacher lost their case. But in 1766, Otis' position was sustained by Attorney General de Grey, who ruled that the act of Parliament in question did not authorize the issuance of writs of assistance in the Colonies. The significance of Otis' speech, however, lies in his harking back to the constitutional doctrines of Coke and Sir Matthew Hale, invoking a fundamental law embodying the principles of natural law, and superior to acts of Parliament; a doctrine upon which colonial publicists leant during the next twenty-five years, which was embodied in the federal and state constitutions, and which in its final form became the American doctrine of judicial supremacy.
In May 1761, two months after this speech, Otis was chosen one of the four representatives of Boston to the General Court, the provincial legislature. His father was the same year reelected speaker of the House. Hutchinson credits the two with marshalling the old town and country parties into a popular bloc against the crown officials. In the session of 1761-62, they opposed the administration on sundry questions involving privilege, but promoted a grant of Mount Desert Island to Governor Bernard; this last was really a logrolling device to get royal consent to establishing new townships in that part of Maine. Otis was moderately interested in other new townships, but not those.
In his first political pamphlet, A Vindication of the Conduct of the House of Representatives (1762), Otis made a brief exposition of the rights of Englishmen, and defended his party's policy vigorously. Scurrilously abused as "Bluster" in the Boston Evening Post, February 14, 1763, he lashed back savagely in the Boston Gazette for February 28, Mar. 28, and Apr. il4, 1763. Yet, in the midst of these altercations, he struck a high note of patriotism in a Faneuil Hall speech as moderator of Boston town meeting. He extolled the British Constitution and the King; declared "Every British Subject in America is, of Common Right, by Acts of Parliament, and by the laws of God and Nature, entitled to all the essential Privileges of Britons"; that attempts to stretch the royal prerogative were responsible for whatever unpleasantness had occurred; that "the true Interests of Great Britain and her Plantations are mutual; and what God in his Providence has united, let no man dare attempt to pull assunder. " On other occasions, the vehemence of Otis' language distressed even his friends; and this conduct was the more wondered at because James was normally good-humored and sociable, like all his family.
Friends and foes alike agreed that from 1761 to 1769 Otis was the political leader of Massachusetts Bay, although Samuel Adams was probably more popular in Boston. Otis was also active in local organizations like the "Sons of Liberty, " and the "Corkass, " which met in Tom Dawes' attic and made up a slate of candidates and measures for the town meeting. An appearance of coalition between Otis and Hutchinson in 1763-64, as John Adams remembered, "well nigh destroyed Otis' popularity and influence forever"; and when on February 1, 1764, Governor Bernard appointed Colonel Otis chief justice of the common pleas and judge of probate in Barnstable County, many assumed that the family had sold out. Adams declares that only the revival of attacks saved Otis from defeat in the spring election; but an examination of the newspaper files proves that he was not opposed in 1764.
The next year, when he was scurrilously attacked in the Evening Post (especially in Samuel Waterhouse's ditty "Jemmibullero, " May 13, 1765, in which he is called, among other things, a "rackoon" and a "filthy scunk") he almost failed of reelection. In the meantime, to counteract the new Sugar or Revenue Act of 1764, Otis wrote The Rights of the British Colonies Asserted and Proved, published at Boston July 23, 1764, and reprinted in London the next year. "One of the earliest and ablest pamphlets written from the natural law point of view, " the Rights is a closely reasoned statement of the constitutional position of the colonies in the single commonwealth that Otis believed the British Empire to be. In it were developed the principles recorded in his writs of assistance argument, principles to which Otis remained faithful while he kept his reason. The "wavering" or "retreat" often referred to in secondary accounts is found neither in his writings nor his recorded speeches.
The House adopted Otis' doctrine as its own, and on June 14, 1764, he was appointed chairman of a committee of the General Court to correspond with other colonial assemblies. The proposed Stamp Act soon overshadowed the Sugar Act. The Stamp Act Congress was summoned by a circular letter of invitation to the other colonies, adopted by the Massachusetts House on motion of Otis, who was appointed one of the three Massachusetts delegates. A few days afterward came the news of Patrick Henry's Virginia resolves, which Otis thought treasonable, but which temporarily took the leadership of public sentiment out of his hands, fomenting riots at Boston that summer. Otis much preferred "dutiful and loyal Addresses to his Majesty and his Parliament, who alone under God can extricate the Colonies from the painful Scenes of Tumult, Confusion, & Distress. "
The Congress met at New York on October 7. On this, Otis' second and last journey outside New England, he met other colonial leaders such as Thomas McKean, who later referred to him as "the boldest and best speaker, " and John Dickinson, who carried on a friendly correspondence with Otis for several years, and through him published the "Letters from a Farmer" and Liberty Song in Boston. Otis served on one of the three committees of the Congress, which adopted his constitutional doctrine, while rejecting colonial representation in Parliament, which Otis had proposed in his Rights of the Colonies. It seems probable that Otis' colleagues persuaded him that representation would not help the colonies, for he did not mention it thereafter.
Having failed to persuade Governor Bernard to let the courts function without stamped paper until the act was repealed, Otis and his lawyer friends had plenty of leisure. In the "Monday Night Club" of politicians, Otis was "fiery and feverous; his imagination flames, his passions blaze. " But he also belonged to the "Sodalitas, " a law club that met under Gridley's presidency to study and discuss ancient law; and John Rowe notes Otis' presence at sundry private dinners, public banquets, coffee-house reunions, tea parties, and country-house assemblies. In the same year, he published three pamphlets. One of these, Considerations on behalf of the Colonists, in a Letter to a Noble Lord, was a reply to Soame Jenyns' defence of the Stamp Act. A Vindication of the British Colonies, and Brief Remarks on the Defence of the Halifax Libel on the British-American Colonies, were replies to Martin Howard's Letter from a Gentleman at Halifax, and its sequel.
The first, dated September 4, 1765, was a lively discussion of "virtual" representation. Otis declared that Jenyns' reasoning could as well prove the whole globe, as America, represented in the House of Commons; if Manchester and Birmingham were not represented, they ought to be. His greatest indignation was reserved for Howard's statement that the admission of colonial representation would defile the "purity" and destroy the "beauty and symmetry" of the House of Commons. He challenged the justice of suppressing colonial manufactures, and pointed out the exploitation inherent in the imperial system. But he still stoutly maintained that Parliament had "an undoubted power, authority, and jurisdiction, over the whole. "
In Brief Remarks, he made a furious attack on his critics. Otis' pamphlets probably had more influence in America and England, before 1774, than those of any other American except John Dickinson. They laid a broad basis for American political theory on natural law. Otis avoided the two impasses into which several of his contemporaries stepped: the distinction between external and internal taxation, and the sanctity of colonial charters. But in advocating colonial representation, he took a false turning himself. He had not the foresight to perceive a federal solution: an imperium in imperio was to him "the greatest of all political solicisms. " Nor did he face the choice between submission and revolution. If Parliament's sovereign authority was not recognized "the colonies would be independent, which none but rebels, fools, or madmen, will contend for . Were these colonies left to themselves, tomorrow, America would be a meer shambles of blood and confusion . "
Neither in theory nor in tastes was Otis a democrat; his often vituperative language arose from his own hot passions, not from any catering to popularity. At the spring election of 1766, Samuel Adams, whose qualities were needed to temper Otis' rashness and turbulence, and the Hampshire Cato, Joseph Hawley, were elected with him to the General Court. During the next two years, this triumvirate directed the majority in the House of Representatives. Otis generally prepared the rough draft of the state papers that issued from that body, while Adams did the smoothing and revision. When the General Court met, it refused to reelect Chief Justice Hutchinson and his Oliver associates to the Council, and James Otis was chosen speaker of the House. Governor Bernard negatived both this election and that of six councilors, including Colonel Otis. During the next two years, no opportunity was neglected by the triumvirate to put the Governor and Lieutenant-Governor in a hole; and Otis spent so much time on public affairs that his law practice was almost completely neglected.
When news of the Townshend Act arrived, Otis was prompt to denounce an incitement to violence which had been posted on the Boston "liberty tree. "Presiding over a town meeting that very day, he declared that "no possible circumstances" could justify "tumults and disorders, either to our consciences before God, or legally before men. " Otis also presided over the town meeting on October 28 that launched the non-importation movement. The Massachusetts circular letter, adopted by the House on February 11, 1768, was the joint product of Otis and Samuel Adams. They triumphed when the House voted not to rescind 92 to 17, on June 30, 1768. This spirited defiance did more to unite the colonies than any measure since the Stamp Act. The Massachusetts "92" became another such talisman as No. 45 of the North Briton.
The sloop Liberty case, the news that Otis and Adams were threatened with trial for treason in England, and that troops were being sent to Boston, followed in quick succession. Yet Otis still continued to oppose direct action. He organized and moderated the town meeting of September 12-13, 1768, which quashed proposals of resistance to the landing of troops, and called a convention at Faneuil Hall ten days later. Otis, to the dismay of Adams, refused at first to take his seat in this convention, kept Adams quiet when he did appear, and doubtless showed his hand in the mild resolutions that the convention passed. Considering his repeated efforts to prevent violence, it is not surprising that Otis' irritable nature was stirred to a frenzy of resentment when the publication of some intercepted letters showed that Bernard, and the commissioners of the customs, had been writing home that he was a malignant incendiary.
On September 4, 1769, Otis posted these officials in the Boston Gazette as liars. The next evening he entered the British Coffee House at the site of 60 State St. , where John Robinson and other crown officers were seated. A brawl ensued in which Robinson struck Otis a severe blow on the head with a cutlass or hanger. Otis was finally rescued by outsiders. He sued Robinson and obtained a verdict of £2000 damages; Governor Hutchinson, who was delighted at what he termed "a very decent drubbing, " was planning "to steer this whole business" so as to get Robinson off and reward him with promotion, when Otis, on receiving an apology from Robinson's attorney, released all damages beyond court costs, lawyers' fees, and physicians' bills, which amounted to £112 106 8d.
Robinson's assault finished Otis' career. It is true that for several years his conduct at times had given people cause to doubt his sanity, and an offensive garrulity had been growing on him. His family life was unhappy: Mrs. Otis, "beautiful, placid and formal" was a high Tory. But the crack on his head permanently unhinged his reason. "He rambles and wanders like a ship without a helm, " noted John Adams in January 1770; in February he was "raving mad, " broke windows in the Old State House, fired guns from his window, called on Governor Hutchinson, and craved his protection on the king's highway. He did not stand for election in 1770, but seemed so completely restored in 1771 as to be chosen once more, and for the last time; his course at that session was conciliatory. But by September he was as distracted as ever, and began to drink heavily; and in December 1771 the probate court, on representation that James Otis was non compos mentis, appointed his younger brother Samuel A. Otis guardian. He enjoyed several lucid intervals later; but none of his political opinions recorded subsequent to his injury are important.
After 1771 Otis led a quiet life, well cared for by friends and relatives. On June 17, 1775, he borrowed a gun, and rushed among the flying bullets on Bunker Hill, but returned unscathed. Only fire from heaven could release his fiery soul; death came, as he had always wished it to come, by a stroke of lightning, as he was watching a summer thunderstorm in the Isaac Osgood farmhouse at Andover, on May 23, 1783.