“American Independence was then & there born.”
John Adams wasn’t talking about July 4, 1776, and the Declaration of Independence.
He was referring to the beginning of the real American Revolution that kicked off years earlier in February 1761. That’s when James Otis Jr delivered a fiery 5-hour speech railing against the writs of assistance.
While the Declaration of Independence was a seminal moment in the Revolution, it was the culmination of more than 15 years of radical changes in the minds and hearts of the people that started with Otis’s speech.
BACKGROUND
As the Seven Years’ War dragged on, Parliament found itself struggling under enormous levels of debt. In an effort to increase revenue, the British started strictly enforcing various long-standing mercantilist laws – referred to by the colonists as “acts of trade” and navigation – while aggressively cracking down on smuggling and enforcing tax collection.
To crack down on tax evasion and undermine the thriving black market, British customs agents relied on writs of assistance. These were essentially open-ended general warrants authorizing the holder to search businesses and private homes for smuggled goods.
Writs of assistance did not require any specifications about the place to be searched or what types of goods the agents were looking for. They were also transferable from one agent to another, and could be used repeatedly for different searches.
They were used as a substitute for specific search warrants, and didn’t expire until six months after a King died.
Things came to a head when that happened. King George II died in 1760, meaning all of the writs tied to his reign expired. When customs officials in Massachusetts tried to obtain new writs under King George III, it created a procedural opening to challenge the validity of writs before they were reissued and put into constant use.
The colonists believed the court should refuse to issue new writs because they were general warrants – and exceptionally intrusive.
With the door open to take on the writs, colonial merchants filed suit against customs officer Charles Paxton. The case landed in the Massachusetts Superior Court presided over by Chief Justice Thomas Hutchinson.
James Otis Jr. served as an advocate general in the vice-admiralty court. With the writs of assistance controversy coming to a head, he resigned his position and agreed to represent the Boston merchants.
And he did so free of charge. In a letter to William Tudor, John Adams said “great fees” were offered, but Otis insisted, “In such a Cause, I despise all fees.”
THE SPEECH
Instead of merely arguing the case from a technical standpoint, Otis attacked the very constitutionality of the writs. In another letter to William Tudor, Adams said, “Otis demonstrated the illegality, the unconstitutionality, the Iniquity—& inhumanity of that writ in so clear a manner that every man appeared to me to go away ready to take arms against it.”
Otis opened his salvo against the writs by characterizing them as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book.” [Emphasis added]
A year later, Otis explained exactly what he meant by arbitrary power, saying in plain English, it means “no more than to do as one pleases.”
The idea that Parliament was exercising “arbitrary power” became a common refrain in the years leading up to the Declaration of Independence. It was often referred to as a “usurpation” or theft of power.
In fact, the declaration refers to the list of objectionable actions taken by the British not as “grievances” but as “injuries and usurpations.” In other words, it was a list of grievances related to the exercise of arbitrary power.
Otis argued that this exercise of arbitrary power, sanctioned by writs of assistance, trampled on “one of the most essential branches of English liberty – the freedom of one’s house,” and he famously declared, “A man’s house is his castle,” adding that “while he is quiet, he is as well guarded as a prince in his castle.”
Writs of assistance, Otis argued, “totally annihilate that privilege.”
Otis went on to declare that “reason and the constitution are both against this writ,” and he asked a rhetorical question, where are they authorized by law?
“Let us see what authority there is for it. Not more than one instance can be found of it in all our law books.”
By virtue of their unconstitutionality, Otis called the writs “void.” In other words, they didn’t exist as a matter of law. He insisted, “No acts of Parliament can establish such a writ; though it should be made in the very words of the petition.”
This was the root of every colonial objection to British authority that would ultimately lead to independence: the British government was exercising power that it didn’t constitutionally possess.
Otis hammered this point home, declaring that such acts were not law at all.
“An act against the constitution is void.” [Emphasis added]
Otis went beyond the constitutional ramifications, arguing “all these acts to be null and void by the law of nature,” as well as by “the American charters, because America was not represented in Parliament.”
We don’t have a full transcript of his long speech. As Adams pointed out, reconstructing the whole speech was impossible.
“No man could have written from memory Mr Otis’s Argument of four or five hours in length against The Acts of Trade, considered as Revenue Laws, and against Writts of Assistance, as tyrannical Engines to carry them into execution.”
However, Adams noted that Otis went on to examine the acts of trade one by one, demonstrating “that if they were considered as Revenue Laws, they destroyed all our security of Property Liberty and Life; every Right of Nature and the English Constitution, and the Charter of the Province.”
NATURAL RIGHTS
Otis rooted his entire argument in natural rights dating back to the Magna Carta.
Continuing his correspondence with William Tudor, John Adams summarized the speech, highlighting Otis’s natural rights arguments.
“He asserted that every man, merely natural, was an independent sovereign, subject to no Law but the Laws written on his heart, and revealed to him by his Maker in the Constitution of his Nature and the inspiration of his understanding and his conscience.”
Otis gave a nod to John Locke’s natural rights theory, insisting that a man’s “right to his Life, his Liberty, no created being could rightfully contest. Nor was his right to his Property less incontestable.”
Significantly, these natural rights were the foundation of the British system “wrought into the English Constitution as fundamental Laws.” As such, they weren’t negated simply because a person moved from England to a British colony. Those fundamental rights traveled with them.
“Our Ancestors as British Subjects and We their descendents and British Subjects were intitled to all those Rights by the British Constitution as well as by the Law of Nature, and our Provincial Charter as much as any Inhabitant of London or Bristol or any Part of England; and were not to be cheated out of them by any Phantom of ‘Virtual Representation,’ or any other Fiction of Law or Politicks, or any Monkish Trick of deceit and Hypocricy.”
CONCLUSION
At the time, nobody imagined that a long speech during a legal proceeding would light the fire of revolution, but that’s exactly what James Otis Jr. did.
Adams certainly believed this to be the case. He called Otis “a flame of fire.”
“With a promptitude of Classical Allusions, a depth of research, a rapid summary of historical events & 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.”
Otis did more than attack the writs. He laid the philosophical groundwork that would birth independence, articulating the constitutional argument supporting the colonial cause.
Adams said he did so with power and conviction and “comprehensive knowledge.
“[He] Shewed not only the Illegality of the Writt; its insidious and mischievous tendency; but he laid open the Views and designs of Great Britain of taxing Us; of destroying our Charters and assuming as the Powers of our Government, legislative Executive and Judicial, external and internal civil and ecclesiastical, temporal and Spiritual:
The speech spread a revolutionary fervor throughout the crowd of onlookers, and as news of the speech got out, the flames of revolution began to spread. As Adams described it, “Every Man of an immense crouded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants.”
He went on to call Otis’s stand in the courtroom that day the start of the American Revolution, calling it, “the scene of the first Act of opposition to the Arbitrary claims of Great Britain.”
Taking it further, Adams recognized that American Independence wasn’t born in 1776. It was right there in 1761.
“Then and there the Child Independence was born. In fifteen years i.e. in 1776. he grew up to Manhood, & declared himself free.
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