In addition, a brief look at his family history is required, because the political fortunes of James Otis' father directly influenced the trajectory of his own career. It appears to me 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. 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 cause, as I engaged in it from principle.
James Otis was part of the fifth generation in a family that first arrived in the colonies looking for economic opportunity, and James Otis' grandfather, John Otis III, was the first in the family who went beyond business into politics (Waters 1968 & Halko 1969, p. 609-10). In 1760 James Otis was appointed advocate general of the Admiralty Court, which was the court responsible for dealing with smuggled goods seized in the colonies (Hickman 1932, p. 89.) When the protest launched by the Society for Promoting Trade and Commerce within the Province made its way to court, James Otis would have been responsible for defending the legality of writs of assistance, but instead he resigned his post and took up the cause of the merchants.
Although his strident argument against writs of assistance suggests a strong personal conviction against their use, it has occasionally been suggested that Otis resigned in protest after his father, James Otis Sr., was passed over for a position on the Massachusetts Superior Court in favor of Thomas Hutchinson (National Humanities Institute 1998, Halko 1969, p. 610, & Smith 1978, p. 213). As Maurice Smith puts it in his book the Writs of Assistance Case:
The proposition is that Otis's resignation was precipitated by hostile influence bearing down from on high. From the man, that is to say, whom Otis probably had in mind when denying that refusal to argue for the writ of assistance constituted a desertion of office, namely, Governor Francis Bernard (Smith 1978, 323).
After describing Bernard's maneuvering in January of 1761 as an attempt to keep Otis from arguing in the writs of assistance case, Smith concludes that "the gubernatorial ill will thus evinced in January 1761, after Otis had ceased to officiate as advocate general, probably went far enough back to have played some part in his resignation" (p. 323). Regardless of the ultimate reason for his departure from the post of advocate general, Otis' abrupt reversal lent his argument an extra weight, and although the protest was ultimately unsuccessful, Otis' previous position on the side of the government and subsequent rejection of it undoubtedly lent some extra credibility in the eyes of the merchants and the colonial public (at least for a while).
When James Otis addressed the Superior Court of Massachusetts in 1761, the Chief Justice was Thomas Hutchinson, who had been elevated to the post instead of Otis' own father. Although the animosity between Hutchinson and the Otises is well documented (Maurice Smith dedicates an entire chapter to it in his history of the writs of assistance case), in his presentation before the court James Otis Jr. remains deferential to the British monarchy and the court which represents it, even if he does attempt to play one off of the other, as suggested by Tim Borchers in his rhetorical analysis of Otis' speech (Borchers 2000).
Because Otis' speech before the court was so instrumental in solidifying arguments against parliamentary control over the colonies, it will be useful to examine each portion of the speech in order to chart Otis' argument. The speech itself was noted by John Adams, and formulated into an abstract that now serves as the primary record of Otis' arguments. Otis opens by acknowledging his previous duty to examine and defend writs of assistance before explaining that he stood before the court "in behalf of the inhabitants of this town" stating:
I take this opportunity 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 God has given me, all such instruments of ...
After his somewhat inflammatory introduction, Otis is careful to address the possible incrimination undoubtedly readied to discredit his arguments; that is, his decision to resign his post as advocate general and instead argue against the very position he was meant to defend. The purpose of this is twofold. Firstly, it protects Otis from accusations of treason or sedition, both literally as a means of protecting his own continued livelihood and as a way of keeping his arguments from being discounted out of hand as the embittered ranting of a former employee.
I was solicited to argue this cause 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 cause 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 as it is in opposition to a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne. I have taken more pains in this cause than I ever will take again, although my engaging in this and another popular cause 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.
Almost immediately Otis demonstrates a dedication and fealty to both the monarchy and Britain that complicates the image of James Otis as proto-revolutionary while suggesting that his later critics, who claimed Otis "had betrayed the cause of American liberty," perhaps missed some crucial aspects of Otis' character when evaluating his arguments against writs of assistance (Ferguson 1979, p. 194). In fact, James Otis was a hearty supporter of the monarchy and British government in general, and saw any problems as the result of individual, corrupted officials rather than indicative of a systemic problem with the entire structure of imperial governance. Understanding this part of Otis' character further illuminates the motivations behind his unhappiness with Governor Bernard as well as Chief Justice Hutchinson; far from desiring to rebel against the king or the British colonial government, Otis saw it as his duty to expose those corrupt leaders who he thought used their positions improperly, and writs of assistance must have appeared to much too powerful a legal instrument to be left in the hands of leaders so visibly (to him) corrupt.
As Tim Borchers observes, Otis "portrayed himself on the side of the kings," and argued that his opposition to writs of assistance was instead a position directly in line with the monarchy's stated desires, which placed "the privileges of his people" above "the most valuable prerogatives of the crown," prerogatives that could easily include restricting trade with the French and disrupting the transfer of smuggled goods (Borchers 2000). This further implies that should the court rule against him, they will be implicitly counteracting the will of the king. It is a subtle threat, and it seems likely Otis included it both to bolster his own position as well as rattle Chief Justice Hutchinson, among others: "for all his display of shock and anguish at the general writ of assistance and the enormities it stood for, Otis must have rather enjoyed putting Chief Justice Hutchinson through the hoops" (Smith 1978, p. 330). The personal grudges at work during the trial undoubtedly motivated Otis to pay special attention…
It appears to me 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. 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 cause, as I engaged in it from principle.
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