In February 1761, James Otis Jr. argued against writs of assistance in the Boston Superior Court. John Adams, who was in the audience, later wrote that the argument was the birth of the child independence. No text of the argument survives in Otis's hand. Adams reconstructed it from memory decades later. The 1764 pamphlet, The Rights of the British Colonies Asserted and Proved, does survive. It is at the University of Michigan.
Writs of assistance were general search warrants that allowed British customs officials to enter any premises without specifying what they were looking for or why. Boston merchants had been resisting them. When the writ authorizing them came up for renewal in 1761, James Otis Jr., then a lawyer in Boston, resigned as advocate general of the admiralty court to argue against them on behalf of the merchants. The case was heard before the Massachusetts Superior Court in February 1761.
Otis argued that writs of assistance violated the natural rights of Englishmen and that any act of Parliament inconsistent with natural law was void. The court ruled against him. The writs were reissued. But the argument was heard by a young John Adams, who was sitting in the court taking notes. Adams later wrote about the effect of what he heard.
Otis was a flame of fire! With the promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eyes into futurity, and a torrent of impetuous eloquence, he hurried away every thing before him. American Independence was then and there born.
The Rights of the British Colonies Asserted and Proved was published in Boston in 1764. Otis argued that the colonists, as British subjects, possessed all the natural and constitutional rights of Englishmen. Taxation without representation violated those rights. He drew on John Locke's Two Treatises of Government to argue that property could not be taken without the consent of the owners or their elected representatives.
The pamphlet predates the Stamp Act by a year. It was read widely in the colonies and in Britain. It is the documented foundation of Otis's constitutional argument. The University of Michigan holds a digitized copy through the Evans Early American Imprint Collection. It is public domain and freely accessible.
Now can there be any liberty where property is taken away without consent? Can it with any colour of truth, justice or equity be affirmed, that the late act of parliament for making duties payable in the plantations, is consonant with a declaration, that their subjects in America shall not be taxed but by their own consent?
In September 1769, Otis was attacked in a coffeehouse by John Robinson, a customs commissioner Otis had criticized in print. The assault left him with a head injury. His behavior became erratic in the years following. He was declared non compos mentis in 1771. He recovered partially but never returned to public life at the level he had occupied before. He died in May 1783, struck by lightning at his farm in Andover, Massachusetts.
His sister was Mercy Otis Warren. His father was James Otis Sr., speaker of the Massachusetts House of Representatives. The family correspondence is at the MHS. The primary documentary record for Otis's constitutional arguments is the 1764 pamphlet and Adams's retrospective account of the 1761 argument.
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