The Cambridge History of English and American Literature in 18 Volumes (1907–21).
VOLUME XV. Colonial and Revolutionary Literature; Early National Literature, Part I.
§ 2. James Otis
Of the first notable contribution to the literary history of the Revolution we have, unfortunately, only a second-hand report. When, in 1761, following the death of George II and the accession of George III, the surveyor-general of customs at Boston applied to the Superior Court of Massachusetts for the reissuance of writs of assistance, granting authority to search for and seize uncustomed goods, some merchants of Boston and others combined to oppose the application. James Otis the younger, for ten years past one of the leaders of the Massachusetts bar, and lately advocate-general, who, unable to support the application for the writs, had resigned his office, made the leading argument for the petitioners. In a great speech, the substance of which has survived only in notes taken at the time by John Adams, then a young lawyer, and more fully written out many years later, Otis challenged the writs 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.” At once general in its terms and perpetual in its operation, lacking the exact specification of place and circumstance which a search-warrant ought to contain, such a writ was on both accounts illegal. The freedom of one’s house was violated by it; the only precedent for it belonged to the days of arbitrary power under Charles II. “No acts of Parliament can establish such a writ.… An act against the constitution is void.”
Otis could impede, but he could not defeat, the applicaiton, and the writs were eventually issued. He had, however, raised the important question of the application of English law to the colonies, and the nature and extent of the “rights of Englishmen” which the colonial charters, in express terms, had guaranteed. Elected a member of the House of Representatives, he presently led an attack upon Governor Bernard for fitting out an armed vessel without the approval of the House; drafted a communication in which the governor was charged with “taking from the House their most darling privilege, the right of originating all taxes”; and late in 1762 published his first political pamphlet, A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts-Bay, in which, mixed with extreme praise of the King of Great Britain and denunciation of the King of France, and vague suggestions as to the nature of human rights, the privileges of the colonies under the British constitution were stoutly maintained. Neither historically nor legally was the argument beyond question, and the claim of right was a call to the future rather than an interpretation of the past. What was said, however, was said with vigour and incisiveness, and to Otis’s provincial audience carried weight.