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Essay: The Mad Patriot

1 At the time he was representing several merchants who were contesting Britain’s arbitrary granting of search warrants without due process, known as Writs of Assistance, which were being misused in an attempt to finally enforce the century-old Acts of Trade and curtail unbridled smuggling. All of Boston’s political elite turned out for what had the makings of great colonial entertainment. Otis, the most successful and well-known of all the attorneys in New England, who recently resigned his lucrative position as Advocate General in protest over the Writs, was pitted against his old mentor in law, Jeremiah Gridley, who was defending the case for the Crown. Otis had served his legal apprenticeship with Gridley, and now teacher and pupil were about to do battle over the biggest legal encounter since the Salem Witch Trials. Furthermore, the personal antagonism between the chief justice presiding over the case, Thomas Hutchinson, and Otis was well-known and the subject of much gossip and speculation. In fact, by this time, most colonists sided with Otis in disliking Hutchinson, who, besides serving as Chief Justice, simultaneously held the positions of Lieutenant Governor, member of the Governor’s Council, and Judge of Probate. Resentment of this patrician multiple office holder was rampant, and Hutchinson’s prior public endorsement of the Writs, which today would have been grounds for recusing himself, made the tension in the room profuse. The audience expected oratorical fireworks.

2The Old Town House in Boston was the Carnegie Hall of politics. Besides housing the Massachusetts House of Representatives and the Governor’s Council, the west end of the building was home to the Superior Court. For the trial, every seat and every inch of standing room was occupied, while many waited outside with an ear to the door. Despite the cold weather outside, the packed audience made the room practically balmy. First up was the wizened Gridley, who defended the Writs as legal and just. He cited statutes dating back to Charles II that supported his position, as well as actions taken during the reign of William III.

3Answering Gridley, Otis’s assistant Oxenbridge Thatcher, an attorney of nearly equal well-deserved repute, delivered a strong but brief confutation. Then came the main event. One can imagine that as his former pupil rose to excoriate his argument, a warm, proud smile appeared faintly on Gridley’s ripened countenance. The audience must have hushed, scrutinizing this fine-looking, earnest younger man, as he took his place before the bar. Depicted by a contemporary as a “plump, round-faced, smooth-skinned, short-necked, eagle-eyed young politician” (Hosmer 42), James Otis then proceeded to deliver a speech that 19th century historian John Clark Ridpath described as, “the greatest and most effective oration delivered in the American colonies before the Revolution” (47).

4Otis was nothing short of brilliant. During the next four hours he built on the saying “a man’s house is his castle” and coined the phrase “taxation without representation is tyranny”—a phrase often erroneously credited to Patrick Henry (Henry echoed Otis four years later) (Ridpath 49–54). Otis also paraphrased John Locke’s earlier proposition that man, in a state of nature, has “a right to life, to liberty, and to property” (Locke sec. 6)—an axiom later appropriated and amended by Thomas Jefferson in the Declaration of Independence. Otis was the first American to utter that phrase publicly as part of an argument against England’s colonial policy. In fact, Otis was the first person to publicly apply Locke’s philosophy, which was originally only intended to justify the Glorious Revolution of 1688, to the colonial predicament (Ward).

5Otis’s clairvoyance that afternoon even anticipated the logic, and nearly the wording, of John Marshall’s Supreme Court power grab sixty-two years hence, in the famous Marbury v. Madison decision, when Otis inferred that a law contrary to the Constitution is void. Otis was both poignant and convincing in his speech: “I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this writ of assistance is.” Otis went on while John Adams and other lawyers recorded phrases in their notebooks that would establish the prose of the revolution. To Adams, Otis was,

a flame of fire;  with a promptitude of classical illusions, 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 rapid torrent of impetuous eloquence, he hurried away all before him. American Independence was then and there born. […] Every man of an immense crowded audience appeared to me to go away, as I did, ready to take up arms against Writs of Assistance. (Ridpath 47)

6Prior to Otis’s speech, colonists’ grievances with Mother England had been trivial. England and America had operated under a policy of “salutary neglect” for nearly a century, where the colonies developed their own trading patterns and traditions of governance. Particularly after the end of the French and Indian War in 1763, tension escalated as the British attempted to reassert their dominion over the colonies, primarily for financial reasons, and the  colonists objected to paying taxes and import duties because of the adverse impact on their pocketbooks. Otis raised the bar on their objections. He cited loftier reasons why colonists should oppose the arbitrary impositions of Parliament. Essentially, he stated that each man is a government unto himself, and such freedom was his natural, God-given right, trumping all other political forces. The role of government was to protect that right, not to inflict or inculcate its own beliefs. A king’s function was to serve his subjects in this regard, not the reverse.

7Astoundingly, Otis presented the notion that these God-given rights were bequeathed not just to property-owning white males, but everyone, including those in bondage. He declared, “The colonists are by the law of nature free born, as indeed all men are white or black. […] Does it follow that tis right to enslave a man because he is black?” (Rights 29). For the first time in American history, a secular speaker of great repute had publicly impeached slavery. The audience had come for fireworks, but they got an atomic bomb. More importantly for our age, it is noteworthy that the American who first espoused individual human rights had not been a hypocrite, unlike Thomas Jefferson who, fifteen years later, somehow perversely rationalized drafting the Declaration of Independence yet still owned slaves.

8Otis put forth these thoughts a year before Rousseau published his Social Contract. Excerpts of his speech were read not only throughout the Colonies, but throughout England and France. His thoughts influenced Edmund Burke, William Pitt and other English Whigs. His fame was “instantaneous and universal” after his “Writs” speech (Tudor 90–91).

9Ironically, history books often refer to Otis in a postscript. Most, when describing the origins of the American Revolution, start with the Stamp Act of 1765, four years after Otis’s “Writs of Assistance” speech. And many, when they mention him at all, lump him together with Samuel Adams as a secondary rabble-rouser and vocal opponent of the Stamp Act, or as just another member of the Stamp Act Congress, when in fact the congress was essentially his idea, cooked up in his sister Mercy’s parlor. By 1770, mental illness had pretty much incapacitated Otis, and he did not play a role leading up to the American Revolution, which also probably accounts for historians’ general neglect.

10Few give Otis the approbation he deserves. For example, he was a major influence in John Adams’ life, ever since that extraordinary February afternoon in 1761. Adams admitted that Otis’s speech changed his life (Adams to Tudor, 29 March 1817). He became an eager admirer of Otis, which, early on at least, approached hero worship. As he rose to prominence as an attorney in his own right, Adams occasionally teamed up with Otis in defense of a particular client, including the famous admiralty trial of Michael Corbet (Rex v. Corbet). And when Otis, in 1769, was beaten half to death by a resentful British tax collector named James Robinson, Adams came to Otis’s assistance as attorney in the subsequent suit for damages. Adams managed to extricate an award of 2,000 pounds for Otis, who promptly declined the money in exchange for Robinson’s public apology (Ridpath 76).

11Notwithstanding the facts, Otis is barely mentioned in even the most scholarly biographies of Adams, and by their omission, those biographers miss one of the most important claims they can make about their subject: Adams was the only Founding Father present at the very inception of the Revolution—Otis’s “Writs of Assistance” speech, at its pinnacle—the Declaration of Independence, and at its actual conclusion—the signing of the Treaty of Paris (1783) in which independence was acknowledged by Britain. Such a claim cannot be asserted by any other revolutionary figure and makes Adams’ life all that more extraordinary.

12Similarly, Otis served as mentor to Adams’ cousin Samuel, and without that association, perhaps history may never have evoked the name of Samuel Adams in quite the same way. In 1761, Sam Adams had been a failed businessman, fruitless tax collector, suspected embezzler, but also an aspiring and talented local politician. Otis had known Adams for eighteen years, having met while matriculating three years apart at Harvard. Clearly, though Otis was the younger of the two, he was the more venerated associate.

13Three months after delivering his “Writs of Assistance” speech, riding a groundswell of popularity, Otis was elected to the Massachusetts House as one of four representatives from Boston. British loyalist Timothy Ruggles, a hero of the French and Indian War, a judge and fellow House member, accurately predicted to dinner guests, “Out of this (Otis’s) election will arise a damned faction which will shake this province to its foundation” (Tudor 92).

14Sam Adams and Otis formed a team. Otis roused passions from within government, and Adams agitated from without. Their alliance is truly one of the most underrated collaborations in American history and gave Adams legitimacy and notoriety beyond Boston by virtue of his association with Otis. Cousin John described them in a letter to Jedidiah Morse on December 5, 1815: “If Otis was Martin Luther, Samuel Adams was John Calvin. If Luther was rough, hasty, and loved good cheer, Calvin was cool, abstemious, polished and refined” (Adams, Works). Their antics over the next several years directly inspired Patrick Henry’s Virginia Resolves.

15Indeed, during that time period, Otis wrote two political pamphlets, “Rights of the British Colonies Asserted and Proved” and “Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts-Bay” that rivaled John Dickinson’s Letters from a Farmer in Pennsylvania in popularity and influence. Otis’s “Vindication” was one of the most widely read early statements of the fundamental principles of American revolutionary theory. According to the Otis biography in Sibley’s Harvard Graduates, “Vindication” came as a “religious revelation” to American colonists (Sibley).

16In 1818, in a letter to Otis’s biographer William Tudor, John Adams summed up the influence of “Vindication”:

Look over the Declarations of Rights and Wrongs issued by Congress in 1774. Look into the Declaration of the Independence in 1776. Look into the Writings of Dr Price and Dr Priestly, look into all the French Constitutions of Government, and to cap the Climax, look into Mr Thomas Pains [sic] Common Sense, Crisis and Rights of Man; what can you find that is not to be found in Solid Substance in this “Vindication of the House of Representatives”? (Adams to Tudor, 5 Apr. 1818)

It should also be noted that another consequence of Otis’s tenure in the House was that, for the first time and at his insistence, sessions of the legislature were opened to the public, starting an American tradition. When any individual now sits in the gallery of Congress or watches those proceedings on C-Span, a hearty thanks should be tacitly uttered to James Otis.

In his book Orators of the American Revolution, E. L. Magoon states,

In the primitive opposition made by Otis to the arbitrary Acts of Trade, aided by the Writs of Assistance, he announced two maxims which lay the foundation of all the subsequent war; one was, that ‘taxation without representation was tyranny,’ the other, ‘that expenditures of public money without appropriations by the representatives of the people, were arbitrary, and therefore unconstitutional.’ (Magoon 71)

Despite incontrovertible acknowledgments of Otis’s significant contribution to the American Revolution, why has he been so ignored through the years?

17First, the old adage that history is written by the victors has never been truer than in this instance. Otis, throughout his career, showed signs of mental instability. He was prone to fits of rage, uncontrollable outbursts, and incoherent babbling that grew worse with time. This condition accelerated exponentially after his public beating by Robinson, in concert with an increased consumption of alcohol, an estranged marriage, and disillusionment concerning offspring. His mental decline led eventually to his incapacity for public service. His fellow patriots plotted his early retirement as he became more of an embarrassment to The Cause. Samuel Adams, who by then held his own legislative seat, immediately stepped into Otis’s shoes, becoming the singular commander-in-chief of the Boston revolutionary movement. Adams then recruited a wealthy, vainglorious young merchant by the name of John Hancock to replace Otis as his new confederate. To the victors went the spoils, in this case the credit for the crusade that culminated in the battles of Lexington and Concord.

18There was perhaps another reason why Otis’s early retirement was greeted with relief by his fellow patriots. Throughout his public career Otis was dogged with the charge that his motivation for opposing the Crown at every opportunity was not patriotism but revenge. His father, James Otis, Sr., (known as Colonel Otis), was promised the appointment as a justice of the Superior Court of the province by Governor William Shirley once a position became available. That promise was re-affirmed by subsequent governor Thomas Pownall. But Pownall was recalled and Francis Bernard put in his place, and when chief justice Stephen Sewall died, Bernard appointed his lieutenant governor, Thomas Hutchinson, instead of Colonel Otis to the position. Young James Otis, incensed by the Crown’s rejection of his father, immediately resigned his post as advocate general of the Admiralty Court, and instantly took up the merchants’ cause which lead to his “Writs of Assistance” speech. Ironically, as advocate general, his duty would have been to prosecute the merchants, which lead to the self-proclaimed notion that he resigned out of principal. However, Otis’s enemies disseminated a quotation, which he vehemently denied, that he had sworn “if his father was not appointed […] he would set the whole province in a flame (even) if he perished in the attempt” (Bailyn 52).

19Whether Otis’s motivation was out of spite or ethics is a subject of conjecture. Chances are it was a little of both. But to contemplate that the spark that ignited the American Revolution may have been caused by an extraneous personal slight may be interesting fodder for modern historians, but not the stuff that inspires a rebellion. Thus, by Otis fading into the background, the contemporary disputation over his character, which in turn was a potential blemish on an otherwise noble revolution, became moot.

20Lastly, in his more acutely insane latter years, Otis started wavering in his espousal of rebellion. Perhaps in a deluded hope that he and his father might still woo favor from the Court Party, or to appease his politically conservative wife, Otis would occasionally speak in reconciliatory terms. At other times, however, he was just as rabid as any Adams, Warren, or Hancock, and such dithering was indeed embarrassing to the other Sons of Liberty, who naturally stepped away from their earlier position of looking to Otis as their standard-bearer.

21As a result of all this, we have been duped by Otis’s contemporaries in their interment of his political and social import. Consequently, the only extensive biography ever written on Otis was published in 1823 by William Tudor, the son of John Adams’ former law clerk, and a preponderance of textbooks that deal generally with the American Revolution fail to mention either Otis or the Writs of Assistance.

22Further thwarting his posthumous recognition was an act taken by Otis himself. In a flurry of sheer madness, Otis spent two complete days destroying all his correspondence and other writings, thus annihilating a mammoth slice of the details of the more productive portion of his life. As a result, a vast archive of Otis’s personal papers similar to the curated collections of other Founding Fathers is nonexistent, and what little remains is everything produced after his two days of destruction—by and large the pontifications of a madman rambling in and out of perspicuity.

23On December 3, 1771, the selectmen of Boston signed their names to a certificate that stated James Otis was “a distracted, or lunatick [sic] person and a proper subject of a guardian” (“Selectman’s Minutes”) and was taken off, bound hand and foot, to the farm of an appointed guardian. He lived until 1783, mostly unaware of current events. Sadly, he never lived to see his younger brother Samuel Allyne Otis, as the first secretary of the United States Senate, hold the bible as George Washington was sworn in as the first president.

24In his last year of life, he told his sister, famed Patriot historian, poet, and playwright Mercy Otis Warren, that he would like to die by a bolt of lightning. He got his wish. While standing in the doorway of the house of his guardian, speaking calmly to the children of his host, an afternoon thunderstorm discharged a bolt that tore through the house and into the doorway. Otis fell dead without a mark on his body. Hutchinson, who eventually replaced Bernard as governor, earlier conveyed to his former superior the actions of Boston’s selectman in committing Otis. He reported, “Otis was carried off today in a post-chaise, bound hand and foot. He has been as good as his word—set the Province in a flame and perished in the attempt.” (Stark 35). Such a comment could have easily been his epitaph. 

25But while Hutchinson fretted over Otis and his injurious influence, the last civilian governor of colonial Massachusetts might have spent his time more productively had he examined the origins of the sentiment that gave Otis’s “Writs of Assistance” speech such resonance. And indeed, our leaders currently in power today, in the 21st century, would benefit from a similar examination.

26When asked by Tudor to sum up Otis’s life, John Adams wrote, “I have been young and now old, and I solemnly say I have never known a man whose love of his Country was more ardent or Sincere; never one who Suffered as much, never one whose service for any ten years in his life were so important and essential to the cause of his Country as those of Mr Otis from 1760 to 1770” (Adams to Tudor, 25 Feb. 1818).

27Alas, due to the vagaries created from the filtering of events by the social biases of the ruling class, Otis’s dedication and suffering as recollected by Adams have been long forgotten. In the ebb and flow of history, great historical figures who contributed immensely to American political and social institutions, especially minorities and women, have been pushed aside due to their lower hierarchical status to which they were relegated in their lifetimes. James Otis’s own sister, Mercy Otis Warren, who was the first American feminist (she even influenced Abigail Adams when the latter famously lobbied her husband John to “remember the ladies”), is a case in point (Gelles 35–71). In Otis’s circumstance, his mental disorder doomed him to the fringes of history. But it seems that what was once deemed the ravings of a madman now warrant a second look.

28A revolution starts with an irresistible idea that articulates a commonly felt injustice. James Otis articulated that idea. He deserves a place in the pantheon of America’s Founding Fathers. His ideas concerning individual rights and equality for all human beings desperately need to be revisited at this particular time in our own history—when the American experiment into democracy faces overwhelming challenges from within and the need for deep introspection is a requirement for survival.