“Then and there the child Independence was born"


Behind Otis’ resignation lay deep personal animosities that added drama to the legal battle. Not long before, the chief justiceship of the Superior Court—which would hear the arguments on the writs of assistance and render a decision—had fallen vacant. William Shirley, then governor of the colony, had promised the post to Otis’ father, but Shirley’s successor, Francis Bernard, had ignored the commitment and instead named his lieutenant governor, Thomas Hutchinson. Already the target of colonists who resented his nepotistic use of the lieutenant governorship, Hutchinson now earned additional criticism for holding two offices at the same time. And his appointment of course precipitated a feud with the influential Otises; young James, according to rumor, declared “he would set the province in flames, if he perished by the fire.”

Nevertheless Hutchinson, attired in his new judicial robes, took his seat in the great Town-house council chamber as the trial opened on February 24. With him on the bench were Justices Lynde, Cushing, Oliver, and Russell. Gridley opened for the Crown. He argued that such general writs were being issued in England by the Court of Exchequer, which had the statutory authority to issue them; the province law of 1699, he continued, had granted the Superior Court jurisdiction in Massachusetts “generally” over matters which the courts of King’s Bench, Common Pleas, and Exchequer “have or ought to have.”

Thacher replied first. Addressing himself largely to technical issues, he denied that the Superior Court could exercise the right of the Court of Exchequer in England to issue such writs. Then Otis arose to speak. One contemporary critic described him as “a plump, round-faced, smooth skinned, short-necked, eagle-eyed politician,” but to John Adams—who attended the trial, reported it in his diary, and was to write an account of it more than fifty years later—“Otis was a flame of fire.”

He had prepared his argument with care. Although his oration covered some four or five hours and was not taken down stenographically, it left on Adams an indelible impression. With a “profusion of legal authorities,” Adams tells us, “a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away everything before him.” Adams continued: “Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” And he concluded: “Then and there the child Independence was born.”

More important than the electrifying effect of Otis’ argument upon his auditors was its revolutionary tenor. Anticipating ideas that would be set forth in the Declaration of Independence fifteen years later, Otis argued that the rights to life, liberty, and property were derived from nature and implied the guarantee of privacy, without which individual liberty could not survive. (Venturing beyond the immediate issue, Otis declared that liberty should be granted to all men regardless of color—an abolitionist note that startled even the sympathetic Adams.)

Relying on English lawbooks to prove that only special warrants were legal, Otis attacked the writs as “instruments of slavery,” which he swore to oppose to his dying day with all the powers and faculties God had given him. Defending the right of privacy, he pointed out that the power to issue general search warrants placed “the liberty of every man in the hands of every petty officer.” The freedom of one’s house, he contended, was “one of the most essential branches of English liberty.” In perhaps his most moving passage he was reported to have declared:

A man’s house is his castle, and whilst he is quiet he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain....What a scene does this open! Every man, prompted by revenge, ill humor, or wantonness to inspect the inside of his neighbor’s house, may get a writ of assistance. Others will ask it from self-defense; one arbitrary exertion will provoke another, until society be involved in tumult and blood.

With remarkable prescience Otis’ words captured the mood of the midnight visitation by totalitarian police which would terrify a later era less sensitive to individual freedom.