“Then and there the child Independence was born"

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Otis then proceeded to denounce the Navigation Acts, which had regulated the trade of the empire since the time of Cromwell, exposing their nuisance aspects with great wit. By implication he acknowledged the widespread existence of smuggling, and went so far as to contend that “if the King of Great Britain in person were encamped on Boston Common, at the head of twenty thousand men, with all his navy on our coast, he would not be able to execute these laws. They would be resisted or eluded.” Turning to the similarly unenforceable Molasses Act, passed by Parliament in 1733 to protect the British West Indies planters from the competition of the foreign West Indies, he charged that the law was enacted “by a foreign legislature, without our consent, and by a legislature who had no feeling for us, and whose interest prompted them to tax us to the quick.”

The nub of Otis’ argument was that, even if the writs of assistance had been authorized by an Act of Parliament, “an act against the Constitution is void. An act against natural equity is void; and if an act of Parliament should be made, in the very words of this petition, it would be void. The executive courts∗ must pass such acts into disuse.” This contention—that Parliament was not omnipotent and could be restrained by the unwritten Constitution and a higher law—was a notion soon to be pushed further by John Adams and other members of the Massachusetts bar; the argument became familiar in the colonies well before the Declaration of Independence was adopted.

Measured by its effect on its auditors and its immediate impact on the majority of the court, Otis’ speech ranks among the most memorable in American history, alongside Patrick Henry’s fiery oration protesting the Stamp Act, Fisher Ames’ memorable defense of Jay’s Treaty in the House of Representatives, and Daniel Webster’s classic reply to Hayne. Had a decision been rendered on the spot, Otis and Thacher would have won, for all the judges save Thomas Hutchinson were against the writs; even from his opinion, carefully worded, opponents of the writs could take comfort: “The Court has considered the subject of writs of assistance,” the chief justice announced, “and can see no foundation for such a writ; but as the practice in England is not known [owing to the interregnum], it has been thought best to continue the question to the next term, and that in the meantime opportunity may be given to know the result.” But the crafty chief justice, aware that he stood alone among his colleagues, was merely buying precious time.

Another hearing was held in November, 1761. This time Robert Auchmuty joined Gridley in defense of the writs. The arguments lasted “the whole day and evening,” covering much the same ground as the previous hearing. But the court had now before it information that under the new monarch, George III, writs of assistance were being issued in the mother country by the Court of Exchequer; the Massachusetts judges accordingly felt that they could no longer refuse to issue them too. Writing years later, John Adams recounted that “the Court clandestinely granted them.”

Thomas Hutchinson had won a pyrrhic victory. It was he who had talked the rest of the court into agreeing to a delay to learn what the English practice was and he who was chiefly responsible for granting the writs. He was to pay dearly in personal popularity. Moreover, at the younger Otis’ prompting, the legislature manifested its displeasure with the decision not only by reducing the salary of the judges of the Superior Court, but by cutting out entirely Hutchinson’s allowance as chief justice. And that was only the beginning. During the riots in Boston in 1765 over the passage of the Stamp Act, Hutchinson’s mansion was sacked and his library and papers scattered—out of revenge, Governor Bernard claimed, for his connection with the writs. Henceforward, Hutchinson was to be the leader of the Court party and a frank advocate of coercion to secure colonial obedience to Parliament.

As for James Otis, his initial attack upon the writs had made him the darling of the populace of Boston and the leader of the radical party. Taking the issue to the people at once—in May of 1761—he won election to the Massachusetts General Court. When the news of it reached Worcester, Brigadier Timothy Ruggles, then chief justice of the common pleas court and later a Tory exile, declared at a dinner party in John Adams’ presence, “Out of this election will arise a damned faction, which will shake this province to its foundation.”

Ruggles’ gloomy forebodings proved even more accurate than he could have expected, for the year 1761 triggered the Revolutionary movement, and the Otises, father and son, set off the chain reaction. That same year the father was re-elected Speaker of the House. Together they succeeded in pushing through an act forbidding the courts to issue any writ that did not specify under oath the person and place to be searched. On the advice of the justices of the Superior Court, Governor Bernard refused to approve the legislation; overoptimistically he stigmatized it as a “last effort of the confederacy against the customhouse and laws of trade.”