A Rhetorical Analysis of James Otis's "Against Writs of Assistance"
Copyright 2000 Tim Borchers. All rights reserved.
James Otis, Jr. has been an obscure figure in the history of the United States. Today, he is recognized by political and legal scholars as being the inspiration behind the Fourth Amendment to the Constitution. Other jurists see him as the founder of jurisprudence. Historians view him as igniting one of the sparks of the American Revolution. These scholars all focus on a five-hour speech delivered by the Massachusetts politician, and former customs official, to the Superior Court in Boston in 1761. Scholars in public address have largely ignored Otis's influential address. Those who have studied Otis-many from other disciplines-have presented conflicting accounts of his speech and the rhetorical strategies he used. Scholars can not even agree on the date of the trial. This study synthesizes the extant research on Otis to argue he employed natural rights as a warrant for his arguments. The paper describes the persuasive strategies Otis used and presents a view of their effect.
February 24, 1761 is a day that lives forever in the history of our nation. On that cold day, Boston attorney James Otis, Jr. confronted the colonial government of Massachusetts, asserting in forthright terms that colonists had the right to be secure in their own homes. At question were writs of assistance-unlimited search warrants issued by the king to colonial customs agents. John Adams, then a twenty-five year old attorney who witnessed Otis's fiery oratory, wrote, "Then and there was the first scene of the first act of the opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born" (Life and Works 10: 248). Consequently, Otis's Against Writs of Assistance has been included in a multitude of public address anthologies (McCarthy, Lee 23-28, Mathews 17, Depew, Bryan 27, and Brewer 3125-3130).
The Speaker
Otis was born Feb. 5, 1725 at West Barnstable, MA into the high society of the Cape Cod region of Massachusetts. In fact, Otis's generation was the fifth to live in the new colonies of America. Otis's father, Colonel James Otis, Sr., had long been a leader in the political and mercantile world of Massachusetts (Galvin 14), serving as the Speaker of the Massachusetts House of Representatives and head of the popular party (Galvin 16). The younger Otis was "graduated" from Harvard University in 1743, where he studied the classics and read Greek poetry and prose. In 1755, Otis married Ruth Cunningham, daughter of a trader and heir to substantial fortune (Galvin 16). By trade, the younger Otis was a lawyer, trader, pamphleteer and politician. Politically, Otis was ultra-conservative (Oliver 46), loyal to the King, and desired colonial representation in Parliament (Oliver 46). Otis fought against corruption in colonial politics, desiring reform, rather than revolution (Galvin 38).
A month after this famous speech, Otis was elected to the Massachusetts House of Representatives. During his eight-year career in Massachusetts politics, Otis wrote four essays, which extend his doctrine of natural rights: Vindication of the House of Representatives of the Province of Massachusetts-Bay, Rights of the British Colonies Asserted and Proved, A Vindication of the British Colonies, and Brief Remarks on the Defense of the Halifax Libel. Otis also organized, and was elected a Representative to, the Stamp Act Congress which drafted a petition sent to Parliament. By 1766 the act was repealed.
On Sept. 5, 1769, Otis and a political opponent, John Robinson, engaged in a fight, during which Otis received a large gash on the head which "contributed essentially to his subsequent derangement" (Tudor 365). For the next 14 years, he tormented the city during fits of insanity. He was struck by lightning and killed instantly on May 23, 1783 at Andover, MA at age 58.
The Political Climate
The political climate of 1750-1761 saw the new colonies struggling with Britain for representation and equality. The British Parliament was repeatedly trying to exert political and economic influence over the colonies having seen its debt grow from 72 to 123 million pounds following the Seven Years War in North America. From the British point of view, America was enjoying great advantages and the British believed the colonies should reimburse the home country for some of the costs of the defense (Galvin 12). In 1760, William Pitt sent letters to colonial governors ordering them to put a stop to all smuggling and "make examples of those who were caught at it" (Galvin 12). The newly appointed Governor of Massachusetts, Francis Bernard, saw the monetary advantage he could gain from doing his part to stop smuggling. At this time, Otis was the crown official most involved with prosecuting smugglers. Disgusted with corruption in customs procedures and incompetence that characterized crown appointees, (Galvin 13) he became sympathetic to the colonial traders, of which his family was a part.
Governor Bernard, to solidify his fight against smugglers, chose crown loyalist Thomas Hutchinson for the position of chief justice of the Superior Court over James Otis's father. Hutchinson's appointment not only angered Otis, but alerted him to an "evil plot" to consolidate tyrannical power in the hands of a few individuals in the crown government (Galvin 23). Thus, revenge and politics drew Otis into Massachusetts politics. With King George II's death in October of 1760, the surveyor general of customs in North America asked for renewal of writs of assistance, or permission to search and seize contraband with no limitations (Galvin 27-28). The renewal provided an opening for Boston's merchants to challenge the writs before the Superior Court. Otis and Oxenbridge Thacher were chosen to represent the merchants while Otis's mentor Jeremiah Gridley argued for the colony.
The trial was held in the council chamber of the Old State House in Boston during the Superior Court's regular session. A March 29, 1817 letter from John Adams to Otis biographer William Tudor eloquently painted the scene of the writs of assistance trial:
Round a great fire, were seated five Judges, with Lieutenant-Governor Hutchinson at their head, as Chief Justice, all arrayed in their new, fresh, rich robes of scarlet English broadcloth; in their large cambric bands, and immense judicial wigs. . . Two portraits, at more than full length, of King Charles the Second and of King James the Second, in splendid golden frames, were hung up on the most conspicuous sides of the apartment." (Life and Works 10: 246)
The Audience
Of course, the primary audience Otis addressed was the Superior Court's five members. His remarks were no doubt aimed at winning a verdict against the writs. But the immediate audience also included approximately 100 members of the bar and public. While history has not recorded who or how many other people saw the trial, Dickerson wrote that up to one hundred people could have crowded into the council chamber of the Old State House (43). While Dickerson claimed this was only a tiny percentage of the population of Massachusetts, evidence exists that many read about the trial in pamphlets of the time or heard about it on the streets. Frese maintained "it is difficult to imagine that in a town as interested in trade and as provincial as Boston nothing would be said about the trial between court terms either by the merchants or their lawyers" (497). Frese said that at the least, Adams circulated notes of Otis's speech among his friends (498). Finally, the Massachusetts Spy, twelve years following the case, re-printed Otis's remarks for many others to read when the writs were again being challenged by the Boston traders. Eventually, as stated earlier, the writs were ruled illegal. Otis, appearing on behalf of Boston's traders, no doubt constructed arguments the traders would understand and rally behind.
Rhetorical Strategies
John Adams wrote that Otis employed "a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities" (Adams, Life and Works 10, 248). Except for these brief comments, there are no critical examinations of Otis's famous speech. This study identifies four rhetorical strategies that stand out as being particularly persuasive: (1) Otis's alignment with the king; (2) Otis's invocation of a higher being; (3) Otis's demonstration, by example, of the disadvantages of issuing the writs; (4) Otis's acknowledgment that some writs were legal.
Otis, facing the life-size portraits of two British monarchs, portrayed himself on the side of the kings. He argued the case "with pleasure" because it occurred at a time when "we hear the greatest monarch on earth declaring from his throne, that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogative of his crown." By praising King Edward, the Superior Court could not accuse Otis of treasonous behavior, especially when Otis pointed out that the monarchy was not beyond reproach: "And it is in opposition to a kind of power, the exercise of which in former periods of English history, cost one king his head and another his throne." Besides protecting himself from accusations of treason, Otis's exclamation that the king desired liberty placed the Superior Court, should they vote for the writs, at odds with the monarch. Otis's acknowledgment of the king's position, then, served to both protect Otis and threaten the Superior Court.
Second, Otis repeatedly invoked the name of God. Natural law is based on the notion of a higher being and Otis let his audience know that he had God's pleasure. In his opening remarks, Otis argued that God would allow him to argue against the writs: "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." In another instance, Otis lamented that the writs would allow "the menial servants" of customs agents to "lord it over us" by using the writs as they pleased. This, argued Otis, violated God's order because servants of servants were the "most despicable of God's creation." Thus, not only did Otis invoke God's blessing on his arguments, but he pointed out that the writs violated God's natural order.
Third, Otis used direct evidence to demonstrate the disadvantages of supporting writs of assistance. In his introductory remarks, Otis equated the writs with "slavery" and "villainy." He then proceeded to demonstrate how the writs would be misused. He said, "It is a power that places the liberty of every man in the hands of every petty officer." He continued, "a tyrant may in a legal manner also, may controul, imprison, or murder any one within the realm." He also argued that "even their [customs officials] menial servants are allowed to lord it over us." Otis presented an example of one Mr. Ware, who used his writ of assistance to gain revenge on a constable and judge who had ruled against him. These arguments exemplified for the public what might happen should the writs be issued. For the Superior Court, these arguments were probably difficult to refute or belittle. Otis directly showed how liberty would be jeopardized if writs were granted.
Finally, Otis admitted, in the beginning of his speech, that some writs were legal-those that conformed with the law. Otis argued that "special writs, directed to special officers, and to search certain houses, &c. especially set forth in the writ, may be granted." Therefore, Otis argued that not all writs were illegal and that natural law did not apply in every situation. He thus presented a realistic, legal position that would have bolstered his credibility as a jurist knowledgeable of natural law. The view of him as a wild revolutionary would have been softened given this adherence to British law. The strategy also provides insight into Otis's political ideology of being loyal to the crown, yet abhoring the corruption of crown officials. While natural law was his basic premise, Otis recognized the need for exceptions.
Otis's Success
John Adams, writing nearly fifty years after Otis's speech, was enthusiastic in his recollection of the success of the speech: "Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born" (Life and Works 10: 248). As this paper has argued, history has not been so kind. Benson argued that "some historians have overcredited the effect of this speech (262). Dickerson has also expressed reservations about the contemporaneous effectiveness of Otis's speech (40-75). While modern historians are probably more accurate than Adams's exuberance, Otis's oratory should not be totally discredited.
First, the Chief Justice "possibly feeling the emotion in the open courtroom, adjourned the case until fall to give himself time to write to England for instructions" (Pleasants 21). In November 1761, the court ruled writs were indeed legal. However, Adams wrote that even though the court granted the writs, he "never knew that they [customs agents] dared to produce them or execute them in any one instance (Life and Works 10:248). Frese noted that Otis's arguments "formed the basis of many subsequent refusals to grant the writ in other colonies (498). Five years later, in 1766, the matter was settled when, based on a Connecticut appeal to Britain, Attorney General William de Grey decided that "any deputation giving the colonial customs officials general powers of search was not founded in law" (Frese 504).
As for the popularity Otis may have achieved because of the speech, Tyler argued the speech "made him at once a leader in public opinion in New England respecting the constitutional rights of the colonies" (401). Further, Otis was elected almost unanimously to the state legislature one month after the trial (Adams, Life and Works 10:248). It is entirely probable that colonists knew of Otis's speech. Frese argued that it was likely the speech was discussed and copies distributed (497). The Massachusetts Spy, a radical journal published in Boston printed the speech in 1773, when writs again were questioned. Otis's use of natural rights to argue against a law he felt was unjust supports Jamieson's (238) conclusion. Publicly rejecting the injustice of writs of assistance is another explanation for Otis's popularity. Frese concluded that "we wonder if his arguments did not have more influence than can be proved" (497).
Today, jurists praise Otis's initial formation of constitutional law. New York attorney Daniel J. Kernstein argued the Fourth Amendment to the Constitution is "directly attributable to Otis's courtroom argument. . . His role in the Writs of Assistance case was an important part of the intellectual framework of our Constitution" (2). This view is supported by numerous political science textbooks which discuss constitutional law (Burns and Peltason 188). Former Massachusetts Supreme Judicial Court Chief Justice Edward F. Hennessey remarked:
Many momentous events have occurred in three centuries before the high court of Massachusetts. None is more significant, more dramatic, more compelling in its lasting effect upon America-indeed upon the whole Western world-than the brilliant argument against writs of assistance offered by James Otis, Jr., before the court in 1761. (31)
Even today, advocates use natural law as a basis for argument. Supreme Court Justice Clarence Thomas, for example, espoused the natural rights doctrine in many of his legal writings and when he testified at Senate confirmation hearings. Some say "right to die" advocate, Dr. Jack Kevorkian, is arguing from the principle of a higher moral law. Studying Otis's historic use of natural rights allows communication scholars to better understand contemporary uses of this persuasive strategy and its effects. Jamieson concluded, "The topos [natural law] is uniquely useful where an ultimate appeal is required, and that it can be used, rendered both credible and persuasive, because it satisfies a psychological need of men [sic]" (241). For the colonists of 1761, if not for Otis himself, that need was freedom from tyranny.