Otis, James, Jr. (1725–1783)

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OTIS, JAMES, JR. (1725–1783)

Massachusetts lawyer, Harvard graduate (1743), and ideologue of the american revolution, James Otis, Jr., became constitutionally significant with paxton ' scase (1761), which concerned the issuance of writs of assistance by the Superior Court of Massachusetts. Confronted with the reality that the writs, which empowered customs officers to search all suspected houses, typified many kinds of general search warrants within British law, Otis resorted to the higher law. Using sources from magna carta to bonham ' scase (1610), Otis argued not only that incompatibility with natural and common law rendered general searches void but also that the court should proclaim that invalidity. Although he did not advocate outright judicial review of an act of Parliament by a colonial court, the interpretation of the writs that Otis urged on the court would have had that result.

Although Otis's present fame derives heavily from Paxton's Case, he gained little contemporary notice from his performance in it, for his brief was not published until 1773. Rather, the principal constitutional services of the case were that it resulted in Otis's election to the Massachusetts General Court (legislative), thereby giving him a forum for his views and enabling him to assemble and rehearse the constitutional arguments that he later applied to those issues that directly generated the American Revolution.

Limiting the power of Parliament was central to Otis's thought: "To say the Parliament is absolute and arbitrary is a contradiction. The parliament cannot make 2 and 2, 5; Omnipotency cannot do it; the supreme power in a state is jus dicere [to announce the law] only;—jus dare [to construct the law] strictly speaking belongs only to God.… Should an act of Parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void." Otis's constitutional significance, however, does not emanate from this belief, which most contemporaries shared, but from the corollaries he extracted from it. Otis first transformed the British constitution into a fixed rather than a flexible barrier to Parliament, which he redefined as a subordinate creature of the constitution rather than one of its components. Of even greater import, Otis characterized the courts as umpires of Parliament's power. "The judges of England," he wrote, "have declared in favor of these sentiments when they expressly declare; that acts of Parliament against natural equity are void. That acts against the fundamental principles of the British Constitution are void." To assert that all earthly power, even that of Parliament, had limits was a ubiquitous platitude; to imply that agencies outside Parliament could calibrate and enforce these limits challenged the axiom of parliamentary supremacy that, for most Englishmen, lay at the foundation of their constitution.

A disembodied and didactic use of sources, ranging from Magna Carta to Hugo Grotius, provided Otis's intellectual ammunition. In Bonham's Case, for example, the Reports of Sir edward coke mentioned courts' controlling acts of Parliament and adjudging them void. Coke's meaning, however, was constructive rather than constitutional and involved no judicial effort to subjugate Parliament. The case pitted not the legislature against the courts but two clashing private parties and raised questions of which conflicting laws applied. Coke reasoned that the common law courts, acting with, rather than against, another court in the form of Parliament, should give the laws a reasonable construction that was jointly desired. Otis bloated the case, however, into precedent for constitutional regulation of Parliament under judicial aegis.

Otis repeatedly denied the revolutionary implications of his ideology, stressing that Parliament was the British Empire's supreme but not absolute legislature and could alone rescind its statutes. Despite these denials, however, Otis's assumptions intrinsically approached the threshold of the right to revolution against unconstitutional parliamentary acts.

Having asserted limits to Parliament's authority, Otis enumerated the colonial rights that lay beyond them. As a delegate to the stamp act congress (1765) and in his Rights of the British Colonies (1764), written against the Sugar Act, Otis condemned taxation of the colonists by a Parliament to which they had directly elected no representatives. (See taxation without representation.) As moderator of the Boston town meetings, he also opposed juryless trials under the townshend acts of 1767.

Widely regarded as the premier theorist of the radical cause in the 1760s, Otis had great influence on the constitutional ideology of the developing revolution. He edited many of the Farmer's Letters (1767) by john dickinson, while john adams adapted much of Otis's reasoning in Paxton's Case against juryless admiralty trials in Sewall v. Hancock (1768–1769).

William J. Cuddihy
(1986)