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[416] ‘are the worst instrument of arbitrary power, the
chap. XVIII.} 1761.
most destructive of English liberty and the fundamental principles of law.’ And he invoked attention to the whole range of an argument which ‘might,’ he acknowledged, ‘appear uncommon in many things,’ and which rested on universal ‘principles, founded in truth.’ Tracing the lineage of freedom to its origin, he opposed the claims of the British officers by the authority of ‘reason;’ and that they were at war with ‘the constitution’ he proved by appeals to the charter of Massachusetts and its English liberties. The precedent cited against him belonged to the reign of Charles the Second, and was but evidence of the subserviency of some ‘ignorant clerk of the exchequer.’ But even if there were precedents, ‘all precedents,’ he insisted, ‘are under the control of the principles of law.’ Nor could the authority of an express statute sanction the enforcement of Acts of Trade by general writs of assistance. ‘No act of parliament,’ such were his memorable words, ‘can establish such a writ; even though made in the very language of the petition, it would be a nullity. . . . An act of parliament against the constitution is void.’1

1 Authorities to be relied on for this speech of Otis are the contemporary ones: 1. The minutes taken down at the time, and inserted in Minot, and now published more correctly in the appendix to the Diary of John Adams, 523, 524: 2. Various incidental allusions in letters of Bernard; 3. Letters of Hutchinson; and 4. The History of Hutchinson, of which the plan was formed as early, at least, as in 1762. All agree, particularly the letters of hutchinson, that this argument by Otis was the origin of the party of revolution in Massachusetts. The account of the speech, which I give in the text, goes to that extent, and includes the revolutionary doctrine ultimately relied on, which esteemed reason and the constitution superior to an act of parliament. In his extreme old age, the elder Adams was asked for an analysis of this speech, which was four or five hours long. He answered, that no man could have written the argument from memory ‘the day after it was spoken,’ much less ‘after a lapse of fifty-seven years!’ And he then proceeded to compose a series of letters on the subject, filling thirty-three closely-printed octavo pages. Comparing these letters with letters written at or near the time, I am obliged to think that the venerable man blended together his recollections of the totality of the influence and doctrines of Otis, as developed on various occasions during the years 1761, 1762, 1763, 1764, and 1765, and even 1766. It is plain that his statement was prepared by aid of references to the British statute book and to printed documents. Thus, Appendix to Novanglus, p. 294, he quotes several laws, and adds, ‘I cannot search for any more of these mincing laws.’ Again, he asserts that the ‘warm’ speech of 1762 was a second edition of the speech on ‘the writs of assistance.’ But of that warm speech Otis himself published a report which may be read and compared. Further: the doctrine of the virtual representation of America in the British parliament does not seem to have come into public discussion till the winter of 1763-4; and Bernard expressly writes, that the power of parliament to levy port-duties had not been questioned or denied in Boston till the year 1764. On page 294, Mr. Otis is said to have quoted, in 1761, a remark first made by a member of parliament in 1766. ‘The principle,’ says Mr. Adams, ‘I perfectly remember. The authorities in detail I could not be supposed to retain.’ I own I have had embarrassment in adjusting these authorities; but, after research and deliberation, adhering strictly to the rules of historical skepticism, weighing the accounts of contemporaries written at the time, I will trust that my narrative conveys with precision the scope of the remarks of Otis. The truth, for which there is clear evidence, is sufficient for illustrating his glory and for establishing his momentous influence. A protest against negro slavery seems not to have been uttered on that occasion; but he pronounced such a protest in a later year, as will be related in its place.

My readers must pardon this long note, which is prompted by my great anxiety and care to make statements exactly right, and to have them so recognised. In narrating the incidents which are of universal interest, I desire to escape exaggeration, and yet not from timidity to divest any fact of its proper coloring.

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