This unknown colonial lawyer helped spark the American Revolution and paved the way for American property rights

March 18, 2020 | By DANIEL WOISLAW

George Washington, Thomas Jefferson, James Madison, and the other Founding Fathers are rightly celebrated for their role in freeing America from oppressive British rule and building a government that has stood the test of time. But James Otis, a Boston lawyer in the mid-1700s, was one of the American Revolution’s most important intellectual influences—and he is virtually unknown.

Otis’ fiery courtroom arguments in the pivotal case surrounding Britain’s door-to-door searches of Americans’ homes actually helped spark the American Revolution, and his thinking would shape how the Founders protected property and privacy rights in the Constitution.

So why is such an important historical figure virtually unknown? To understand that, we must first understand the story of our nation’s birth.


Taxation without representation

During the winter of 1761, tensions were high in Boston. American colonists were getting fed up with their English rulers, and England was seemingly doing everything it could to stoke the discord between government and governed.

Taxes were at the forefront of these frustrations. The colonists decried England’s “taxation without representation” every chance they had. And the more the Americans protested, the more England taxed. But because of colonial opposition, Britain had trouble collecting taxes from the American colonists.

So to enforce their unpopular laws, Britain passed even more unpopular laws.

To collect more tax revenue from the colonies, the British customs officials began seeking “Writs of Assistance” from local courts under an English act of Parliament. These writs gave British soldiers the power to search colonists’ homes for smuggled or untaxed goods, without specific warrants. This policy of so-called “general searches” meant that officials could weaponize investigations against political and personal opponents, who had no recourse against government agents wildly rummaging through their homes and personal belongings without cause.

Today, the Fourth Amendment protects Americans’ privacy and property rights by requiring a government agent who wants to search someone’s house to obtain a search warrant issued by a judge. Search warrants have specific requirements and limit what government agents are allowed to search for and how those searches are allowed to take place.


“As a King in his castle”

Thirty years before the Fourth Amendment became the law, James Otis argued for the importance of property rights in a court case that laid the foundation for that part of our Constitution. In that 1761 case, known as Paxton’s Case, Otis argued that a person in his home should be “as a King in his castle.”

The case was named for Charles Paxton, a Boston customs agent who used the Writs of Assistance to carry out numerous invasive and causeless general searches of colonists’ homes and businesses. Bostonians were so enraged by Paxton’s abusive inspections that a mob set out to burn down his home. When Paxton’s landlord dissuaded them, they instead vandalized the property of a prominent Boston judge who issued the general warrants that authorized the searches.

Otis was a prominent Boston lawyer at the time. But he worked as the Advocate General for the British government in Massachusetts, which would have required him to defend Paxton’s illegal searches in court. However, before the case began, he resigned his post and coordinated the legal challenge against the Writs of Assistance.

During the trial of Paxton, Otis delivered a five-hour oration at the Old Boston Statehouse accusing Paxton of violating Bostonians’ “right to be free from the unreasonable searches and seizures carried out under general warrants and writs of assistance.” Otis delivered an inspirational case for property rights. John Adams, the future president, was a young lawyer in attendance when Paxton was argued. He later wrote of Otis’ speech:

Otis was a flame of fire! With the promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glare of his eyes into futurity, and a rapid torrent of impetuous eloquence, he hurried away all before him; American Independence was then and there born.

Adams went on to explain how the audience, after hearing Otis speak, “appeared to go away, as I did, ready to take up arms against the Writs of Assistants.” While many today consider the first shots fired at the battles of Lexington and Concord or Bunker Hill to have begun the revolution, Adams explained that Otis’ argument in Paxton’s Case “was the first scene of the first act of opposition to the arbitrary claims of Great Britain.” And indeed, open defiance against England’s rule over the colonies became more pronounced in the months and years to come.


A sovereign people

Though the court ruled against Otis, holding that the Writs of Assistance were legal, his arguments stoked the embers of American Independence. Within a few years, James Otis would become a founding member of The Sons of Liberty, the secret order of political leaders who would lay the groundwork for the American Revolution, which included the likes of John and Samuel Adams, Patrick Henry, Paul Revere, and John Hancock.

Otis also published a treatise in 1764 titled The Rights of the British Colonies Asserted and Proved, where he contended that “general warrants” like the Writs of Assistance violated the colonists’ property rights by exposing their homes and businesses to perpetual searches without justification. The right to exclude others from your property, including the government, is a fundamental right inherent in property ownership.

He also wrote about how “supreme absolute power is originally and ultimately in the people.” This was one of the first intellectual arguments by American colonists concerning the inherent rights of people that would become a guiding principle in the U.S. Constitution. Today, our government is built on the concept that people have inherent rights and our government’s duty is to protect those rights—not give us our rights. Though commonly understood today, this concept was an innovation during the 18th century, and an experiment that took shape in our American form of government.

To place these events into context, just six years after Otis published his treatise, British soldiers opened fire on a crowd of protesters during an event that would quickly be branded The Boston Massacre (1770). And three years after that, The Sons of Liberty would orchestrate a display of civil disobedience against the taxes of England by dumping a large imported shipment of tea into the ocean in what would become known as the Boston Tea Party. Then two years later, Paul Revere would make his famous “Midnight Ride” to warn the local revolutionary militias in Lexington and Concord, Massachusetts, that British soldiers were headed their way to destroy important weapons caches. The shots fired that following day would be the first of the American Revolutionary War. Within two months, hundreds of British and American soldiers would perish in the Battle of Bunker Hill in Charlestown, Massachusetts, just a stone’s throw from downtown Boston.


Restoring Otis to his rightful place in history

In 1769, Otis was attacked by four British customs commissioners in Boston because of a newspaper article he wrote insulting the commissioners’ work. Otis fought back but suffered a massive brain injury from the attack and was never the same again. For the rest of his life, Otis would drift in and out of sanity and was known to wander the streets ranting incoherently. And as a final cruel twist, near the end of his life, Otis burned almost all of his personal papers in a fit of madness. Today, historians have access to Otis’ published works, but his personal writings, diaries, and journals are all lost.

Despite Otis’ undeniable influence on America’s revolution and our Constitution, this lack of documentation from Otis’ life’s work is the main reason he has largely been lost to history.

James Otis died in 1783 after being struck by lightning. However, right before his death, he learned that America had won the Revolutionary War.

Otis’ ideas were instrumental in the formative years of American statehood. Largely because of Otis, Massachusetts and Virginia adopted bills of rights that included protections against unreasonable searches. And these formulations became the framework for the federal Constitution’s Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Without James Otis’ arguments in Paxton’s Case, the American Revolution would undoubtedly have been different (if it happened at all). His arguments and publications were a critical contribution to the intellectual revolution that founded America. Even though James Otis might be unknown to most Americans, his influence lives on in the text and spirit of our Constitution and its defense of our inherent, God-given rights.


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