which they cannot be under here; and therefore the writ of assistance ought to be look’d upon as a different thing there, from what it is here. In England the exchequer has the power of controuling them in every respect; and even of inflicting corporal punishment upon them for mal-conduct, of which there have been instances; they are the proper officers of that court, and are accountable to it as often as it shall call them to account, and they do in fact account to it for money receiv’d, and for their BEHAVIOR, once every week—so that the people there have a short and easy method of redress, in case of injury receiv’d from them: but is it so here? Do the officers of the customs here account with the Superior Court, or lodge monies received into the hands of that court; or are they as officers under any sort of check from it?—Will they concede to such powers in the Superior Court? or does this court, notwithstanding these are powers belonging to the exchequer—notwithstanding it is said to be vested with ALL THE POWERS belonging to the exchequer—and further, notwithstanding this very writ of assistance is to be granted AS a power belonging to the exchequer, will the Superior Court itself, assume the power of calling these officers to account, and punish them for misbehavior? It would be a small consolation, if we could have one instance: Have we not seen already, ONE of those officers, and he an inferior one too, REFUSING to account to any power in the province, for monies receiv’d by him by virtue of his office, belonging to the province, and which we are assured by the JOINT DECLARATION of the three branches of the legislature, is UNJUSTLY as well as illegally detain’d by him? Does not every one then see that a writ of assistance in the hands of a custom house officer here, is in reallity a greater power, & more to be dreaded, than it is in England? greater because UNCONTROUL’D—and can a community be safe with an uncontroul’d power lodg’d in the hands of such officers, some of whom have given abundant proofs of the danger there is in trusting them with ANY?
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5. A Sample Writ of Assistance
“Province of Massachusetts Bay.
“GEORGE the Second by the Grace of God of Great Britain, France and Ireland King, Defender of the Faith &c—
“To all and singular Justices of the Peace, Sheriffs and Constables, and to all other our officers and Subjects within said Prov. & to each of you Greeting—
“Whereas the Commissioners of our Customs have by their Deputation dated the 8th day of Jany 1752, assignd Charles Paxton Esqr Surveyor of all Rates, Duties, and Impositions arising and growing due within the Port of Boston in said Province as by said Deputation at large appears, WE THEREFORE command you and each of you that you permit the said C.P. and his Deputies and Servants from Time to time at his or their Will as well in the day as in the Night to enter and go on board any Ship, Boat or other Vessel riding lying or being within or coming to the said Port, such Ship, Boat or Vessell then & there found to View & Search & strictly to examine in the same, touching the Customs and Subsidies to us due, And also in the day Time together with a Constable or other public officer inhabiting near unto the Place to enter and go into any Vaults, Cellars, Warehouses, Shops or other Places to search and see whether any Goods, Wares or Merchandises, in the same Ships, Boats or Vessells, Vaults, Cellars, Warehouses, Shops or other Places are or shall be there hid or concealed, having been imported, ship’t or laden in order to be exported from or out of the said Port or any Creeks or Places appertain’g to the same Port; and to open any Trunks, Chests, Boxes, sardells or Packs made up or in Bulk, whatever in which any Goods, Wares, or Merchandises are suspected to be packed or concealed and further to do all Things which of Rt and according to Law and Statutes in such Cases provided, is in this Part to be done: And We strictly command you and every of you that you, from Time to Time be aiding and assisting to the said C.P. his Deputies and Servants and every of them in the Execution of the Premises in all Things as becometh: Fail not at your Peril: WITNESS Stephen Sewell Esqr & c—”
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Otis in Massachusetts Politics, 1761–63
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BETWEEN 1761 and 1763 Otis wrote several essays on political subjects other than writs of assistance. The bulk of the newspaper essays reprinted in this section have to do with Otis’s argument with Thomas Hutchinson over currency. Otis was a bimetallist; Hutchinson was not. In these arguments the ever-present problem in the colonies of a lack of specie merged with the ongoing political arguments of late-colonial Boston. We also reproduce here two pieces on the agency question, probably from Otis’s pen.
The second main subject of the essays is Otis himself. Otis’s opponents charged that his political actions grew from one source: animosity toward Thomas Hutchinson. Otis’s father, Colonel Otis, had believed that he would be appointed to the Massachusetts Superior Court. Instead, Hutchinson was appointed. Hutchinson claimed that Otis threatened to “set the Province in a Flame” if Colonel Otis did not get the post. For his part, Otis charged Hutchinson and his friends with hoarding offices.
The third subject of these essays is constitutional controversy. Otis’s constitutional concerns are present in his newspaper essays, but they are most clear in the pamphlet A Vindication of the Conduct of the House of Representatives of the Province of Massachusetts-Bay. In Vindication Otis argues that the governor may not demand that the duly elected representatives of the colony cover expenses incurred during a recess of the House—even when those expenses have to do with fitting out a ship in a time of war. Otis fears that unchecked authority in the executive will soon become arbitrary power.
These essays show the connection between provincial political controversies of the 1760s and the imperial issues that would soon arise with such force. They reflect Otis’s concern with checks and balances, with liberty under law, and with John Locke.
The newspaper essays were all published in the Boston Gazette. The Vindication of the House is rekeyed from the edition that Charles Mullett published in the University of Missouri Studies in 1929.
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1. Essays from the Boston Gazette, December 21, 1761–April 11, 1763
Messieurs EDES and GILL.
PERHAPS I should not have troubled you or the Public, with any Thoughts of mine, had not His Honour, the Lieutenant Governor, have condessended to give me a personal Challenge. This is an Honor that I never had Vanity enough to aspire after, and shall ever respect Mr. Hutchison for it, so long as I live; as he certainly consulted my Reputation more than his own, when he bestowed it. A General Officer in the Army would be thought very condessending to accept from, much more to give a Challenge to a Subaltern.
The Honour of entering the Lists with a Gentleman so much one’s Superior in one View, is certainly very tempting; it is at least possible that his Honour may lose much, but from those who have, and desire but little, but little can possibly be taken away.
I am your humble Servant.
JAMES OTIS jun.
Boston,