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province; that he had made a thousand enemies, among whom was the government of the province and the nation ; that, with a keen love of pleasure, he had denied himself all amusement for ten years; and that, finally, he had ruined as fine health and as good a constitution of body as nature ever gave man, — being left prostrated by excessive mental exertion and the cowardly attack of an enemy. Surely, no man could undergo more for his country, for reform, for the good of the human race, than was suffered by this lawyer.
Gladly would we follow him, would our limits permit, through his subsequent political course ; gladly would we recount his hard fights with Governors Bernard and Hutchinson, both of whom hated and feared him as they did no one else. He was incessantly on the watch for any, even the slightest, stretch or misuse of the prerogative; against any attempt, either by the provincial or the home government, to take from the representatives of the people the right of originating all taxes, however trifling in the individual case they might be. To such an extent did he carry his uncompromising opposition to the exertion of arbitrary power, that, for some unusually bold words, the cry of “ treason” was raised against him. In September, 1762, he drew up an address from the House of Representatives to Governor Bernard, in answer to a message from him informing them of his having enlarged the establishment of the Massachusetts sloop, on his own responsibility, without first obtaining their consent. In it occurred these words : “ It would be of little consequence to the people, whether they were subject to George or Lewis, the king of Great Britain or the French king, if both were arbitrary, as both would be, if both could levy taxes without Parliament.”2 Notwithstanding this language of Mr. Otis was at once declared treasonable by the opposition, the address passed the House by a large majority, and was presented to the governor, Mr. Otis himself being one of the committee to whom this duty was delegated. The governor returned the address the afternoon of the same day, with a letter recommending earnestly that the objectionable passage should be expunged, and not entered upon the journals of the House. The words were accordingly expunged, and the message returned by the Speaker. During the ensuing recess of the House, Mr. Otis
1 10 John Adams's Works, 289-291.
2 Tudor, 120.
prepared, in his leisure moments, his famous pamphlet in “ Vindication of the Conduct of the House of Representatives,"1 which John Adams eulogized in the highest terms; representing it as the germ of the Declaration of Independence, and as containing substantially the arguments of some of the most daring supporters of the Rights of Man. Mr. Otis, in his pamphlet, reviews with his accustomed energy the antagonistic positions of the House and the governor, and enters into an analysis of the meaning of the expressions used by him, maintains their actual inoffensiveness, justifies their use, and asserts his own loyalty in the most warm and explicit language. He advances in it the dogma, by no means even now generally acknowledged, that God made all men naturally equal; that earthly pre-eminence is not innate; and that those who acquire it, hold it for the good of the people. But we would not attempt to analyze a treatise whose most novel teachings have become the almost unquestioned principles which underlie our republican form of government.
Let us return, then, to his professional life, and trace its few remaining incidents. John Adams says that Mr. Otis's business, in 1762, was " very extensive and of the first importance,” and that the pamphlet, to which we have just referred, was “the production of a few hurried hours, amidst the continual solicitations of a crowd of clients.” 3 Before he became fairly and entirely engrossed by his political duties, his business as a lawyer was, undoubtedly, rather increased than diminished by his espousing the popular side.
The importance of obtaining a verdict in the first instance from the jury, must, in those days, have been very great. Chief Justice Shaw has forcibly pointed out the reasons and the disadvantages of the course which counsel were forced to pursue in this respect. The Superior Court of Judicature in the province consisted of one chief justice and four judges ; three of whom made a quorum, but all of whom were expected to attend. “ All jury trials were in effect trials at bar, and were conducted in the presence of the full court, and not less than three were competent to preside at a jury trial. The necessary consequence of this practice was, that the members of the court were not always unani
1 Published by Edes and Gill, Boston, 1762. 2 10 John Adams's Works, 298–312. 3 10 John Adams's Works, 310.
mous in their opinions upon the question of law which the case presented ; and this was the more likely to happen where they were compelled, by this course of proceeding, to form their opinion amid the hurry of a jury trial and without the aid of deliberate argument or reference to authorities. It not unfrequently happened, therefore, that several different members of the court charged the jury, and gave them conflicting and contradictory opinions upon points of law; and, in summing up the case, often differed still more widely from each other in their views of the credibility and effect of evidence, in its application to the particular case. It followed, as almost a necessary consequence of this course of proceeding, that a verdict must be conclusive. How could it be possible to take exceptions to instructions in point of law, where those instructions were various, and perhaps contradictory? or, to object to a verdict for a misdirection, where, if the directions given by one judge were incorrect, their influence may have been counteracted by those of another, which were strictly conformable to law? When so decisive an importance was attributed to the verdict of a jury, and when a jury in effect had the power of controlling the court in matters of law, it is natural to believe that every exertion of the parties and counsel would be directed to the object of obtaining a verdict.” 1
It will be easily understood, then, how much, under such cir. cumstances, depended on the quickness and tact of an advocate, how much on his knowledge of human nature, how much on his eloquence, his address, and his power of successfully working on the feelings, passions, or prejudices of the twelve honest men before him. The heavier and more substantial powers, which might sway the reason of a bench of judges in the refined argument of a delicate point of law, would have been of little arail before a provincial jury. It was for these brilliant and captivating powers, that Mr. Otis was celebrated. He had a taking way with him. His known sympathy with the people was one of the many things which, perhaps imperceptibly, influenced a jury, and led them to think that justice must be with the side on which they saw him arrayed. We do not wish to imply that Otis was not a profound lawyer, or that he depended for his success on mere readiness of speech or on popular favor. The memoranda of his arguments, which have been preserved in Quincy's Reports,
19 Pick. 569-570.
although scanty and imperfect notes of what were in most cases, probably, long and carefully prepared arguments, - show that he was capable of legal research, and was familiar with the law books then within the reach of an American lawyer. He must have had an unusual amount of legal learning to have been able to reach and to maintain the high position which it is universally acceded that he held at the Bar. The breadth of knowledge and great variety of attainments requisite to make a successful lawyer, in this country, has always been much greater than in England. Practitioners are not divided into classes, each with its separate province, out of which its members neither do nor are able to stray. This simplification of professional duties which makes practice easier for the lawyer, and at the same time secures more skilled labor for the client, has never obtained with us.
Jeremiah Gridley pointed out this as early as 1758, in advising John Adams :
“A lawyer in this country must study common law, and civil law, and natural law, and admiralty law, and must do the duty of a counsellor, a lawyer, an attorney, a solicitor, and even of a scrivener ; so that the difficulties of the profession are much greater here than in England."
Our lawyers will recognize the similarity of their present position to that of their predecessors of a century ago.
The Stamp Act was passed in February, 1765; the news of this hated measure reaching Boston in April. Every thing was in a ferment. The minds of the people were occupied in devising plans, either successfully to set it at defiance or to procure its repeal. To bring about the latter result, Mr. Otis proposed a congress, composed of committees from the different colonial legislatures. This plan was unanimously adopted by the General Court, and a circular letter prepared, dated June 8. Nine colonies, accordingly, met in convention at New York Oct. 19, when three addresses or petitions for a repeal of the act, to king, lords, and commons, respectively, were drawn up and voted to be sent.
The act was to go into operation on the first of November; but although the stamps had arrived about the 20th of September, the distributor had been intimidated into a resignation of his office: no successor had been found, and no stamps were to be bought. There was a general determination among the people to use no
1 2 John Adams's Works, 46.
2 8 Hutchinson, 118.
stamps, so that for five or six weeks after the time for the Stamp Act to go into operation had passed, the courts of law were all closed. The judges were unwilling to transact business without stamps, under the expectation that the act would be repealed, when the consequences of its being continued in force were fully considered. All their proceedings would in such case be invalidated. The hardship which this state of things worked can be easily imagined. The town of Boston took measures to abate the grierance, and, on the 18th of December, memorialized the governor and council to open the courts, appointing Messrs. Gridley, Otis, and John Adams to appear as counsel in support of it. Mr. Otis opened with tears in his eyes ; à but neither tears nor arguments were of avail, the governor and council unanimously rejecting their prayer. Although the inferior courts began to transact business, yet, at the coming in of the Superior Court for the March term, 1766, the opinion of the Bar was taken, and, according to Governor Bernard, all the lawyers, including Mr. Otis, were of opinion that business should not be proceeded with contrary to act of Parliament. One cause only was tried, which had been at issue before the Stamp Act, and the court was adjourned to the 29th of April, only to be then adjourned again. A copy of the repeal of the Stamp Act arrived in Boston May 16, so that any further delay became unnecessary.4
Mr. Otis's name is found as counsel in cases reported by Mr. Quincy as late as the August term, 1767.5 This date does not indicate, by any means, the time when he was obliged to relinquish his practice and succumb to his horrible malady; neither do the cases included in that volume embrace any large proportion of the causes in which he would seem to have been engaged.
“ Otis," John Adams enters in his diary, in May, 1767, "by getting into the General Court, has lost his business.” 6
1 Quincy, 216.
2 Ibid. 3 “ Some of the lawyers who were warmly engaged in the cause of liberty appeared to acquiesce in the continuance of all actions in which they were concerned. Although the act should be repealed, there was no certainty that any acts contrary to it, which preceded the repeal, would be declared valid. Mr. Otis, indeed, who had at first joined with his brethren, being reproached for it, demanded in form the judgment of court in all actions in which he was concerned, but acquiesced in the denial." 3 Hutchinson's Hist. Mass. 146. 4 Quincy, 215–217.
5 Noble v. Smith, Quincy, 254. 6 2 John Adams's Works, 208.