Otis, James, Jr. (1725–1783)

• Author: William J. Cuddihy
• Pages: 1865-1866

Page 1865

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

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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...