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This chapter is a reexamination of the Writs of Assistance speech by James Otis. In particular, it is a reconsideration of the evidence upon which rests the historical reputation of Otis’s address. Are the claims by historians who credit Otis with sparking the Revolutionary movement in colonial America warranted or not? That reassessment begins with a detailed review of the nature and function of writs of assistance within the political, legal, and economic environment of colonial Massachusetts. It then turns to an analysis of the legal dispute over writs of assistance in the 1761 trial. From there we will reconstruct what Otis said, and in particular consider the authenticity of various texts purported to represent Otis’s words and arguments. How did the speech text enter the public record, and what were the various forces that contributed to its corruption and Of particular interest is the reliability of the recollections of John Adams made fifty-seven years after the writs of assistance trial. These recollections have been largely dismissed and discredited by historians and critics as of little value in understanding Otis’s speech. But, are there reasons why we should place more confidence in Adams? Can we credit Adams’s memory enough to construct a fuller portrait of the arguments and evidence advanced by Otis? Finally, what would it mean for our comprehension of Otis’s performance, and his importance in the early patriot movement, if Adams’s recollections were reliable? With a more complete picture of Otis’s manifesto, what must we conclude about Otis’s influence on colonial opposition to British rule, and about his impact on American legal development in the areas of constitutional protection against unreasonable search, and with regard to the practice of judicial review of legislative action?
James M. Farrell, “The Child Independence is Born: James Otis and Writs of Assistance,” in Rhetoric, Independence and Nationhood, ed. Stephen E. Lucas, Volume 2 of A Rhetorical History of the United States: Significant Moments in American Public Discourse, ed. Martin J. Medhurst (Michigan State University Press, forthcoming).
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