USA > Massachusetts > Barnstable County > Barnstable > Report of proceedings of the tercentenary anniversary of the town of Barnstable, Massachusetts > Part 10
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But, next to James, Jr., in distinction came his sister, Mercy. This daughter of Judge Otis married James Warren of Plymouth. Warren became a General of the Revolution-
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ary Army, and with his able wife, Mercy Otis Warren, col- laborated with Samuel Adams in organizing the Committees of Correspondence. These Committees made the independ- ence of the Colonies possible. To those who would like to pursue a thorough study into the groundwork laid by the Committees of Correspondence in organizing the patriots of the Colonies into a body that supported Washington un- reservedly to the end of the War, I recommend the reading of the Life of Samuel Adams by J. C. Miller, formerly a pro- fessor of Harvard University. General James Warren always credited his wife with continued inspiration for the part he played. Warren was more than an Army General; he was an outstanding figure in all of the more important Revolution- ary activities, and the intimate of Washington.
Mercy Otis Warren wrote one of the earliest histories of ยท the Revolution. She was the intimate friend of Abigail Adams and John Adams. Her correspondence, carried on for years with John Adams, and generously referred to in the writings of the second President of the Nation, clearly establish that the sister of James Otis, Jr., was one of the most remarkable women,-if not the most remarkable,-of the Revolutionary period. She died October 19, 1814. The small volume written by Alice Brown and published in 1896 by Charles Scribner's Sons, should be read by all who would know well the contribution to our Nation-building by a woman. Her brother, as previously stated, is referred to as "Barnstable's Greatest Son."
Of Mercy Otis Warren, it can just as truly be said she was "Barnstable's Greatest Daughter."
The father of James Otis continues to be referred to as "Colonel" James Otis. I cannot understand why he is never referred to as "Judge" Otis. I also am at a loss to under- stand why so little has been written of him. It has been said, and truly so, that the life of the father was overshadowed by the glory attained by the son. Admittedly, such is the fact. It is not, however, a sufficient excuse for allowing the memory of the father's services to be but a passing refer- ence, whenever the son is honored by addresses or writings.
I wish time permitted to cover with reasonable detail a comprehensive sketch of the life of Judge Otis. It offers op- portunity for exhaustive study and treatment. I entertain the hope of finding time to further pursue my studies re- lating to the Otis family and write or speak directly of this remarkable man. How many early American families can be counted upon to match the family he fathered. James, Jr.,
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the lawyer-patriot; Joseph, the General; Mercy, the extra- ordinary daughter; Samuel, the soldier and statesman. My studies have not yet brought me to the point where I can speak authoritatively of the lives of the other nine children. It is, as I remarked previously, a strange feature as applica- ble to this great family, that so little has been written ; and such as is to be found is in more or less fragmentary and detached form.
The son of James Otis, Jr., inspired by the teachings of his grandfather, and stricken father, was a soldier in the Revolutionary Army and died on an English prison ship. The patriot father's health and mind had broken before the War started. His son kept the faith. I am sure the roster rolls of those who enlisted from Massachusetts will find the names of every grandson of Judge Otis, old enough to fight ; and, also, that the granddaughters followed in the footsteps" of their parents, in exhibiting true Otis spirit and patriot- ism.
May I repeat two prior assertions :
(1) James Otis, Jr., was Barnstable's greatest son.
(2) Mercy Otis Warren was Barnstable's greatest daugh- ter.
And add the following :
(3) The Otis family was Barnstable's greatest family.
When the life of Mercy Otis Warren is studied, the study should embrace the life of her mother, and the part she played standing shoulder-to-shoulder with her husband in his work, and the development of the minds of the remark- able family of children. One can find very little printed reference to her, other than she was a member of the Allyne family of Plymouth, a noted family of the Colony. The moth- er of James Otis must have been a woman of most exception- al and unusual mental fibre, well matching the gifts of her husband. I hope a future historian will suitably and justly honor her memory, as we today honor that of her son.
Thus far, I have perhaps digressed too far from the life and services of James Otis, "The Patriot," in referring at some length to his father, his sister, his brothers, his broth- er-in-law, and the Otis family in general. For such a course of treatment, I offer this explanation. History discloses that English statesmen, and historians, so-called, and those charged with England's foreign policies, have consistently pursued a policy of attempting to break down the force and influence of those challenging her policies and acts. This has been done by creating a belief that the particular champion
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of popular rights, at the time in question, was actuated by unworthy motives, was a clever demagogue, was a disap- pointed seeker of Governmental favor, overambitious, and any one of a score or more of motives or causes calculated to alienate good will, respect, or justification.
Otis did not escape the attacks. Much as I dislike to say so, the belief I acquired from my readings and studies in school days was centered upon three main conclusions per- taining to Otis, namely : (1) That, by an "inspired" effort, he made an extraordinarily popular speech in attacking the right of the Crown to enforce the Writs of Assistance; (2) that he was a firebrand politician of the Colonial period who was aggrieved because his father failed to get a good posi- tion, the Chief Justiceship of the highest Court of the Prov- ince; and (3) that he was half-crazy at the time, as proved by the fact that nine years later his mind became deranged and continued so for the balance of his life. That breaking down of the mind was caused by the vicious assault by Robinson, a Crown sympathizer. Is it any wonder that the mind of the great patriot, overburdened by the volume of mental labor he shouldered, should weaken, following the serious head injuries the supporter of the Crown inflicted.
The assault was in 1769. Prior to that time his mind was normal. Admittedly, it weakened thereafter. Indisputably, his mind in 1760, and for the nine years following, was one of the strongest in the Colony.
Many historians, and writers who have dealt with the life of Otis,-as well as teachers who have had occasion to treat of the part in the struggle for independence of the Col- onies played by Otis,-have with substantial unanimity carelessly accepted the false statements, inferences and inu- endoes. Whenever there have been any references to the background and family of Otis, they have been meagre and of insufficient force to establish in the minds of students of history what a towering mind Otis possessed, and the strength of the family which gave him to America. I have thought it fitting that here in Barnstable where he was born, and where the memory of his services should always be kept fresh and green, there should be a firm challenge to a continuation of the unjust and false beliefs to which I have referred.
I cannot spare the time in this address to take up in de- tail the part Otis played from his admission to the Bar in 1745 to his death in 1783. An examination and analysis of his acts, court-room arguments, public addresses and speech-
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es before the Colonial Legislature, and correspondence on the great issues of the period, would require considerable space and time to deal with adequately. To hurriedly sketch them would accomplish no useful result. For those who wish to review a splendid summary, I suggest a purchase of the Tercentenary historical volume of "Barnstable," edited by Donald G. Trayser, one of your townsmen and editor of the "Barnstable Patriot." It is but recently off the press. All of the chapters are well worth reading, but in particular I urge that you read the chapter devoted to Otis. It is com- prehensive in detail, and authoritative.
James Otis was one of the best educated men of his time. Born February 5, 1724, he entered Harvard College in June, 1739, at the age of fifteen, and was graduated in 1743 with the degree of Bachelor of Arts. Three years later, he was awarded the degree of Master of Arts. From his graduation in 1743, until 1745, when he began the study of law under the noted Jeremiah Gridley, he continued advanced studies in history and what we now term the science of government. He familiarized himself with all the then existent books on the administration of government. While with Gridley, the special studies were further pursued.
The true test of the workings of his mind in respect to knowledge of fundamental law is found in the letter written to his father just prior to his argument on the Writs of As- sistance. The father had wished advice from the son, James, in relation to the younger brother, Samuel Allyne, taking up the study of law. It is a letter that should be read by all youths who study law. It discloses how well grounded James was in the law, and the seriousness of his mind. I quote but a single sentence :
"A lawyer ought never to be without a volume of natural or public law, or moral philosophy, on his table, or in his pocket."
The sentence pictures the mind that, a few months later, challenged the might of the English Parliament.
There appears to be a common error on the part of those who hurriedly review the Revolutionary period in acquiring the view that those who fought the War and played import- ant parts in the earlier steps leading up to warfare were of the soldier-fighting type. It is true that about all of those men of fighting age did fight when the time for fighting be- gan, as did Mercy Otis' husband. The equally important fact is overlooked that practically all the real leaders in the Massachusetts activities of the pre-Revolutionary period
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were men of exceptional educational background. Such were John Adams, Sam Adams, James Sullivan and their associates and correspondents. They were fortified with in- timate knowledge of history and the development of law and the workings of law. The English Parliamentarians ap- parently believed the Colonists were too far removed from European civilization and knowledge of law to challenge any conclusion of law stated by English lawyers or states- men.
Otis' knowledge of law was thorough and sound. As I pointed out in my address on Otis before the Barnstable Bar Association in 1930, Lord Chief Justice Mansfield was the legal force behind the English position. We are told so fre- quently that it becomes accepted almost as a fact that George III provoked .and carried on the War. I recall when, as a school-boy, I studied of the Revolutionary period, how we children hated the name and memory of George III. But, as I grew older and studied history and government in its advanced state, and then studied law, I began to realize- what, of course, is the indisputable fact,-that the King of England is but a symbol of authority, and the real authority vests in Parliament and the Ministers who represent the controlling political party. The King must do as they say.
It is quite true all is done in the King's name, but without the direction or assent of Parliament his authority and the binding force of the use of his name is nil. Just throw your minds back a year or two when Parliament compelled a King to abdicate when he proposed to exercise the human right to marry an American woman of his own choice.
Lately, we are being cleverly told: "Oh, George III was insane." That is intended, apparently, to remove the hos- tility of America to any proposed closer relationship with England. But it was not George III who devised the Writs of Assistance, the Stamp Taxes and other parliamentary restrictions of liberty. It was not George III who, for years, resisted the demand of the Colonists that there could not rightfully be "taxation without representation." It was not George III who combined the executive and judicial by making Hutchinson Chief Justice of the highest Court, so that the Court would rule as legal anything Parliament de- creed.
Lord Mansfield is ever referred to, even by Americans, as the "Greatest Chief Justice England ever had." Grant that to be so, nevertheless it was Mansfield who directed the English legal minds in proclaiming Parliament could do as
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it saw fit, and the Colonists could not legally resist or dis- pute the authority of Parliament to legislate for the Colonies on all matters of Parliamentary concern. For my authority for the foregoing assertion, I refer those who question its correctness to Campbell's "Lives of the Chief Justices of England" and, particularly, the "Life of Lord Mansfield."
It was Otis who, with his superb mind, his deep reason- ing, his knowledge of history and the science of govern- ment, his thoroughness in authorities to support his views, that brought Mansfield and the English parliament to a final realization of the erroneous view of law,-even though it was never admitted, formally.
The address of Otis was not a political speech as some characterize it. Neither was it an inspired effort, born of the occasion. It was a carefully prepared legal argument delivered before the highest Court of the Colony. The frag- ments of the argument which have come down to us indicate careful preparation. Otis was but thirty-six years old. Pitted against him was Gridley, the acknowledged leader of the Bar, and in whose office Otis had studied law. Hutchinson presided as Chief Justice. Otis spoke for several hours. It is unfortunate, court stenographic reporting was not then in existence. From John Adams' meagre notes, and extraor- dinary memory, we derive the only authoritative report of the argument. It was Adams who wrote: "I do say, in the most solemn manner, that Mr. Otis' oration against Writs of Assistance breathed into this Nation the breath of life."
Otis, it will be seen, was not unprepared for the struggle in which he engaged.
His is not an instance of a son, alone and single-handed, springing from obscurity and an every-day sort of family, into undying fame by a single oratorical effort followed by political demagoguery, as the Tory sympathizers sought to establish.
John Adams always gave to James Otis and his brothers and sisters a measure of credit for the part the Otis family played in achieving independence that stamped the Otis fam- ily as one of the really outstanding American families.
We today seek to honor the great son of a great family. The lawyers of Barnstable County are to be congratulated for choosing as their contribution to the observance of the Tercentenary of the Town,-exercises commemorating Otis, Shaw and other notable figures in the legal history of the Town of Barnstable and the County of Barnstable. The part assigned me was to speak of Otis. This I have done,-not as
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fully as the subject warrants, yet possibly at greater length than addresses on a crowded program should be.
We, of the law, should not stop with this effort to perpetu- ate the love and veneration of Otis, the lawyer, and the law- giver. The tablet on the boulder marking the spot where Otis was born is not sufficient recognition of the debt we owe. The State should purchase back the property and make it a plot of ground with memories as hallowed as Lex- ington, Bunker Hill, Dorchester Heights, Plymouth Rock, or even Mt. Vernon.
No longer should the ground be given over to the sale of toys, as it is now. The passerby today does not know it is the birthplace of one of the Nation's greatest patriots un- less the swift-passing autoist, seeing a tablet on a rock, stops to read the small lettering. I am sure the purchase price would be small. The 'Otis homestead is gone, but it can be reproduced.
Williamsburg, Virginia, is today attracting hundreds of thousands of visitors annually, simply because the vision of a few men made possible the restoration of old historic edi- fices. Why cannot we of the Bar of Massachusetts start a movement to restore the Otis property ? It can be done. It should be done. Let the Barnstable Bar Association lead the movement. Perhaps I can qualify as a member perforce of having presided at two terms of Court for this County. And, if I cannot, then I know you would allow me to help. Ask your representatives to the Massachusetts Legislature to aid in recognizing the great services rendered by one who was the most notable member the Colonial Legislature ever enrolled, and whose voice was heard not only in the Legislative hall, but echoed throughout the world, and has continued to reverberate down through the years which have passed.
Ask your representatives in the Congress of the United States to join in appreciation for what Otis did in making an independent Congress possible. Ask the Judiciary, both State and Federal, to join in tribute to one who proved him- self one of the really great lawyers of all time. Ask the peo- ple of the State and Nation to join you, the people of Barn- stable, in making the recognition of Otis as a citizen, law- yer, statesman and patriot so universal that all will know of his worth.
The remains of Otis are now interred in the Granary Bur- ial Ground at Boston. I have observed that, though the tab- let on the gravestone is but a scant ten feet from Tremont
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street, not one in a thousand who pass, and thousands pass it daily, ever stop to do reverence to the great man who is buried there.
Mt. Vernon has been made a national shrine by those who wish to visit the tomb of Washington. It attracts thous- ands every week. My first visit to Mt. Vernon was forty years ago ; my last, of several visits, was last Spring when I took my school-girl daughter to the resting-place of Wash- ington that she might the better comprehend all that Wash- ington did to make the United States of America possible. In those forty years, Mt. Vernon has been changed by im- provement of the grounds and creation of facilities for en- couraging visits by the public.
Thousands upon thousands visit Cape Cod annually. Why is it not our duty to honor Otis in some measure similar to that accorded Washington? Otis was not Washington. Washington justly is called "the father of his country," but Otis, as John Adams said: "Breathed into the Nation the breath of life."'
It is a bold suggestion to make, yet I make it: bring the remains of James Otis to his native Barnstable. Place them in the ground already hallowed by his birth at the spot call- ed the "Great Marshes." Build for this perpetual resting- place a suitable monument. Make the grounds, as Mt. Ver- non has been made, even though in smaller scale, a shrine where all who live on Cape Cod, or visit Cape Cod, will real- ize what James Otis did to make America free.
If we can accomplish that, then those who have partici- pated in observing the 300th birthday of the Town of Barn- stable will have fittingly honored the memory of its "Great- est Son."
The chairman next introduced Thomas Otis, Special Jus- tice of the First District Court of Barnstable, who spoke as follows in presenting Dr. A. Lawrence Lowell, president- emeritus of Harvard University :
I feel that a great honor has been conferred upon me by Mr. Bodfish, the chairman of this Lawyers' Day event, in asking me to introduce to you the gentleman and scholar who will next address you. To me it seems that most of us are well acquainted with him, he having been our honored summer neighbor in Cotuit for many, many years. It seems only fitting that he should give us a brief resume of the life of Lemuel Shaw, one of Barnstable's greatest sons, who pre- sided over the destinies of the Massachusetts Supreme Court
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as Chief Justice from 1830 to 1860 and who graduated from a world famous institution of learning, over which the next speaker presided for many years. It gives me great pleasure to introduce to you A. Lawrence Lowell, President Emeritus of Harvard University.
"CHIEF JUSTICE LEMUEL SHAW"-AN ADDRESS BY DR. A. LAWRENCE LOWELL
Here, almost within the sound of the human voice from the church where his father preached, Lemuel Shaw was born on January 9, 1781. It was a period of stress: for the decisive victory-the surrender of Cornwallis at Yorktown -that brought peace and the admission of defeat by Great Britain did not come until October of that year. By that peace our fathers achieved independence : it remained for them to create a nation and make it work. In the first of these great tasks Shaw was far too young to take part, and in fact for a man of his energy and public spirit he seems to have shown singularly little interest in the national pol- itics of his time. He never held a national office or endeavor- ed to get one; and, in spite of his manifold labors for the City of Boston and the Commonwealth, had he died at the age of forty-nine his services would have passed into com- parative oblivion.
Not that they deserved to do so, for he was helping to solve the second task, that of making the government of the growing country work; and it is a mistake to suppose that the most conspicuous figures in a nation's history are al- ways the greatest benefactors, or the most sensational events the most important. The building up of the cells of the com- munity's life upon a large and enduring plane may be of inestimable value; and this is what Shaw did so far as, and perhaps more than, he could well afford if we consider his need of supporting himself by his law practice. In his own 'apologia pro vita sua,' if I may call it so, to the Suffolk Bar when he became Chief Justice in 1830 he said :
"I commenced the practice of law in this city in the autumn of 1804, and have ever since resided here. I was a member of the House of Representatives from 1811 to 1815, again in 1819, in the convention for amending the Constitu- tion in 1820, and in the Senate of 1821-22, again in the House of Representatives in 1829. I was of the Committee of the town who framed the plan of City Government, drew up the report and the act of incorporators. I have held several
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elective offices under both the town and city government" and it may be added, as he did not say, that he was a force wherever he took a part.
His practice, never very large, was moderate in all his earlier life, but seems to have increased enough during his last ten years at the bar for him to say later that he had given up half his income to take his seat on the bench. With this and his manifold, though rather miscellaneous, useful- ness to his city and his state he seems to have been content, for he had no strong personal ambition or exalted opinion of his own talents. Therefore, when on the death of Chief Justice Parker, in the summer of 1830, Governor Lincoln offered to appoint him to the vacant place, he wrote a list of reasons for accepting or declining the position neither of which showed any conception of the contributions he was destined to make to American jurisprudence. After a brief consideration of the pros and cons he declined the offer, and it was only at the personal urging of Daniel Webster that he was prevailed upon to change his mind and accept.
At that time the State courts were-relatively to the Fed- eral ones-more important than they are today. The Four- teenth Amendment had not given the latter the supervision of state legislation they have since possessed : corporations have enormously increased, and the doctrine that they may be sued in a federal court by citizens of States other than the one where they are chartered has opened another door. So has the vast extension of interstate, as compared with local, business, not to mention the enlargement of federal legislation by other constitutional amendments, and there- fore of the jurisdiction of the courts thereunder.
Moreover, at the time of his appointment commercial activity within the States themselves had been increasing; commerce and manufactures had been developing; and the Common Law of England, acquired by the early settlers by an unconscious process of inheritance, was somewhat primi- tive in form in this country, needing to be readjusted to wants of more modern communities, and especially to the rising industrial age. Nor must it be forgotten that much of this growing jurisprudence was new to all the States-to those just admitted it was nascent-and hence they all fol- lowed readily wise decisions made in other State courts. It is noteworthy also that in those days the making of law was more in the domain of the courts than it is now, and the regulation of details was less a function of the legislature.
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