You have now the stage and the scenery. Next follows a narration of the subject. I rather think that we lawyers ought to call it a brief of the cause.
When the British ministry received from general Amherst his despatches, announcing his conquest of Montreal, and the consequent annihilation of the French government and power in America, in 1759, they immediately conceived the design and took the resolution of conquering the English colonies, and subjecting them to the unlimited authority of parliament. With this view and intention, they sent orders and instructions to the collector of the customs in Boston, Mr. Charles Paxton, to apply to the civil authority for writs of assistance, to enable the custom house officers, tide waiters, land waiters, and all, to command all sheriffs and constables to attend and aid them in breaking open houses, stores, shops, cellars, ships, bales, trunks, chests, casks, packages of all sorts, to search for goods, wares and merchandizes, which had been imported against the prohibitions, or without paying the taxes imposed by certain acts of parliament, called "The Acts of Trade," i. e. by certain parliamentary statutes, which had been procured to be passed from time to time, for a century before, by a combination of selfish intrigues between West India planters and North American royal governors. These acts never had been executed, and there never had been a time when they would have been, or could have been, obeyed.
Mr. Paxton, no doubt consulting with governor Bernard, lieutenant governor Hutchinson, and all the principal crown officers, and all the rest of the Junto, thought it not prudent to commence his operations in Boston. For obvious reasons, he instructed his deputy collector in Salem, Mr. Cockle, to apply by petition to the superior court, in November, 1760, then sitting in that town, for writs of assistance. Stephen Sewall was then chief justice of that court, an able man, an uncorrupted American, and a sound whig, a sincere friend of liberty, civil and religious. He expressed great doubts of the legality of such a writ, and of the authority of the court to grant it. Not one of his brother judges uttered a word in favor of it; but as it was an application on the part of the crown, it must be heard and determined. After consultation, the court ordered the question to be argued at the next February term, in Boston, i. e. in 1761.
In the mean time chief justice Sewall died, and lieutenant governor Hutchinson was appointed chief justice of that court in his stead. Every observing and thinking man knew that this appointment was made for the direct purpose of deciding this question, in favour of the crown, and all others in which it should be interested.
An alarm was spread far and wide. Merchants of Salem and Boston applied to Mr. Pratt, who refused, and to Mr. Otis and Mr. Thatcher, who accepted, to defend them against this terrible menacing monster, the writ of assistance. Great fees were offered, but Otis, and I believe Thatcher, would accept of none. "In such a cause," said Otis, "I despise all fees."
I have given you a sketch of the stage and the scenery, and a brief of the cause; or, if you like the phrase better, of the tragedy, comedy or farce.
Now for the actors and performers. Mr. Gridley argued with his characteristic learning, ingenuity and dignity, and said every thing that could be said in favour of Cockle's petition, all depending, however, on the "If the parliament of Great Britain is the sovereign legislator of all the British empire."
Mr. Thatcher followed him on the other side, and argued with the softness of manners, the ingenuity, the cool reasoning which were peculiar to his amiable character.
But Otis was a flame of Fire! With a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glare of his eyes into futurity, and a rapid torrent of impetuous eloquence he hurried away all before him. American independence was then and there born. The seeds of patriots and heroes to defend the Non Sine Diis Animosus Infans; to defend the vigorous youth were then and there sown. Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In fifteen years, i. e. in 1776, he grew up to manhood and declared himself free.