Basing his argument on ideas drawn from the Magna Carta and from the English Bill of Rights of 1689, James Otis clarified the argument that the taxes on the colonists were unfair because the colonies had no voting representatives in Parliament. Otis was probably the first to say or write the phrase "no taxation without representation" - but the evidence is not conclusive. The oldest surviving text with that phrase is dated February 1768: a London magazine's account of a speech. But Otis was widely read and discussed in English political circles, and the author of that speech may well have gotten the phrase from Otis. It is confirmed that Otis wrote "Taxation without representation is tyranny" and other similar phrasings of the thought. Historian Les Standiford writes:
However, the concept of the basic unfairness of being taxed without the consent of one's elected representatives had certainly been eloquently expressed by the Boston assemblyman and attorney James Otis, Jr., as early as 1764 in a pamphlet of protest, The Rights of the British Colonies Asserted and Proved. Otis framed his argument by asking, "Can there be any liberty where property is taken away without consent?" Then he began his answer with a second question: "Is there the least difference as to the consent of the colonists whether taxes and impositions are laid on their trade and other property by the crown alone or by the Parliament?"
Having graduated from Harvard College in 1743, James Otis had been practicing law in Boston since 1750. In 1761, he gained fame by mounting a legal challenge to "writs of assistance" issued by the British government. These documents were search warrants which allowed English tax officials nearly unlimited access to the homes of colonists. Neither the specific home to be searched, nor the object of the search, were specified; British bureaucrats were entitled to barge into anyone's home, with no notice, and look for anything they pleased. James Otis may be the spiritual father of the fourth amendment, which reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In May 1761, Otis was elected to the legislative body of Massachusetts, and would be reelected continuously as long as he was fit. Like many of the early revolutionaries, his arguments were based, not on his rights as an American, but rather on his rights as a British subject. This reveals the degree to which the early protesters were still trying to work with the British system. Only when it became clear that they would never be granted appropriate representation in Parliament, and only when it became clear that the British would continue to ravage the colonists and trample human rights by means of taxation, that independence became the goal, instead of correcting the behavior of the British government. Les Standiford quotes Otis:
For Otis, it was a simple matter, though he made his case with passion: "I can see no reason to doubt but the imposition of taxes, whether on trade, or on land, or houses, or ships, on real or personal, fixed or floating property, in the colonies is absolutely irreconcilable with the rights of the colonists as British subjects and as men ... for in a state of nature no man can take my property from me without my consent: if he does, he deprives me of my liberty and makes me a slave. If such a proceeding is a breach of the law of nature, no law of society can make it just. The very act of taxing exercised over those who are not represented [emphasis added] appears to me to be depriving them of one of their most essential rights as freemen, and if continued seems to be in effect an entire disfranchisement of every civil right."
In 1762, Otis published one of his most famous works, a book titled A Vindication of the Conduct of the House of Representatives of the Province of Massachusetts Bay; in it he articulated the view that the colonists should not be taxed to pay for the defense of the colonies by English soldiers and by the English navy, because the colonists could protect themselves with their militias, do it better, do it at less cost, and do it without creating the misery which the drunken and harassing English soldiers inflicted upon the colonists. He drafted documents which were sent to London to explain the rights of colonists according to British law, and he was a member of the Stamp Act Congress. He published two more books, The Rights of the British Colonies Asserted and Proved and Considerations on Behalf of the Colonists, and his speeches and writings were influential within the growing revolutionary movement. He wrote:
The sum of my argument is: that civil government is of God; that the administrators of it were originally the whole people; that they might have devolved it on whom they pleased; that this devolution is fiduciary, for the good of the whole; that by the British constitution this devolution is on the King, Lords and Commons, the supreme, sacred and uncontrollable legislative power not only in the realm but through the dominions; that by the abdication, the original compact was broken to pieces; that by the Revolution it was renewed and more firmly established, and the rights and liberties of the subject in all parts of the dominions more fully explained and confirmed; that in consequence of this establishment and the acts of succession and union, His Majesty George III is rightful King and sovereign, and, with his Parliament, the supreme legislative of Great Britain, France, and Ireland, and the dominions thereto belonging; that this constitution is the most free one and by far the best now existing on earth; that by this constitution every man in the dominions is a free man; that no parts of His Majesty's dominions can be taxed without their consent; that every part has a right to be represented in the supreme or some subordinate legislature; that the refusal of this would seem to be a contradiction in practice to the theory of the constitution; that the colonies are subordinate dominions and are now in such a state as to make it best for the good of the whole that they should not only be continued in the enjoyment of subordinate legislation but be also represented in some proportion to their number and estates in the grand legislature of the nation; that this would firmly unite all parts of the British empire in the greater peace and prosperity, and render it invulnerable and perpetual.
James Otis, along with Sam Adams and Patrick Henry, seemed to realize, more than some of their fellow founding fathers, the power of the emotion among the colonists. He perhaps realized early what others realized later: that the time was ripe for a revolution, and that the colonists had been subject to such abuse for so long a time that they were ready to riot, to throw valuable cargo into Boston Harbor, and to start a war for independence. Les Standiford reveals that Otis was even ahead of Benjamin Franklin in understanding the revolutionary sentiment among the people:
If Otis was calling for colonists to boycott the tax, however, shortly after the act's passage the British were taking steps to see that the desperately needed funds would in act begin flowing into the national coffers. Even Benjamin Franklin miscalculated the depth of passions loosed in the colonies, it seemed, for he went so far as to nominate a Philadelphia friend, John Hughes, to serve as stamps distributor for Pennsylvania. It was only when word reached Franklin that an angry mob had surrounded Hughes to prevent him from assuming his duties and another had marched on Franklin's own home, threatening to burn it down, that the envoy began to understand that a profound shift in Anglo-American affairs had taken place.
Sadly, James Otis was struck on the head by a British officer in 1769. He was disabled from that time forward, although he lived until 1783. By the time he died, the United States was free and independent, thanks in part to his work.