James Otis, Jr., on Taxation Without Representation

Until 2 Nov 2005, the phrase “taxation without representation” has almost always been credited to the Boston lawyer and legislator James Otis, Jr. The basis for this attribution is John Adams’s recollection of how Otis argued the writs of assistance case in 1761, in a letter to Otis’s biographer William Tudor, Jr., in 1818. After quoting that letter at length Tudor wrote:

From the navigation act the advocate [Otis] passed to the Acts of Trade, and these, he contended, imposed taxes, enormous, burthensome, intolerable taxes; and on this topic he gave full scope to his talent, for powerful declamation and invective, against the tyranny of taxation without representation.

From the energy with which he urged this position, that taxation without representation is tyranny, it came to be a common maxim in the mouth of every one. And with him it formed the basis of all his speeches and political writings; he builds all his opposition to arbitrary measures from this foundation, and perpetually recurs to it through his whole career, as the great constitutional theme of liberty, and as the fundamental principle of all opposition to arbitrary power.

However, neither Adams’s contemporaneous notes on what he’d heard in 1761 nor his letter contained the “taxation without representation” phrase or argument. We know he was urging Tudor to write about Otis as a way to capture some of the attention that William Wirt’s romanticized biography had brought to Patrick Henry of Virginia. Adams and Tudor had strong motives to present Otis, a Massachusetts man, as the first to establish the fundamental political conflict of the Revolution.

And in fact Otis did so—even if he didn’t use the words we remember. In his 1764 pamphlet The Rights of the British Colonies Asserted and Proved (extensive extracts here), Otis concluded:

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.

In case you missed it within that magnificent 311-word sentence, Otis wrote: “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;...”

So James Otis certainly focused on the idea that the Parliament in London couldn’t lay taxes (or Customs duties) on American colonists because that legislature didn’t represent those colonists, that the only legislatures which could impose such taxes were those the colonists elected according to their charters. But Otis didn’t phrase his argument in rhyme.

TOMORROW: So did any Americans in the Revolutionary era use the phrase “taxation without representation”?