by Nathan Allen
The judgment was of interest in England because Erving’s ship was seized while Pownall was governor, meaning one-third of any finding for the plaintiff would be paid personally by Pownall since the governor received one-third of the value of the settlement. Pownall was now a general in the British army. Governor Bernard panicked, as he typically did, and wrote to the Lords of Trade in England that he feared this decision would be the first snow flake in a coming blizzard. In a letter to the Board of Trade on August 6, 1761, Bernard said that Otis’s lawsuit had “an immediate tendency to destroy the Court of Admiralty and with it the Custom house, which cannot subsist without that Court. Indeed the intention is made no secret of.” And in a letter to Pownall dated August 28, Bernard continued to blame Otis as the source of all of his troubles, writing, “Mr Otis, Junr is at the head of the Confederacy. If you are acquainted with the natural Violence of his temper, supposed it to be augmented beyond all bounds of Common decency.” The leader of the “combination of Merchants” was now named, and as Otis had earlier predicted, he would no longer be considered a “friend of government” but rather an enemy of the established oligarchy.
Despite “harangues of the council for the plaintiff,” the Superior Court directed the jury to find for the defense on appeal because the Admiralty Court’s judgment was not subject to common law; typically, once an action was started in Admiralty Court, the case was immune from common law courts. Hutchinson “imagined their [the Court’s] opinion upon what was a mere matter of law, would have the same influence with the jury as formerly in like case,” but the jurymen, reminiscent of Captain Kidd’s crew saluting the Royal Navy with their derrières, fully affirmed the judgment against defendant Cradock in the amount of £740, which included interest. Former governor Pownall was required to pay £247.
Cradock was granted an appeal to the King in Council, but in the meantime he was subject to jailing if he did not pay the judgment, a matter of some concern to Bernard. Cradock could certainly have his appeal heard back in England, a process that would take many months, but he’d either need to pay the entire judgment – an enormous amount – or spend those months in jail. But, like the Paxton case, Erving’s case had by February 1762 drifted into a different political scene and was quietly settled out of court.
Meanwhile, Barons was not content to sit idly. He was aware that the governor and Paxton were plotting his downfall as retribution for the customs information he provided Otis for use in the Paxton case. Barons redoubled his efforts to increase animosity between the customs officers and Boston merchants, mostly with threats, gossip, and promises; but in late April he attempted to physically block the seizure of a highly illegal shipment from New Orleans. This was too much for old Thomas Lechmere, and he suspended Barons again and appointed Cradock as acting collector. Barons thought the suspension was illegal and his “Confederate” Jemmy Otis promptly filed three lawsuits, against Lechmere for unlawful suspension, against Cradock for taking his position in the customs house, and against Cradock for going over Barons’s head in complaining to Lechmere. The suit against Lechmere was for £10,000, and borrowing from Edmund Trowbridge’s playbook, Otis demanded the much dreaded “special bail.” Lechmere was to be either jailed or bonded. Luckily, Lechmere was bonded at the last minute by wealthy councilor Thomas Flucker.
But, of course, the governor and the top tax officials in the province would marshal a solid defense, and, as everyone knew, Barons was admitting he smuggled goods, so the suspension seemed quite justified. Otis let the case linger, and he knew that it almost certainly could not be won; he had achieved his goal of harassing “the government.” Barons was without money and his health was failing. His merchant friends wrote to the governor, pleading his case, and the governor agreed to settle the matter, but Barons refused to drop the case. Barons would fade from the public scene as would Lechmere who was 78 years old and was drinking enough Madeira wine to fill “a 74 gun ship.” Lechmere would die in 1765. The case was hanging over both their heads to the end.
The period of 1760 to 1765 was witness to a significant coalescence of the merchant community – the “combination of Merchants” – partly triggered by the growing power and aggressiveness of the tax officials, which in turn was triggered by London’s increasing intolerance for tax evasion. The concern and cohesiveness of this group was doubtless heightened by British Secretary of State William Pitt’s rigid positions on trade and taxation that revealed his increasing frustration with Massachusetts merchant activity, mostly trading with the enemy France. Customs tax racketeering – those private agreements between tax collectors and merchants – was certainly an aggravating factor, as was what the merchants felt was discriminatory treatment compared to that of “wide open” Rhode Island. The Boston Gazette published an article on December 7, 1761 that complained, “It is not notorious that the Acts of Trade are nowhere executed with Rigor but in the Province?” The merchants widely believed that Massachusetts was treated unfairly, and, unfair or not, the Acts of Trade were enforced in Massachusetts as nowhere else.
Of course smuggling was widespread, and smuggling and customs racketeering fed on each other, but the balance between the two had been thrown off as the two sides seemed to declare war on each other. The primary cause of the equilibrium being disrupted is most likely the Seven Years’ War, which made many colonists, such as Hutchinson, very wealthy and significantly increased merchant activity yet made trade with the French treasonous. This combination of growing private sector activity and a perception that it needed to be controlled fueled the expansion of the power and wealth of the government and the oligarchy that controlled it. Boston merchants uniting under James Otis to fight customs tax cases directly foreshadowed the political battles of the 1760s and the war of 1776. The unification of the Boston merchant community was fairly novel in 1760, but it was clearly powerful, and no one would soon forget that unification produced results that none alone could.
Thomas Pownall had more pressing concerns than losing a few hundred pounds in a colonial lawsuit; he would soon be sent as a general of British troops to fight in Germany. But Governor Bernard was frightened that Jemmy Otis was destroying his easy, lucrative fantasy world. Barons was obviously greedy, rash, and vindictive, but without the intelligence or strength of character to do anything more than inveigle in and out of “confederacies” and “play the Devil.” Charles Paxton was a very slippery and dishonest man. He nearly always managed to insert expenses for “procuring Information,” sometimes for as much as £93, and the Admiralty Court almost always paid the amount, which almost certainly went straight into Paxton’s pocket. Paxton secured his position by being a sycophant to Bernard, but it was a tenuous position that made him hated more than liked.
Jemmy’s threat – “I will kindle such a fire” – had traumatic meaning for Bostonians with memories of the recent fire that burned the heart of the town. Otis followed his threat with a period of intense activity, employing weapons close at hand: Barons’s unstable vindictiveness, newspapers that would publish anonymous screeds, the restless merchant “Society,” and his own legal acumen. And while Paxton was a tempting initial target, it was obvious that the inevitable targets were Hutchinson, Bernard, and a government bureaucracy that was viewed by some as corrupted by rats and dictators. The Petition of Lechmere explosively expanded the issue, for though the target of Otis’s argument was the crippling of the customs officers’ efforts and the embarrassment of the oligarchy, there was a broader question that transcended the local world of political feuding, and thus Otis’s argument against the writs of assistance exists on two levels. There can be little doubt that Otis eagerly sought confrontation with the new chief justice, but more significantly he wished to pit individual rights against oligarchic oppression. In his argument, Otis skillfully interwove the theme of natural equity rights with Locke’s natural rights of the individual. The idea that one’s rights were guaranteed not by a monarch or a government but rather by nature or God was fairly novel,
but Otis’s argument took a monumental leap by propelling that idea from the realm of philosophy and academic debate to practical application. Perhaps most importantly, Otis’s argument at the Council Chamber in the Town House on the evening of February 24, 1761 built the philosophical and legal foundation for resistance to acts of Parliament. It wasn’t just lawyers and judges who took note; Otis’s argument against Parliamentary power would soon be repeated on the streets of Boston. And this result demonstrates how Otis had moved beyond the philosophical musings of Bolingbroke and Cato’s Letters and into the world of practical application; it was no longer enough to speak of rights and consent and say that “An Act against the Constitution is void.” Now in the courts, those seditious ideas would be put to action. And soon that action would be taken to government meeting rooms, newspapers and the streets. Otis was determined that Gray’s Elegy – Full many a flower is born to blush unseen – would not apply to the concept of natural rights.
Otis must have known that Hutchinson would have been placed in a difficult position, but Hutchinson never cracked. Even as a judicial novice, he had doubts regarding the theoretical propriety of such a writ, but he was conscious of his duty as a “friend of government” and could undoubtedly understand the problems that would ensue if the validity of the writs were to be denied. He parried Otis’s thrust by delaying the case, thus pausing the action while evaluating his options.
But was Otis just another lawyer arguing a case or an innovative patriot risking his life? Hutchinson, in retrospect, commented that “Otis’s zeal in carrying on these causes was deemed as meretorious as if it had sprung from a sincere concern for the liberties of the people.” Even Hutchinson, who largely blamed Otis for his own downfall and exile in 1776, could see no selfish motive in Otis’s behavior. Of course, Hutchinson didn’t label Otis a patriot either; he labeled Otis insane. Bernard’s almost neurotic concern over Barons led him to lump all of them together as a conspiracy to wreck his peaceful administration. Otis may have begun his actions to strike directly at the oligarchy, but it’s evident from his persistence and consistency that he earnestly believed in his cause. Perhaps he initially intended to set aflame the courts and Castle William, but it was clear by 1762 that the fire was spreading across the province.
CHAPTER IV
the Resentor & the popular Conductor
Prior to 1761, Jemmy Otis is only listed in town records as a member of the school visitation committee and on a temporary committee to address problems with the Naponsit Bridge. The customs battles of 1761 were merely one component of Otis’s efforts; in order to “kindle such a fire,” Otis moved to attack the oligarchy from behind enemy lines. To accomplish this, he tapped into two groups that operated beneath the surface of Boston’s political structure: the Society for Trade and the “Caucas Clubb.” By the fall of 1760, Jemmy was a de facto member, legal advisor and spokesman of the merchant group. In contrast, the “Caucas Clubb” would have no legal advisors or spokesmen; in fact, this political machine received little public attention prior to 1763 and left no documentation regarding its membership and operations. John Adams did not even know of its existence until 1763 when Boston assessor William Fairfield, register of the Vice Admiralty Court William Story, desultory tax collector Sam Adams, and town clerk William Cooper, were publically named as Caucas Clubb members. The group met in Thomas Dawes’s immense Purchase Street house, filled the garret room with cigar smoke, and agreed on appointments for town offices such as Informers of Deer, Surveyors of Hemp, Fence Viewers, and House Representatives. According to John Adams, a “caucas” representative would then confer with the merchant society, after which the selections and town meeting strategy would be distributed throughout Boston’s taverns, Masonic lodges, and occasionally by printed broadside. Despite the nefarious undertones of a political machine, the “Caucas Clubb” likely was borne as much from the necessity of filling some 130 town positions every year as from some wicked motive to control town politics. And given how apolitical most of Boston’s town governance was prior to 1764 – mostly focusing on paving roads and corralling hogs – it seems that controlling such positions was an unlikely source of great graft. The entire Boston town budget typically did not exceed a few thousand pounds, so it’s unlikely anyone viewed monopolizing local government as a means to great wealth.
On April 20, 1761, the Boston Evening-Post printed a statement that the “Society for Encouraging Trade” was “to meet at Mr. Ballard’s in King Street” to undoubtedly discuss the upcoming May election of Representatives to the General Court. The “Caucas Clubb” was likely also meeting, though no notice was made publicly. Normally Boston representatives had performed a variety of minor town responsibilities before earning the privilege of being considered for the top honor the town could grant – a seat on the Boston bench in the House. Royall Tyler, Otis’s Harvard classmate and rising politico, had served as Clerk of the Market, Fire Ward, and Overseer of the Poor before gaining his seat in the House. Otis could not claim such a record of longstanding public service, having served on a largely ceremonial school committee and offering some advice on a bridge. But something significant changed in the spring of 1761. On March 9, 1761, he is appointed to a committee to investigate the wisdom of improving the town dock, again apparently appealing to his interest in or knowledge of bridges. The following day Jemmy was appointed to committees to investigate whether the town should require building owners to purchase ladders to facilitate escaping from and extinguishing fires, to “consider of the best method for the repairs” to the recently burned Faneuil Hall and the method to fund those repairs, and to a committee to resolve the apparent traffic problems around Dock Square. Finally, he was appointed to Boston’s permanent committee of 15 to negotiate the town’s contribution of the province’s tax revenue. Two of Jemmy’s committees reported at the March 23 town meeting. The ladder committee stated that a regulation requiring the purchase of ladders would be “fruitless” and that it would be more efficient for the town to purchase “about Sixty good Ladders, to be distributed & deposited at convenient places in the Town.” The town would then have “Fire Meetings” to coordinate the implementation of the ladder purchases. The traffic committee drafted a petition to the governor and General Court requesting regulations against “the standing of People with their Horses and Carts in and about Dock Square, and the Street round the Market Place.”
In the spring of 1761, Jemmy had quickly moved into this world of ladder and traffic regulations and within a few weeks had crafted the resume it would have taken others years to produce. Certainly he had committed himself to this task, as no man of means and stature would have travelled this route involuntarily, and yet the two-week cavalcade of committee assignments had to be endorsed and promoted by powerful political forces; unmistakably, the “Caucas Clubb” and the “Society for Encouraging Trade” were building the preliminary earthworks for a much greater siege.
But winning a seat on the Boston bench required considering the incumbents, and since 1750, save for the 1760 purging of two “friends of government,” Benjamin Prat and John Tyng, by the merchants, the Boston bench in the House had been extremely stable, and none of the incumbents in 1761 had received the town’s reprobation. Royall Tyler and John Phillips, also a public servant of long standing, had replaced the purged members while Samuel Welles and Thomas Flucker held the other two Boston seats. Welles was about the same age as Colonel Otis and a justice of the Suffolk County Inferior Court, whereas Thomas Flucker was a wealthy merchant, an Otis client, and had held his seat since 1756. Tyler and Phillips were younger and faithful, so they certainly couldn’t be replaced; Flucker was affluent and influential and likely had higher aspirations, yet he seemed friendlier to government than to the merchants, as he was the one who bailed Lechmere out of jail. But the “combination of Merchants” was eager to place “the head of the Confederacy” on the Boston bench, and so the slate that evolved for the 1761 election evidenced indications of a negotiated deal tha
t entailed retirement for Welles and the promise of a seat on the Council for Thomas Flucker.
Otis received advice on the art of getting elected from Royall Tyler, including the suggestions to look sincere in meetings, institute family prayers before the servants, engage some home repair work just before election, and join the dock workers on their 11 o’clock break. Otis ignored the advice, and voter turnout was light at the Meeting of Freeholders on May 12, 1761 with only 334 votes cast. Otis came in third, behind Tyler and Phillips. Thomas Cushing, also running for Representative the first time, came in fourth. The Boston bench was now composed of Tyler, Philips, Otis and Cushing. John Adams later remembered that the 1761 election caused great anxiety in some quarters: “On the week of [Otis’s] election, I happened to be in Worcester, attending the Court of Common Pleas, of which Brigadier Ruggles was Chief Justice, when the news arrived from Boston of Mr. Otis’s election. You can have no idea of the consternation among the government people. Chief Justice Ruggles, at dinner at Colonel Chandler’s on that day said, ‘Out of this election will arise a damned faction, which will shake this province to its Foundation.’ Ruggles’s foresight reached not beyond his nose. That election has shaken two continents, and will shake all four.”