by Nathan Allen
Court Party advocates and friends of government argued repeatedly that the colonists were represented in Parliament; the slogan “no taxation without representation” made no sense to them because the colonists in many cases, and certainly in the case of Massachusetts, directly elected their House Representatives, and it was the House that originated the majority of revenue bills. Further, everyone in the empire was represented virtually in Parliament; as had been frequently indicated by the friends of government, a great many people did not or could not vote, and yet Parliament represented everyone. In fact, the friends of government argued that this was superior to the “actual representation” that a few agitators desired because “actual representation” would result in a House of Commons that was full of nothing more than sectarian lobbyists attempting to drag back to their districts the largest pieces of government pork they could secure. As Parliament was then constituted, the members voted for whatever was best for the country as a whole, not for any particular faction.
Opponents of virtual representation not only rejected anything other than direct representation, but also typically rejected representation in Parliament because it wasn’t local; as Otis put it, the members of Parliament were as far removed from New England as the savages of California; true representation must be done locally. And in every case, “representation” explicitly entailed consent; opponents of virtual representation often used the terms “representation” and “consent” interchangeably, meaning that they opposed representation without consent. Representative democracy, as envisioned by the Popular Party, entailed consent in its most literal and direct application. Virtual representation could not entail consent, and representation in distant London, even actual representation, was perverted by a lack of direct consent. For this reason, it wasn’t unusual for local men to provide their local representatives with specific instructions on how to approach and vote on matters that were likely to come before the House.
And for Otis, it was irrelevant whether Parliament was absolute or not; this is why he often baffled his friends and enemies alike by sometimes disregarding the question of Parliament’s power. Since the middle ages, English law and the constitution affirmed that taxation could only occur via the consent of elected representatives in the Commons. So for Otis, no degree of authority permits a government to tax without consent. Thus Otis could concede the issue of Parliamentary authority if it quelled the anger of the Court Party because, he would argue, Parliament was still obligated to obtain the consent of the taxed. On this, the Popular Party agreed; disagreement within the Popular Party existed over whether representation in Parliament, if even possible, was a solution. And yet if the colonists demanded consent, then representation in parliament was the only solution if they wished to remain within the British Empire. It’s impossible to know what Jemmy thought on this subject other than his published writings, but he may have known at that time that such a solution was impossible for Parliament to accept, and yet the act of offering it put the onus directly on the Empire, and it would soon respond forcefully.
While it is unknown how many copies of the remarkable Rights of the British Colonies were printed at the time, it was dispatched to London the same day it appeared in Boston and was reprinted in England several times before the end of 1764. It was widely read by important government officials, many of whom praised or condemned it depending on their political persuasion. Joseph Harrison, a future Boston customs officer, wrote from London to John Temple, the Surveyor General of Customs in Boston, that “Mr Otis’s Rights of the British Colonies has been reprinted here and I am told it gives great offence to the Ministry.” The pamphlet was referenced in several Parliamentary discussions, and Lord Lyttelton and Lord Mansfield debated its import and impact in the House of Lords. Lord Lyttelton noted that “The Americans themselves make no distinction between external and internal taxes. Mr. Otis their champion scouts such a distinction,” and Lord Mansfield observed that “Otis is a man of consequence among the people there” and though Rights “be called silly and mad, but mad people, or persons have entertained silly and mad ideas, have led people to rebellion, and overturned empires.” Arthur Savage, a young Bostonian in London, reported that “opinions seem verry various in respect to Mr Otis jr. Some say it ought to be wrote in Letters of Gold – others think it is a Clam’rous Ill judg’d thing.” Several London periodicals published essays about the pamphlet, and the Critical Review printed a lengthy assessment in its 1764 volume XVIII edition. The Review warned Otis against sowing the seeds of enmity in English towns that have no direct Parliamentary representation such as Birmingham, Halifax, Leeds and Sheffield. The Review then snidely remarks:
We applaud Mr. Otis’s zeal and should be glad that he had published a scheme of reciprocal independence between our colonies and Great Britain, which may be done in the way of a debtor and creditor, and which very possibly might awaken him and his vigorous friends from their visionary dreams of independency upon their mother country. There is nothing like a fair counter-reckoning, good Mr. Otis.
For some in England, it was clear by 1764 that Otis’s political philosophy inevitably leads to independence, but the Review suggested that perhaps Great Britain would desire independence because then the colonies would be liable for all its own debts. A December 1764 meeting of the Board of Trade officially examined Rights and concluded that the “Acts and Resolutions of the British Parliament were treated with indecent disrespect and principles of a dangerous nature and tendency adopted and avowed.” A lack of deference was nearly as serious a charge as treason, for it sprang from the same source: disrespect for authority. The Board referred the pamphlet to the Privy Council, which concluded that the offending documents should be presented to Parliament for action if the King concluded they deserved a formal response from the Empire.
Governor Bernard feared the worst, particularly after the recent “paper war,” and was impressed by the moderate nature of Rights, sending the pamphlet to London with a note observing that though “the writer is by nature violent & vehement in his principles, this piece appears to us more temperate & decent than was at first expected. . . .” Lord Mansfield’s and Governor Bernard’s assessments reveal the growing distance between the local understanding of the radicals and London’s distant understanding; Mansfield declared “The book is full of wildness” while Bernard sensed that the Popular Party was capable of much more unbridled behavior than a pamphlet demanding rights and consent. And yet Bernard’s apparent insight that political pamphlets were reasonably acceptable and thus the Popular Party was becoming friendlier to government would prove to be his ruin. The Rights of the British Colonies was the first major attempt by a knowledgeable American who was on, or rather in, the scene to present a comprehensive radical colonial view. Rights provided the logic and language needed for colonists to express radical thought and developed the idea that rights and consent were not granted by governments but instilled by God. The seeds of rebellion had been planted.
Two other pamphlets were published in 1764: Connecticut Governor Thomas Fitch’s Reasons Why and Oxenbridge Thacher’s Sentiments of a British American. Until 1764, Connecticut had been largely neutral in the battle over rights in Boston because of its small rum industry and hence negligible exposure to sugar and molasses duties and to the confidence they had in their competent lobbyist Richard Jackson. Governor Fitch’s Reasons Why was the product of a state committee and hence an official document and was produced in response to an increasing awareness that the impending stamp duties – in contrast to sugar taxes – would affect Connecticut as much as any other state. In defense of Connecticut’s narrow interests, Reasons Why made the argument that Otis completely rejected – that there was a substantial legal difference between internal and external taxes; the sphere of Britain’s legitimate interests ended at Connecticut’s borders, and all taxes within the state must originate within the state. Of course, Connecticut did not have the major import/export economy that Rhode Island and Ma
ssachusetts had.
Thacher had clearly been speaking to Otis about their pamphlets. In The Rights of the British Colonies, Otis remarked that “materials are collecting” to exhibit the extent of Massachusetts’s “burden” in protecting British interests. The Oxenbridge Thacher Papers of the Massachusetts Historical Society in Boston contains a compilation of rough drafts Thacher’s handwriting that has never been published. And in writing The Sentiments of a British American, Thacher undeniably had Otis’s Rights before him, the bulk of which he adopted as the foundation of his argument; only after summarizing Otis’s work does Thacher proceed to examine the issue surround the Sugar Act’s enforcement provisions with particular stress on the worrisome swelling of the jurisdiction of juryless vice-admiralty courts.
Jemmy’s Rights was the most undeniably forceful among these early revolutionary pamphlets. He alone surveyed a board array of political theory and adopted what was useful and uniquely modified much of what he adopted; his origins of government was a remarkable philosophy that roundly rejected most usual theories, just as he’d denied Locke’s reliance on property and the typical distinction between internal and external taxes. And the “elasticity” of mind inevitably led to places logic could not deny: slavery was a corruption of natural rights, and consent through direct representation was the only solution for the Empire. His prescient rebuke of slavery would be quoted in Parliamentary debate over the next few decades. And he concluded that direct representation would “firmly unite all parts of the British empire, in the greatest peace and prosperity; and render it invulnerable and perpetual.” The obvious implication is that a lack of direct representation would divide the empire and render it vulnerable and temporary. His examination of hierarchy as a series of subordinate governments that begins at the zenith with God as the originator of natural law and progresses down to the most modest social and political groups – the authority of each limiting the prerogatives of its subordinates – was a mosaic of complex political, theosophical, and legal considerations but was also a more effective and ultimately damning avenue of criticism than the typical internal-external dichotomous account of government relationships. Otis’s reliance on natural law, conception of a balance of powers, and vision of a hierarchy of subordinate governments was a direct forebear of the Constitutional debates of 1787 and a structural forerunner of a supreme parliament of the Britannic Empire and the federal structure of the United States. The great difficulty in Rights results from its vast absorption of what is and what was, the post Glorious Revolution legal system and the Convention Parliament and the pre-1687 power balances, and Lord Coke’s writings. He adopted Coke’s view of the courts’s function as sentinels of the common law and common sense while concurrently approving the parliamentary supremacy of 1689. As such, Jemmy was not describing a system of authority that presently existed. He had brilliantly detailed the problems and solution but had not yet devised a peaceful method to advance from the former to the latter. The legislative branch was supreme, except that it could not contravene the citizens’ rights. The legislative branch had the power to contravene these rights, but such power must be curtailed. In both cases, some kind of court protected the citizens’ rights and limited the legislative branch’s power but not such that the courts would be more powerful than the legislative. The solution was in a written constitution and a complex kind of federalism that would make changing that constitution possible but difficult, and a legislative that authored all laws watched over by a court that suspiciously guarded against infringements upon the written constitution. Otis essentially described the features of such a system without describing the system itself, which was difficult – perhaps impossible – to imagine within the imperial structure as it existed in 1764.
Composing and publishing Rights was not easy for Jemmy, but he felt compelled, declaring, “I have waited years in hopes to see some one friend of the colonies pleading in publick for them. I have waited in vain.” He was torn between his brothers and father who all apparently aspired to the oligarchy; he had fought in the trenches of local politics and suffered repeated defeats at the hands of the Court Party; the specter of an omnipotent ministry loomed over the colonies. The lurking ethos of Rights is an abiding, unshakable melancholy. Regarding his motivations, Otis wrote:
should any thing have escaped me, or hereafter fall from my pen, that bears the least aspect but that of obedience, duty and loyalty to the King & parliament, and the highest respect for the ministry, the candid will impute it to the agony of my heart, rather than to the pravity of my will. If I have one ambitious wish, ‘tis to see Great-Britain at the head of the world, and to see my King, under God, the father of mankind. I pretend neither to the spirit of prophecy, nor any uncommon skill in predicting a Crisis, much less to tell when it begins to be “nascent” or is fairly midwiv’d into the world.
Jemmy is, above all, a loyal and thankful subject of the Empire expressing “the agony of my heart,” who does not wish a “Crisis,” and yet who writes with melancholy precisely because he realizes that what must be cannot be – colonial representation in Parliament.
Otis’s pamphlet first traveled to England in the same packet as the manuscript of another pamphlet that addressed every point in Rights. This manuscript asserted the supremacy of parliament, asserted that “tender regard” for “all rights natural and acquired” must be preserved, claimed that those not represented cannot be taxed, declared that there was no difference between internal and external taxes, and it rejected virtual representation. It was written by Thomas Hutchinson. Hutchinson’s manuscript responded to the colonists’ complaints by demanding actual representation as a prerequisite for taxation and seeking protection for all colonial rights. The man at the helm of the oligarchy was no dictatorial thug or advocate for strictly hierarchical, tightly controlled regimes. In fact, Hutchinson seems like a reasonable, fairly progressive, avuncular advocate for his province’s rights. That Jemmy Otis consistently rejected Hutchinson’s position en masse evidences the fierce radicalism of Otis and his Rights.
CHAPTER VII
the Terror of Election
A few merchants and politicians in London and Boston fretted about growing colonial resistance to Grenville’s plans and the theories contained in The Rights of the British Colonies Asserted and Proved, but for most colonists, 1764 wasn’t markedly different from the previous year. As usual, smallpox was a constant threat. Smallpox localizes in the skin, mouth and throat and results in characteristic rashes and blisters. The mortality rate could be as high as 35%, but the more common result was facial scars, which occurred in as many as 85% of survivors. Children were particularly susceptible, and child mortality rates were as high as 80%. George Washington became infected with smallpox on a visit to Barbados in 1751. Almost immediately after becoming the College of New Jersey’s president in February 16, 1758, famed preacher Jonathan Edwards became a strong supporter of small pox inoculations and publicized his own recent inoculation. He died of the inoculation a month later.
So it wasn’t surprising when, in the spring of 1764 as smallpox lingered in Boston, Otis’s children, Polly, Elizabeth and Jemmy, became seriously ill. And that same spring, on April 23, the Boston Gazette published an article in which Otis family physician, Dr. Samuel Gelston, accused William Greenleaf, Jr. of selling adulterated drugs to the Castle William inoculation hospital causing “loss of life.” Obviously accusing someone of supplying the King’s (and governor’s) hospital with diluted or fraudulent medicines when people were dying of smallpox caused quite a public outcry. So while the debate about the rights and consent of the governed continued, the colonists dealt with the omnipresent smallpox threat. That spring was probably difficult for Jemmy as it seems that all of his children contracted the highly infectious disease. Luckily, by the summer, his children’s health seemed to be improving, but Jemmy’s marriage to Ruth was not improving; she was a stalwart loyalist who disapproved of the rebel activities and openly opined on the virtues of the B
ritish Empire.
The General Court’s 1764 summer recess left serious questions unanswered, but it gave time for Otis to return to his law practice. He wrote notes to his father about a bill for costs in a pending case and revealed a suspicion that his mail was being illicitly read. He had also expressed this suspicion to Thomas Cushing who, in turn, questioned Jasper Mauduit about the possibility in a letter dated September 12, 1763: “I can’t learn Mr. Otis of late received any of your favors. He suspects his Letters have been intercepted.” A pervasive fear of conspiracy permeated the air on both sides of the Atlantic. The Boston Superior Court’s 1764 August term was a diversion from the simmering political wars, just as it had been the previous summer, and again young Josiah Quincy was writing everything down. In one slave case, Jemmy argued about the competency of an administrator to testify about the condition of a decedent’s estate, and whether recovery of stolen property’s value could apply to a slave. In another case, Jemmy argued that the clothes owned by a woman before marriage could not be ordered sold by a court to cover her husband’s debts. Chief Justice Hutchinson refused to condone the seizure and dissented from the majority of the court, which had concluded that all of a woman’s personal property was legally owned by her husband upon marriage. More interesting than Otis’s arguments in these two cases are that they reveal a sense of justice that is decades ahead of his time, but these cases also reveal a fellow traveler on the road to progressive justice: Chief Justice Hutchinson. The opinions he wrote clearly demonstrate that opponents of his appointment were correct: he was certainly unfamiliar with procedural points of evidence and pleading. But he also exhibits a sense of fairness unlike many of the other justices, which leaves us with the irony of a man who Otis depicted in the press as a greedy “Leviathan” who enjoyed “keeping people poor” quickly agreeing with his tormentor that it was unjust for a wife to “go naked.” Newspaper articles and pamphlets give the impression that Otis and Hutchinson were enemies in all regards, but they worked rather closely in the courts despite their political differences. Reflecting an attitude that borders on playful friendliness, Hutchinson wrote Ezra Stiles on July 4, 1764, “I have had too great a share myself in our publick affairs for 30 years past to think of publishing that part of our History. I threaten Mr. Otis sometimes that I will be revenged of him after I am dead.” Hutchinson had previously joked that he took political positions in order to keep Jemmy busy. Despite being political adversaries, their personal interactions were usually friendly and professional, and there are glimmers of personal admiration between them.