by Nathan Allen
So in many ways Commentaries was simply an apologia for the English legal system; Blackstone justified the system as it was, describing it as nearly perfect and providing plain explanations as to why the English legal system was reasonable and fair. The bulk of this reasonableness was built upon the foundation of medieval feudal hierarchies. According to Commentaries, “The Rights of Persons” is largely governed by their position in the hierarchy, starting with God and the King and working down to commoners. “Rights” were based on relationships: king/subject, husband/wife, master/servant, guardian/ward. “The Rights of Things” – property rights – is also primarily governed by feudal law. Colonial fealty to Parliament and the Crown were governed by “the law of nature” and could not be questioned or adjusted. Regarding “Public Wrongs,” Commentaries vigorously defends English law and is notoriously brutal in its summation, “It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by Act of Parliament to be felonious without benefit of clergy; or, in other words, to be worthy of instant death.” There can be no doubt that Commentaries is both a strident defense of Parliament’s absolute authority and a somber reminder of the mortal consequences of disobeying that authority. That Commentaries was widely accepted as the authoritative and final exposition of the English legal system renders it an austere threat to those who questioned Parliament’s supremacy.
While the English establishment maintained a philosophical desire to perpetuate feudal order, assigning seats in the House of Commons according to population – as was argued by some colonists, including Jemmy Otis – exposed a practical dilemma. England’s population increased by 14% from 1701 to 1751, while in the same time period, the population of the colonies had surged almost 370%. In the 18th century, England’s population would increase by 64% while the colonies’ population would swell by 2,016%. Had seats in the House of Commons been apportioned according to population, the colonies would have been assigned 25% of them by 1770, 39% by 1800, and 53% by 1840, thereby snatching control of the empire from the mother country. In just the two decades from 1750 to 1770, the colonial population spiked 83%. The population demographics were transparently disadvantageous to England, and the colonies’s 2,016% population growth in the 18th century was evident to all in the 1760s. Given the rapid and accelerating growth of the colonial population, it seemed that control from London was inevitably doomed; from that perspective, one could reasonably inquire as to whether the colonies would someday exert control over England. This dilemma left Blackstone little room but to promote feudal hierarchy as the only means to order the empire.
As the first attempt to systematize English common law, Commentaries was widely referenced; as the foundation for the application of English law, the four volumes became the standard text for law students and the customary source of citation for lawyers on both sides of the Atlantic. Commentaries would be oft quoted during America’s Constitutional Convention, in Federalist papers (No. 69 and 84) and by anti-Federalists such as Patrick Henry. Stamp Act Congress attendee John Dickinson later applied Blackstone in his responses to Madison’s concern about the Constitution. Commentaries was the preeminent articulation of English law. It could not be ignored. Otis clearly needed to contend with the emergence of this authoritative compendium of the law and legal structures, and he quoted Commentaries in Vindication in order to assure his readers that the new work was read and understood; those readers would include many in Parliament and Whitehall.
Blackstone’s austere summation of the consequences of challenging Parliament’s power is unquestionably at least partly in response to Otis’s pamphlets, which were typically promptly shipped to England and widely distributed. Blackstone responded to some of Otis’s arguments thus:
And, because several of the colonies had claimed a sole and exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c. 12 expressly declares, that all his majesty’s colonies and plantations in America have been, are, and of right ought to be, subordinate to and dependent upon the imperial crown and parliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever. And this authority has been since very forcibly exemplified, and carried into act, by the statute 7 Geo. III. c. 59, for suspending the legislation of New York; and by several subsequent statutes.
His response left no room for uncertainty or inquiry. And regarding Otis’s argument about the source of rights, Blackstone declared:
Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulations, not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation.
Rights are given to the governments through their charters; the position was a direct refutation of Otis’s argument that charters were inconsequential because basic rights were innate in the people, not granted by a charter. And as the Parliament is without peer, the king is infallible:
That the King can do no wrong, is a necessary and fundamental principle of the English constitution. … The king is not only incapable of doing wrong, but even of thinking wrong: in him there is no folly or weakness.
Blackstone’s and the establishment’s unequivocal position was that as long as the colonies were bound to England, Parliament was the supreme power. Otis agreed, thus making the choices implicitly clear: obedience or rebellion. Otis had begun his earlier pamphlet The Rights of the British Colonies with an epigraph from Virgil’s Aeneid: “let us draw up a treaty fair to / Both sides, and invite them to partner us in the kingdom.” Commentaries exclaimed the establishment’s position that there would be no partnership, only feudal subjugation. Blackstone even pointedly rebutted Otis’s use of Lord Coke and Dr. Bonham’s Case in Rights; Otis asserted that, as Coke did, courts could rule laws unconstitutional, and such judicial review was necessary to moderate the power of the legislative branch. Blackstone utterly rejected the notion of judicial review: parliamentary decisions were final and unreviewable.
Many rebels such as Jemmy Otis in the north and Thomas Jefferson in the south learned the law by reading the works of the early 17th century English judge and lawyer Edward Coke, particularly Coke’s commentary on the 16th century judge Thomas Littleton’s work. Coke was an outspoken critic of the king and, when summoned to appear before James I in 1616, told the king to his face that the law and parliament limited the king’s power. Coke lost his position as Chief Justice. In Parliament, Coke contributed to The Petition of Right, a proto-declaration of independence for the parliament arguing for taxation by consent, against unlawful searches and seizures, and requesting standard enforcement of property rights and due process. With Coke in the lead, Parliament forced a king desperate for revenue into submitting to the Petition of Right. It is not curious why the rebels would denounce Blackstone and defend Coke. Coke was everything Blackstone was not; Coke, too, was a rebel.
In contrast, Blackstone thought it appropriate to restrict voting to property owners and declared the colonies “subject … to the control of the parliament.” And regarding the colonists scrutinizing their legal relationship to England, Blackstone made clear the opinion of the establishment: “It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them.” Though Commentaries supported many of Otis’s and the colonists’ positions, including individual rights, a prohibition on taxation without consent, and the importance of jury trials, Blackstone represented nothing more than the long-established demand – or threat – that the colonies acquiesce to the absolute authority of Parliament. Blackstone was treated as Moses descending from the mountain, and Coke was Baal, once god now false idol.
At first, Vindication seemed to be a political catastrophe. Though wounded by Jemmy’s pamphl
et, Martin Howard pounced on the “Boston writer” for his apparent abdication of his previous views of rights and power in A Defence of the Letter from a Gentleman at Halifax to his Friend in Rhode-Island published just a month later. Howard took a few more shots at hapless Rhode Island ex-governor Hopkins, bashed the Boston Gazette and Oxenbridge Thacher for their unhelpful and belligerent comments, and then focused on his main target. Howard labeled Vindication “a dreary waste of 32 pages” and accused Jemmy Otis of being one of the “false brethren” who would sooner abandon Hopkins and the clamor for rights than forgo “a single ray of his superior discernment.” Howard quoted the Otis section on “right, power, and authority” and then called out his hypocrisy: “Here he will certainly appear, in the opinion of his associates and adherents, to have surrendered up all at discretion, and betrayed his whole party.” Strong words, indeed. Surely Thomas Cushing and other Popular Party leaders wondered too if Vindication amounted to betrayal. Howard further asserted that Vindication “contains a most unreserved and solemn recognition of the absolute, unlimited authority of parliament over the colonies. The warmth of the expression, and the care taken to shun all ambiguity, indicates the zeal of a convert.” Unlike Hutchinson and at times Bernard, Howard did not realize that Jemmy was capable of, in Bernard’s words, “designing to counterwork his colleagues.” Howard even went so far as to observe that The Rights of the British Colonies was generally condemned “at home” and sarcastically absolved and applauded Jemmy “on the happy conviction of his errors.” It’s doubtless that Blackstone’s Commentaries was part of the condemnation Howard referenced.
Otis wished to make manifest the choice now before the colonies: total submission to Parliamentary authority or resistance on threat of death; Otis also wished to make known to Whitehall that he wouldn’t commit – at least publically – any of Blackstone’s 160 crimes that resulted in “instant death,” though he did insist that the people have a right to depose a ruler who attempted to establish a “tyranny” or “enslave” the citizenry, even in the face of Blackstone’s claim that the king is infallible. But the skirmish between Otis and Howard spawned chaos among the Popular Party faithful. On April 22, 1765, the Boston Evening-Post printed a letter from “Veritas” that harshly criticized the useless spectacle that was the Honourable Artillery Company parade, and the following week a Gazette article labeled the “Veritas” letter a “Grubstreet Piece” whose author would better be identified as “Virulentus.” The Evening-Post was not Jemmy’s paper, and the “Veritas” piece was clearly not his work, but even Jemmy’s own Gazette seemed unsure of whose position he supported. Everyone was tense and, more importantly, no one could locate Jemmy Otis’s allegiance. Just two weeks later, on May 6, 1765, the Gazette advertised another Jemmy Otis pamphlet, Brief Remarks on the Defence of the Halifax Libel on the British-American Colonies, and mocked their most prolific author and ardent supporter by claiming that Otis “will be busy some Time in drawing a Piece he intends to call T’other Side of the Question, another to be called Both Sides of the Question. … After these he hopes to be free from all public Concerns, and political Connections, and at full Liberty to begin a new System.” Edes and Gill undoubtedly questioned Otis’s bewildering motives.
Prior to the publication of Brief Remarks in May, the colonists received a new pamphlet: The Regulations Lately Made Concerning the Colonies and the Taxes Imposed upon Them, Considered. The pamphlet itself isn’t as remarkable as the assumption that is had been composed by none other than the First Lord of the Treasury, George Grenville. If Blackstone’s Commentaries wasn’t warning enough, Whitehall issued a direct admonition to the colonial rebels. Though the actual author was Grenville’s secretary, the leviathan Thomas Whately, it was a sign that the ministry read and disapproved of Otis’s pamphlets. In Vindication, Otis conceded that the colonies were represented in the “transcendant” Parliament yet forcefully rejected that they were represented in the House of Commons. The ministry disagreed, asserting that the colonists were as represented in the House of Commons as were the residents of Birmingham and Guernsey.
And so in Brief Remarks, Jemmy labeled the author – perhaps the Prime Minister – of Regulations “very ingenious, learned, polite and delicate,” despite having previously mocked Pownall’s Administration of the Colonies. And Jemmy concluded about Regulations that he had “the honor also to agree … that the colonists are virtually, constitutionally, in law and in equity to be considered as represented in the honourable house of commons.” But he was not satisfied with simply contradicting his previous assertion about representation. In Rights of the British Colonies, Otis had made an issue of the right to “give his sentiments to the public, of the utility or inutility of any act whatsoever, even after it is passed, as well as while it is pending.” But since, Blackstone had cautioned that the colonists should “obey the laws when made, without scrutinizing too nicely into the reasons of making them.” Jemmy confirmed that he’d heard the warning: “Nor shall I presume to say a single word on the expediency and public utility of this measure [the impending Stamp Act], after the administration have so long had it in contemplation. I humbly, dutifully, and loyally presume, … that the supreme legislative of Great-Britain do, and must know infinitely better what they are about and intend, than any without doors.” Whitehall, perhaps at the urging of the Boston oligarchy or at the King’s direction, had entered the paper war and declared it over. In the short-term, is seemed that incendiary pamphlets would more likely risk one’s life than yield political progress.
But Jemmy would have one last shot, and Brief Remarks is more invective and intimidation than philosophy. Howard’s Newport faction is described as a “little, dirty, drinking, drabbing, contaminated knot of thieves, beggars, transports, or the worthy descendents of such, collected from the four winds of the earth, and made up of Turks, Jews and other infidels with a few renegade Christians & Catholics.” Newport specifically and Rhode Island in general were notorious for pervasive lechery and lawlessness, so doubtless this description was more accurate than not; further, it would not have been shocking to hear their cantankerous governor utter such words – but they were beneath a well-born, well-bred Harvard lawyer to put in print. Jemmy further diagnosed Howard with having “the conscience of a highwayman, the heart of an assassin and the impudence of a billingsgate [worker in the seedy London fish market].”
The “counterwork” in Brief Remarks operated quickly, moving from riling the mobs to soothing the oligarchy in just a few lines. After the “contaminated knot of thieves,” Jemmy pleads, “If there is any thing offensive in either pamphlet, I am heartily sorry, and am well assured the author never intended any such thing, and has given me authority in his name, humbly to ask pardon for the least iota that may have displeased his superiors, humbly imploring … that they would candidly impute any slip the “agony of heart, rather than to the pravity of his will.” The operation of a “counterwork” need not suffice as the only explanation. If strung together, comments about Jemmy from others are enlightening:
John Adams: “extremely quick and elastic. His apprehension is as quick as his temper - He springs, and twitches his Muscles about in Thinking.”
Governor Bernard: “ …the head of the Confederacy. If you are acquainted with the natural Violence of his temper …”
Peter Oliver: “…genius.”
Brief Remarks displayed not only a “counterwork” to assure all factions that he was on their side – a ploy he’d used since the Writs of Assistance case four years earlier – but also exhibited his true nature. And yet the indelicacy of Brief Remarks provides one of the most direct clues for answering the question of Jemmy’s elusive connection to the mobs. Cushing may have thought Brief Remarks was beneath a man of Otis’s stature; Hutchinson surely would have found it extremely distasteful; but the men of the Boston mobs would have concluded that Jemmy was – at least on paper – a brawler. Given what happens later in the year, it cannot be discounted that the mob men �
� dock workers, tanners, carpenters – would gather in taverns, share a few drinks, and howl in delight at Jemmy’s mudslinging. They would have written no differently – if they were into writing articles. If Whitehall were to quiet the paper war, then Jemmy would remove himself from the print shops and relocate to the taverns, and the rebellion would follow.
The Rights of the British Colonies, Vindication, and Brief Remarks offer no single philosophy; attempting to extract a comprehensive political position would only result in confusion and contradiction. They cannot be understood apart from the circumstances that enveloped them, both before, during, and after. The ministry had issued two firm rebukes, and Otis’s political enemies judged Otis’s opinions to be treasonous and seditious, and he probably regarded these warnings with some seriousness. Howard had directly referenced the trouble Jemmy would be in with the ministry if he persisted. Further, it was clear that progress would require more than political pamphlets. In Brief Remarks Otis is almost desperate to learn the source of information and the identity of various pamphlets authors’s – he wanted to gauge the degree to which he should fear for his safety. Otis most likely believed Regulations was a direct warning from the ministry, and whether the author was Grenville or Whately, it was likely causing him to wonder whether the accusations of treason and sedition were more than political smears. Did Jemmy entertain the thought that Whitehall was preparing charges of treason? Did Jemmy’s many Tory friends and relatives advise him that such a danger was possible? Jemmy Otis was widely considered in both the provinces and England to be the colonies’ most radical thinker and politician. He likely assumed that he could be one of Grenville’s targets. But a man seriously concerned about offending those in power would not have proceeded the way Otis did. And if he were insane, he likely would not have had the mental capacity to do what he did next. The most likely explanation is that Otis was intentionally easing his enemies’s apprehensions, coaxing them to let down their defenses, so that he could implement the answer to that ultimate question: What action can the colonies take if Parliament chooses to ignore their rights?