by Nathan Allen
While Thomas Hutchinson was ousted from the Governor’s Council, he still sat as Chief Justice of the Superior Court. Dan Malcolm’s case illustrates that the mob roaming the streets of Boston actively promoted Jemmy’s customs causes and supported his argument against external taxes. Just a few years prior, many had argued that Parliament could levy external taxes – customs taxes – but not internal taxes such as sales taxes. But now, in flaunting the customs taxes, the rebels made it clear that they wanted all taxes originating from their local representatives. Jemmy Otis, the de facto representative of the anti-customs movement, unloaded another aggressive court room argument against the constitutionality of general search warrants, an argument that was vindicated when William de Grey, the Attorney General of Great Britain, voided their issuance the following month. The general search warrant was dead, and the customs establishment had been crippled. The Townshend Acts of 1767, of which the Revenue Act was one, would revisit and attempt to revive the general search warrant, which was so clearly required for any possibility of effectively implementing customs taxes. The Acts expressly directed the superior courts of the American colonies to issue general search warrants and the new Board of Customs Commissioners on how to acquire and employ such warrants.
The political issue that kept boiling to the surface after the May 1766 elections was reimbursement of those whose property was destroyed in the August 1765 riots. The Council and governor continued to press the House on the issue. Many General Court members from the country rejected reimbursement because they viewed it as a Boston problem. Many Popular Party members rejected it because they did not wish to set a precedent, which made it clear to all that they thought that the August riots may not be the last. By December 1766, the Popular Party got the bill they wanted: province-wide payment for reimbursement and amnesty for all suspected rioters, probably all of whom were Popular Party members. The bill passed the House 53-35, with many Court Party members voting against it. Otis led a committee to draft and present a resolution to Bernard making clear that the reimbursement was a result of their “loyal and grateful regard to his Majesty’s most mild and gracious recommendation” and not because they felt legally compelled because the “suffers had no just claim or demand on the province.” Again, they wanted to ensure that the reimbursement was not perceived to set a precedent. Back in London, the Privy Council was peeved by the amnesty portion of the bill and disallowed it, but disbursements had already been paid by Bernard from the treasury, so the House could do nothing in response.
Concurrent with the reimbursement battle, Otis sought to further purge the government of conflicts of interest. Thought Hutchinson had lost his Council seat, he still attended Council meetings in his capacity as lieutenant governor, and thus Hutchinson directly influenced all three branches of government. The governor had a seat on the Council and could send a deputy in his stead, but Otis asserted that the executive branch occupying more than one Council seat abrogated the separation of powers and the House’s message to Bernard declared the situation an “impropriety” that was “repugnant to the constitution.” The House and the Council passed a resolution forbidding Hutchinson from occupying a Council seat while Bernard was present, and Hutchinson, knowing he was defeated, let Bernard know that he would further refrain from attending Council sessions. Bernard, however, was not one to know when he was defeated. He dispatched a letter to Secretary of State Shelburne requesting clarification. Shelburne wanted no part of the matter and informed Bernard that the Council should determine its own rules. The Council had already declared Hutchinson persona non grata, and Hutchinson had concurred, so Bernard was left to stew in another defeat.
Indicating the coordination between political veteran and young firebrand, the Colonel advised Jemmy in a January 24, 1767 letter to “keep exactly to Last Year’s Plan & Choose the same Councillors yt was last year Chosen unless there was a fair Chance to Drop a few of the Torrey Part.” The Colonel was willing, though likely begrudgingly, to forgo his Council seat in order to advance the Popular Party’s escalating grip on power. The Colonel’s other bit of advice in the same letter was that Jemmy and the Popular Party should “keep to strick Truths” in their campaigns because “there is enough of them” to win elections. The issues favored the Popular Party, and the Colonel strongly recommended that its campaigning and electioneering “be so Canvassed that they may Bear a Thorough Examination.” The Court Party spent much of 1766 and early 1767 promising patronage in return for votes: small rural positions, officer ranks in the militias, whatever someone in the House desired in exchange for loyalty to the government. Court Party member John Cushing complained to Hutchinson in a December 1766 letter that the governor was “Gitting into office Scandalous & unfit persons & Throwing abt Commissions & promising almost Everybody.” The Gazette followed up the charge on April 27, 1767, declaring that Bernard “is at his old Trade of rubbing up old Tools, and making new ones against the ensuing Election” and charging that commissions “are shamefully prostituted to obtain as many that shall be subservient to his Designs.” The Court Party also resorted to outright threats, sending an anonymous letter to Jemmy in February that read in part, “if your Assembly will suffer themselves to be led by that absur’d ignorant Firebrand, he may bring them into a worse scrape than they can imagine.” On February 27, the House formally declared the anonymous writer “an Enemy to this Province,” effectively passing their own charge of treason. Collectively, Court Party members believed that the fire raging in the Province would burn out, some men would come to their senses and others could be bought, and that normalcy would return by the May 1767 elections.
They were wrong about the May 1767 elections. Jemmy increased his vote totals from 86% in 1766 to 93%. Sam Adams was re-elected with 90% of the votes cast, and John Hancock was re-elected with 100%. The wave of optimism that the Court Party rode into the election was not quickly realized to be fantasy, for on June 15, 1767, the Evening Post held a wake for Jemmy:
Epitaph for Jemmy
A Life of slander, scrawl and quarrel past,
Here JEMMY hides his envious head at last.
Beneath the pressing Turf the Troubler’s laid,
While fern and brambles rise, a junto shade!
His restless Spirit fled, close here we’ll pin him;
Unless he’d quiet now—the DEVIL’S in him!
“The King of Massachusetts Bay” and the Popular Party quickly exerted their control, again electing the same six Councilors that the previous year had been vetoed by Bernard. They went further and rejected one of Bernard’s more moderate friends, Israel Williams. Bernard again vetoed all but one, permitting moderate Popular Party member Nathaniel Sparhawk to take a Council seat. Bernard felt compelled to explain to the Council that he vetoed the powerful and seemingly moderate Colonel because “the Father’s Principles and the son’s were both a Like But the father was not so open.” Writing to Jemmy on June 12, 1767, the Colonel mocked Bernard for now becoming “a Searcher of Hearts,” regardless of one’s actual behavior and voting record. But the Colonel comforted Jemmy that he was “Perfectly Easy” to follow his conscience instead of his political ambition. The Colonel now seemed converted to the cause.
Writing to Jackson on June 30, 1767, Bernard asserted that Jemmy’s “reign” was over. He had been wrong about the 1767 election and would be again about the 1768 and 1769 elections. Thomas Hutchinson would never again be elected to the Governor’s Council. The governor’s friends were so repeatedly rejected that by 1769 only 16 of the 28 Council seats were filled, and the Council was nothing more than a weak group of government puppets. From 1766 until the Revolution, the Popular Party consistently controlled at least two-thirds of the House. The 1766 elections proved not to be an aberration. The wedge that Otis had driven through the oligarchy beginning with the Mount Desert Island grant was taking full effect; Bernard blamed Hutchinson, and Hutchinson blamed Bernard. Bernard was inept but not hated; Hutchinson was hated but effective. As th
ey grew to mistrust and despise each other, the Popular Party tied each to the other like political weights around their necks.
And in 1767, Parliament threatened to suspend the New York assembly because it refused to implement the Quartering Act. In an article in the Gazette, Otis again made the point that the issue was not about taxes or representation, but consent. Otis wrote that if “our legislative authority can be suspended whenever we refuse obedience to laws we never consented to, we may as well send home our representatives, and acknowledge ourselves slaves.” The 1,500 British soldiers who had arrived in New York City in 1766 were forced to stay on their ships, and when the New York assembly refused to comply, Parliament suspended the governor and legislature. On August 10, 1767, the Boston Gazette continued to print rumors that the ministry’s solution was to essentially remove the oligarchy from any control by local assemblies, including appointing Hutchinson and Andrew Oliver to custom board positions that would hold broad powers not subject to any local control and whose salaries would be paid directly from England. In the words of the Gazette, the oligarchs would then be “rendered independent of the people.” On August 17, the Gazette printed The Petition of Right of 1628, the Coke influenced 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. Coke was the rebel’s response to Blackstone’s orthodoxy. For a year, the Gazette had been issuing warnings about the ministry’s intentions to remove officials from the purview of local assemblies, particularly the authorization and administration of salaries, and the Gazette had been entirely correct. Such a move by the ministry would be a direct abrogation of the primacy of consent.
The issue of consent, regardless of whether the taxes were internal or external, exploded in late 1767 as Parliament attempted to implement the Revenue Act, a series of duties on imported items. Parliament believed that since the tax was external – on imported items only – it would be accepted by the colonists. But Otis had years earlier abolished the distinction between internal and external taxes, and the rebels were not interested in entertaining the new tax. And yet at a Boston town meeting on November 20, the day the Revenue Act went into effect, Jemmy made a shocking speech that, in reporting to the Secretary of State the next day, Bernard claimed was “entirely on the side of government. He asserted the king’s right to appoint officers of the customs, in what number and by what denominations he pleased.” Many at the time and later were baffled by Otis’s strategy, which operated on two levels. First, it was the continuation of the “counterwork” to ingratiate himself to the oligarchy; second, it operated to crystallize the issue of Parliamentary control for the colonists. The second level is made clear by a point Bernard claimed Jemmy made in that November 20 speech: opposition to acts of Parliament should be unified or not at all. By asserting that the government and king had the power and the right – under the law – to operate customs without the consent of the colonists, Jemmy was pushing for a more fundamental change. The entire structure of the empire was defective, and disparate acts of defiance would do little to ameliorate those structural problems. Burning effigies and derrière salutes would amount to no more than another Land Bank debacle; opposition would need to be both united and directed at the causes, not merely the effects. Jemmy’s November address also stressed that the mobs remain orderly; he knew that the push for rights and consent could easily devolve into anarchy. The Evening Post continued to mock Jemmy, publishing on November 30 an updated version of Jemmibulero entitled The Jemmiwilliad that ended with:
And may kind Heaven joint exit bring,
And their fond hopes, and ours fulfill;
Nor quit this life without full swing!
May Jemmy Split and Cooper Will!
The “williad” and “Cooper Will” are references to Boston’s rebellious town clerk William Cooper, brother to Jemmy’s Harvard classmate and member of the Black Regiment Samuel Cooper. Both were close friends of Jemmy’s, and Will Cooper was so beloved that he held his position of town clerk for 49 years. The Jemmiwilliad was followed by the considerably more malevolent Jemmyicumjunto, published on January 11, 1768, which continued the oligarchy’s assertion that a mad junto had taken control of Boston and was precipitating its ruin. Jemmyicumjunto was a direct attack on the Popular Party’s and Jemmy’s efforts to coordinate the merchants in boycotting taxed imports and to encourage an increase in domestic manufacturing. While the Court Party was mocking the House’s embargo and manufacturing Resolves, merchants in England were taking them quite seriously. The merchants were suffering from the end of the Seven Years War and various other small embargoes and were ever anxious that a serious colonial embargo would severely impede their sluggish economic recovery. Lord Shelburne questioned Boston merchant Nathaniel Rogers while Rogers was visiting London, and Rogers reported back to Hutchinson that the Resolves had caused “great umbrage” in London and that Shelburne was concerned about whether the Resolves would be widely implemented. In volume 17 (1767) of London’s Gentlemen’s Magazine, an article complained that any embargo and manufacturing resolutions would forestall an economic recovery because “some vain pernicious ideas of independent and separate dominion, thrown out and fomented by designing spirits in that country.” The article concluded by urging Parliament to declare embargoes illegal.
The ministry was devising its own plans for removing the oligarchy from control of the people. Thomas Pownall wrote to Thomas Hutchinson on September 9, 1767 “that you shall have a handsome salary fixed as Chief Justice, as soon as the American revenue shall create a fund.” The revenue would be derived from the Revenue Act. The plans, though, were known to the rebels, and they widely publicized them in order to repeatedly defeat Hutchinson’s appointment to the Governor’s Council and to discredit the Ministry’s plans for removing control of local officials’s salaries from the legislature. Lord Hillsborough was appointed first Secretary of State for the Colonies, a new office replacing the Board of Trade that coincided with the newly created Board of Customs Commissioners. In explaining his repeated defeats, Bernard wrote to Lord Hillsborough:
… two chief heads of the faction (Otis and Adams) told the House that the Lieutenant Governor was a pensioner of Great Britain, and averred that he had a warrant from the Lords of the Treasury for two hundred pounds a year out of the new duties which they were then opposing. This being urged in a manner which left no opportunity or time for refutation or explanation, gave a turn against him, so that, upon the second polling, he had ten votes less than before.
The pressure on the oligarchy was increasing, and despite Bernard’s enduring optimism that the rebels’s progress would soon flag and fade away, their rejection of Hutchinson seemed to be gaining support. Perhaps more disconcerting, Otis and the Boston rebels were gaining widespread support and sympathy, not only from other colonies but also from England. Catharine Macaulay, whose progressive views on women and British history were scandalous in her home country, sent Jemmy, who she titled “the great Guardian of American Liberty,” a copy of her radical history of Britain. She signs her letter to Jemmy: “with high admiration for your Virtues.” From within Parliament and without, Otis was increasingly viewed as the champion of the people’s rights.
Most of the new members of the customs establishment arrived on a ship from England on November 5, 1767. Henry Hulton, the first commissioner of customs, had been a clerk in the Plantation Office in London for the previous five years; Hulton’s sister recounted that when the customs officials arrived, a “mob carried twenty devils, popes, and pretenders through the streets, with labels on their breasts, Liberty, and property and no commissioners.” Like a good oligarch, Hulton reportedly “laughed at ‘em with the rest.” November 5 was “Pope’s Day,” wherein the Protestants celebrated the fact that they weren’t Catholic, but the festivities’s overt politicization was an indication that “the times were altered.” The popes and pretenders would be he
aved into a giant bon fire; the devil was left on the doorstep of Hutchinson’s house. It would take Hulton three years to learn just how altered the times were.
Bernard delayed convening the General Court until late December, hoping to avoid any hostile resolutions to the new customs commissioners and the Townshend Acts. When the Townshend Acts went into effect and the new commissioners arrived in early November, Jemmy urged caution, and the Boston town meeting approved his message and adopted a resolution denouncing mob activity. When the General Court finally convened, it appointed a large committee to draft letters and petitions to various officials on the state of the province. The letter were polite – praising the King and constitution – but insistent that all taxation must originate with the local legislature. They further rejected accusations that they sought independence and would “by no means be inclined to accept of an independency, if offered ….” And yet the flurry of conciliatory letters and the petitions produced by the House at the end of the year only seemed to be setting the stage for a greater drama to come.