by Nathan Allen
Instead of venturing into the world, young Jemmy Otis returned to Barnstable, probably at his father’s suggestion; one of Jemmy’s final letters home before commencement was dated June 11, 1743 and contained a brief reference to this plan:
If you can possibly Spare me Some money for to buy me some Books if it is but ten Pounds-worth for if I live at home next year in order to follow my Studies I had as goode pretend to Run with my legs tyed as to make any Progress with what Books I have.
So the house on the Great Marshes became the place where Otis immersed himself in Enlightenment thought. The conditions must have been less than ideal, even if the “Honoured Sir” left him alone, for there was now a four year old sister, Elizabeth, the three year old Samuel Allyne, and two babies born who died shortly after birth. No reading list exists, but from his later writings it is evident that Jemmy acquired a thorough knowledge with not only the classic authors but also with the best literature of the preceding century. Quotations from most of the major political philosophers from the previous 100 years – Coke, Milton, Sydney, Locke, Filmer, Pope, and Harrington – would flow from his agitated pen in searing profusion, and his quotations were not decorative as were some of his contemporaries’s references. He was an insatiable reader all his life, but his “Studies” during his stay in Barnstable in 1743-1744 likely laid firm groundwork upon which his continuing education would be built. It was a fertile yet frustrating time for an introduction to public law and moral philosophy. The age of Hobbes, Grotius, Pufendorf, and Locke was in its twilight by 1743, but the inquiries and challenges presented by the later English writers of the Enlightenment such as Addison, Steele, Swift, Trenchard, Bolingbroke, Hume, and Gordon introduced Jemmy to an expansive assortment of ideas and critical techniques. He read them all, and in John Locke he found many compelling theories. Locke’s vague views on sovereignty, ideas of reasonable representation, and his enigmatic concept of the ultimate “appeal to Heaven” were to be oft repeated by Otis. Montesquieu was yet to come with his ammunition against the ruling oligarchy of Massachusetts Bay, but by the time Otis had taken up the formal study of law he was thoroughly grounded in the concept of natural rights.
While Jemmy was buried in books, his father was continuing his ascension to political and social supremacy. At a town meeting in 1744, Barnstable residents elected him as selectman, a distinct promotion from his earlier positions as hogreeve and town treasurer. A genuine opportunity presented itself the following year when his neighbors elected him as their representative to the General Court. His predecessor was Deacon Robert Davis, a respected cooper, and later a captain of one of the Barnstable-Boston packet boats. The reason for the change is not clear, but in view of the long and frequent sessions of the General Court, Deacon Davis may have decided that he could not afford to neglect his business. The 1740s and 1750s was a period of gradual shift from part-time delegates to something resembling professional politicians, a change not only significant for Barnstable but also for the Otis family. Davis was apparently a good deacon, a good cooper, and well liked, but in Boston he was insignificant. During his final one-year term as representative, Deacon Davis served on only one committee and that for an unimportant issue. In abrupt contrast, James Otis, Sr. served on twenty committees during his first term, some of them significant, and three of them chaired by Otis. During this period the House of Representatives consisted of only one standing committee, the Committee of War, and all ordinary business was conducted by temporary committees appointed by the Speaker, Thomas Cushing. The Journal of the House did not record debates and only rarely recorded votes, but an analysis of committee service provides an indication of the relative importance and competence of House members. An ambitious representative need not heed customs of seniority and could immediately demonstrate his determination. Such a man was James Otis, but he also benefited from current events; Otis arrived in Boston shortly after news of the capture of Louisbourg did, and though the victory was much celebrated, it had severely strained the resources of Massachusetts Bay. Fortunately Governor William Shirley was a man of both political sagacity and common sense, qualities in short supply in colonial governors.
Between Jemmy’s graduation in 1743 and his father’s election to the General Court in 1745, King George’s War broke out. The war had its origin when a British sailor named Jenkin’s lost his ear to a Spanish knife; King George, not known for his temperance, declared war on Spain. A few years later the French joined the fray and the War of Jenkin’s Ear was renamed the War of Austrian Succession, and nearly every European power was fighting someone, somewhere. Most of the conflict was contained to Europe and the Caribbean until, for whatever reason, the French fort at Louisbourg in Nova Scotia decided to attack English towns in Nova Scotia. The attacks were largely unsuccessful as the French Louisbourg troops couldn’t seem to coordinate and execute plans with much order, but Massachusetts Bay responded to pleas of assistance from British towns in Nova Scotia with enthusiasm, sending a large supply of troops, equipment, and ships. Not satisfied with merely defending English towns, the Massachusetts troops promptly attacked and seized French Louisbourg. The Massachusetts forces in Nova Scotia were significant enough that the French wouldn’t bother them again, but the French troops in Canada did engage in several substantial raids in the Albany area in coordination with their Amer-Indian allies, leaving most of the English towns north of Albany abandoned. For Massachusetts, the taking of Louisbourg was a monumental feat at enormous expense; the conflict cost the province about 10% of its adult male population. A peace treaty was signed in 1748, and Whitehall returned Louisbourg to the French in exchange for Madras, India, which the French had captured in 1746. For the people of Massachusetts province, the battle of Louisbourg was a vital episode in the maturation of the colony; they proved to themselves and others that the province could act as a unified force, could project power, and could defend its territory. But the return of Louisbourg for Madras made the Massachusetts colonists unsure of the mother country’s loyalty.
James Otis, Sr. also drew assignments to assist in the drafting of proposed statutes, and this was, of course, an outgrowth of his recognized status as a successful country lawyer. “Country lawyer” described men who taught themselves law and who had learned to operate the fairly informal and manipulatable judicial machinery of the province by observation and practice. Unfettered by precedent and scholarship, country lawyers had gone far in liberalizing the framework of English common law. By 1740, however, country lawyers had risen above the low estate assigned to practitioners by the early colonists; ironically, the New Englanders, who in their eager attempt to escape the petty practice of law they had known in the country courts of England effectively denied any significant role to lawyers in the new world, had in effect created the very conditions that caused the increase of professionals who had been viewed as nuisances and parasites.
James Otis Sr.’s generation represented a transition from the legal limbo that preceded it to the innovative professional lawyers who matured in the 1760s and added an essential ingredient to the Revolution. The growing complexity of commercial and real estate transactions that marked the first half of the eighteenth century made a more efficient and responsive judicial system desirable, and the merchants began to consider the law’s technicalities to protect themselves. Importantly, commercial and real estate transactions were not only growing increasingly complex but were also becoming the central component in all economic activity; small farmers and traders were fueling the Massachusetts economy, not feudal estates and government monopolies. Hence, lawyers became the arbitrators, deal makers, and risk abators in this explosion of competition. Inevitably the most proficient and influential were employed by their friends and associates to represent them, and their increasing proficiency and influence began to be reflected in elevated professional standards at bench and bar. John Otis III, Jemmy’s grandfather, left behind a well worn copy of that seventeenth century bible of country practitioners, Dalton’
s Country Justice, which attests that he had played the part of transitional lawyer. He had no formal education in the law, and yet there were no formally educated lawyers in the area, so men such as John Otis III greased the wheels of the growing mercantile machinery with much-needed legal advice.
According to tradition, James Otis Sr. was in court to argue one of his own cases – most likely an issue of collecting an overdue bill – when a merchant neighbor requested his assistance and thus was launched his legal career. It’s very apparent that he was a successful lawyer, and the explanation for his success is equally clear. One of his friends who later became a formidable political opponent, Peter Oliver, explained it in far from flattering terms: “But as the People of the Province seem to be born with litigious Constitutions, so he had Shrewdness enough to take Advantage of the general Foible, & work’d himself into a Pettifogger; which Profession he practiced in, to the End of his Life. He had a certain Adroitness to captivate the Ear of Country Jurors, who were too commonly Drovers, Horse Jockies, & of other lower Classes in Life.” Though Peter Oliver labeled James Otis Sr. an ambulance chaser, it must be remembered that few lawyers were held in high regard at the time and a parvenu like Oliver would likely have described nearly all lawyers in similarly unfavorable terms. And yet Otis was widely regarded as a good lawyer, as one biographer wrote, “His arguments were strong, lucid and impressive; no man had greater influence on the jury than he had; he would accommodate himself to their understanding … and work himself into their affection as to gain an advantage of which no other man, among his contemporaries, could avail himself.” There is no date attached to the account of James Otis Sr.’s first case, but the records of the Superior Court show that he was sworn in as an attorney before that court in 1731 at the age of 29, and that his practice grew rapidly both in volume and geographical scope. It could be difficult to envision how Otis could handle both his legal and commercial business, but court sessions were acknowledged meeting grounds for the important men of a county. So Otis journeyed from Barnstable to Plymouth to Taunton to attend the quarterly sessions of the County Courts and the annual sessions of the Superior Court, and he carried a copy of the Province Laws and his writs in one saddlebag, and his detailed business accounts in the other. By 1740, Otis was a widely known and successful lawyer, leading John Adams to later comment that Otis was “the undisputed head of the bar in the three counties of Barnstable, Plymouth, and Bristol.” Sam Willis of Dartmouth wrote Otis a letter in 1741 begging the lawyer not to sue him; Sam White, a Harvard graduate and successful lawyer, insisted that Otis represent his client in Taunton – he would accept no other lawyer. By 1744, James Otis Sr. represented nearly half of all litigants in Barnstable Court and handled such a remarkable number of cases that his fees, including charges for “attendance,” amounted to as much as £1200 a year – more than the governor’s salary. It is little wonder that when he arrived in Boston as a member of the General Court in 1745, his network of acquaintances and his reputation as an energetic, tenacious lawyer helped him to quickly secure a leading position in the House.
In the 1730s and 1740s, the Massachusetts judicial system relied heavily on juries and even trivial two pound cases were tried with a jury in the County Inferior Courts of Common Pleas; further, the cost of litigation was so modest that the unsuccessful party frequently appealed to the Superior Court where the case was retried before another jury. In many cases a third and fourth jury trial was held under what were called “writs of review” or appeals. It was these aspects of the Massachusetts judicial system in the 1730s and 1740s that explain how an untrained though intelligent legal novice could rather quickly become a seasoned veteran. The ability to try a case three or four times helped a new lawyer learn the system, provided opportunities to correct mistakes, and, of course, increased his billable hours. In effect, the judicial system itself was designed to provide an education for nascent lawyers and to give a forum for small business owners to settle their differences; in both regards, the Massachusetts judicial system was quite the opposite of the English Inns of Court. These curious features were an expression of the Puritan ethos; the courts were quite accessible, not ostentatiously formal, and functioned on common sense. Further, such courts permitted the Puritans to progress toward their most cherished goal: independence. The southern colonies would often send their young men to England to train at the Inns of Court; the New Englanders would make their own lawyers.
And the New Englanders applied the concepts of accessibly and common sense to the developing Massachusetts judicial system in other ways. For example, the ability to retry and appeal cases multiple times was actually an improvement over the situation before 1692 when a final judgment was unheard of, and a law suit only died when those suing died, and sometimes not even then. London merchants complained to the Board of Trade that “they find more security and better and more speedy justice in the most distant provinces of the Ottoman Dominions from their Bashaws than they do in some of the American Colonies.” The courts were increasingly becoming efficient and effective tools of the growing middling merchants.
The only London trained lawyers with whom the elder Otis came in contact were Benjamin Lynde, the chief justice of the Superior Court, who administered the attorney’s oath to Otis, and Paul Dudley, also a justice of the Superior Court. Despite Massachusetts’s aversion to formal English legal training, the Bay Colony produced a few excellent courtroom lawyers in the 1730s, but they were uncommon, so the traders, joiners, and tavern keepers who acted as counsel retained a strong position in the operations of the local courts until the late 1750’s when the college trained men assumed undisputed command. By 1762, of the twenty-seven practicing lawyers named as barristers by the Superior Court, only three had not attended college: James Otis, Sr., James Hovey, and William Read.
Another interesting feature of eighteenth century court procedure in Massachusetts was the regular employment of referees or arbitrators. The courts worked rapidly, often disposing of twenty cases in a day and had little time to consider or patience for convoluted details. When a complex issue arose that required the evaluation of minutiae, a common procedure was to refer the matter to three referees, one chosen by each party and one chosen by the court. The referees would then informally convene with the parties and draft a report to the court that was generally approved. James Otis Sr. excelled in these informal arbitration sessions, which were often held in the local tavern.
Jemmy lived in Barnstable until the spring of 1745. He then packed his small library and trekked back to Boston, most likely accompanying his father who was to attend his first General Court session. In July, during an adjournment when his father had returned to Barnstable, young Jemmy wrote home that he had purchased six quarts of “Ruhm” and that “Claret Sugar and Ruhm” were “quite good cheap.” The disjointed, cramped handwriting of his college years was supplanted by an elegant and confident script. Three months subsequent he was embellishing his salutation with flourishes worthy of a royal charter when he reported at length about the return of Louisbourg hero Captain Rouse from England, where he had sailed to deliver the report of the victory, instead of on “good cheap” rum. The news of England’s reaction to that achievement was nearly as exciting to Boston as the news of the victorious campaign itself, and young Jemmy was basking in the derivative glory. The Louisbourg campaign was a baptism for New England as it seemed to prove that it was no longer the edge of civilization but rather a participant in world affairs, and the resulting sense of triumph, community pride, and global importance can find no clearer expression than in James Otis Jr.’s glowing letter. Even the reserved Thomas Hutchinson said the Louisbourg victory was “without parallel in all preceding American affairs.”
While awash in Louisbourg inspired ebullience, twenty-year-old Jemmy Otis began his formal legal education that summer of 1745. His father had arranged for an apprenticeship with a preeminent lawyer, and while it’s unlikely that Jemmy had much input in the decision, the prospe
ct of working with a brilliant Boston lawyer-scholar must have been appealing. The choice of Jeremiah Gridley was both natural and fortuitous; Gridley had the reputation of one of the finest lawyers in the province and professed a sophisticated scholarly and cultured philosophy of law and life that would have been engaging to the emerging intellectual. The agreement between James Otis, Sr. and Jemmy’s new mentor most likely resembled the one used by Gridley twenty years later when he undertook to train Daniel Oliver “liberally in Law” for the sum of £10 sterling annually for three years. Contemporaneously, the elder Otis had been engaged with Gridley and his business partner, oligarch Peter Oliver, in their project to construct an iron works and slitting mill to make iron bars, rods and nails in Plymouth County, and that contact may have laid the groundwork for Jemmy’s apprenticeship.
