by Nathan Allen
That same year, a 13-year-old George Washington was studying at a French school in the newly founded tiny village of Fredericksburg, Virginia. The school was led by Rev. James Marye and, it seems, the staff was entirely French, including Marye who had arrived from France in 1729. Marye’s school was decidedly old-fashioned and distinctly Continental. One of the students’s exercises was to copy a book with 110 “Rules of Civility.” The book traces its origin to Bienseance de la Conversation entre les Hommes (Good Manners of Conversation between People), a 16th century etiquette book used at the College at Pont-à-Mousson. Washington’s transcribed copy of 1745 closely duplicates the 16th century book; the 110 lessons include:
26. In putting off your Hat to Persons of Distinction, as Noblemen, Justices, Churchmen, &c., make a Reverence, bowing more or less according to the Custom of the Better Bred, and Quality of the Persons Amongst your equals expect not always that they Should begin with you first, but to Pull off the Hat when there is no need is Affectation. In the Manner of Saluting and resaluting in words keep to the most usual custom.
29. When you meet with one of Greater Quality than yourself, Stop, and retire, especially if it be at a door or any straight place, to give way for him to Pass.
39. In writing or Speaking, give to every Person his due Title According to his Degree & the Custom of the Place.
40. Strive not with your Superior in argument, but always Submit your Judgment to others with Modesty.
The “Rules of Civility” focuses not on relationships between the genders (save for the two rules mentioning “parents,” the female gender is not referenced at all) but rather on relationships between oneself and “Persons of Distinction, as Noblemen, Justices, Churchmen” and those “of Greater Quality than yourself.” The world of the Bienseance de la Conversation is filled with voluminous gradations of status, and receiving an education entailed, in large part, being able to discern a person’s status and to respond appropriately. While Otis received a progressive education at Harvard and began tutelage under Boston’s leading lawyer-scholar, Washington was receiving a traditional Continental gentlemen’s education, which focused on manners not metaphysics. It’s not the least bit surprising that the 16th century etiquette book Bienseance de la Conversation is traced to the College at Pont-à-Mousson, for Pont-à-Mousson is in northeastern France, just south of Luxembourg and in the heart of feudalism. The instruction Washington received in Fredericksburg was customary across Europe outside of the few progressive centers of education that had been stricken by the Enlightenment, and that his 1745 “Rules of Civility” is almost an exact copy of Bienseance de la Conversation illustrates how for most, little had changed from the late 16th to the mid 18th century.
Jemmy’s legal tutor, Jeremiah Gridley – usually called Jeremy – was far from an etiquette teacher. He had graduated from Harvard in 1725 and shortly thereafter held the position of “usher” at Boston’s South Grammar School. At the same time, he became a member in Monsieur Langloiserie’s worldly French club, recently begun by the Frenchman who would shortly thereafter teach French at Harvard for 18 months for being accused to espousing “unsound and dangerous doctrines” – which may allude to his latent Catholicism or, more likely, to his claims of having “Dreams and Visions.” In addition to the colorful company of Monsieur Langloiserie, Gridley entered the world of belles lettres in 1731 by editing and publishing the Weekly Rehearsal, a literary magazine. Two years later he gave up all of it, took a trip to England, and returned to teach himself law. By 1742 he was talented enough either as a politician or a lawyer to win election by the House of Representatives as attorney general. This office was not under the legal purview of the House despite long continued efforts to intimidate the governor on the point; so for Gridley, as it was to be later for James Otis Sr., it was a hollow victory. Gridley then accepted pupils including Benjamin Prat, the morose, one-legged, former Harvard librarian; Prat became Boston’s most financially successful lawyer and later chief justice of the Province of New York. After Prat, Gridley mentored Oxenbridge Thacher, whom John Adams considered “queer and affected,” and who probably absorbed Gridley’s legal lore along with Otis. Another of Gridley’s prominent apprentices was William Cushing, who was ultimately appointed third chief justice of the United States Supreme Court by George Washington. Apprenticeship under a practicing attorney may have been the most suitable introduction into the profession, but its value depended almost entirely on the moods and methods of the mentor. The potential for vast disparities in legal education is illustrated in the comparisons made by John Adams between his apprenticeship under James Putnam at Worcester, and the intellectual delight and inspiration he received from his studies with Gridley. Regarding his two years with Putnam, Adams wrote:
Now I feel the Dissadvantages of Putnams Insociability, and neglect of me. Had he given me now and then a few Hints concerning Practice, I should be able to judge better at this Hour than I can now. I have Reason to complain of him. But, it is my Destiny to dig Treasures with my own fingers.
A few years later, Adams commented on mentoring under Gridley:
We began the 13th Title of the feudal Law De Alienatione Feudi and read three Titles. Gridley proposed that we should mark all those Passages, which are adopted by the English Law, that when we come to read Ld. Coke we may recur back upon Occasion, to the originals of our Law.
Gridley was both an unparalleled legal scholar and an attentive mentor; those who learned under him considered themselves fortunate. The drudgery of being an apprentice of the law was the daily work as a clerk, with its continual copying of declarations and pleas. It is probable that Adams’s displeasure with Putnam arose from the nonstop copying Adams was required to do and from which he learned by rote the idiosyncrasies of pleading syntax, and yet his mentor lacked the time or the talent to explain the underlying legal basis for the declarations and pleas. Legal theory was Gridley’s specialty, a feature that oft materialized in Jemmy Otis’s later work, and Gridley thoroughly educated his apprentices – the revolutionary generation of lawyers – in an extensive range of legal thought.
The emergence of legal scholars such as Chief Justice Lynde, John Read, and finally Jeremy Gridley and his pupils, and the corresponding increase in the intricacy and quantity of commercial business transactions, had generated within a few decades a judicial system that was progressively modern. The justices of the Superior Court, though largely self-taught, were competent and committed lawyers, but they were forced to operate on two levels by obsolete procedures and litigious countrymen. The Inferior Court justices and lawyers ranged in abilities and ethics from petty scroungers reminiscent of the seventeenth-century County Courts of England rejected by the first settlers to barristers who could have performed admirably before the King’s Bench.
While the philosophers of Europe were increasing the precision with which they addressed eternal questions, the lawyers of New England were applying that same precision to the law. In December 1746, in response to his father’s request, Jemmy forwarded a form of declaration to be utilized in a defamation suit, a branch of law that was to become very familiar to Jemmy. “The following is a Declaration of Mr Prats Drawing,” he wrote, “which I believe you will like better than mine as it includes the words of Defamation for one ground of Action which Mr Prat has since informed me can be Proved.” It would have been expected for a country lawyer in the elder Otis’s situation to seek assistance in an atypical case from a son who had access to a large law library and a broad knowledge of modern legal forms. James Sr.’s request was also indicative of the transformation occurring in the practice of law in the province. A declaration such as the one supplied by Jemmy was the nucleus of a legal action, and, with the dawning of precise and sophisticated pleading, if it were written imperfectly in any essential feature, then the plaintiff’s attorney would find his writ abated and the case dismissed if the opposing attorney could demonstrate the fatal flaw to the court. The clever lawyers of the younger genera
tion eventually made for better law, but until the entirety of the bench and bar became more adroit in the use of pleading minutiae, the Massachusetts judicial system would remain a venue for imprecise law and occasionally ludicrous results. Books of pleading forms, or “Precedents,” were not only scarce but also limited in scope, and the practice of drawing, adapting, copying, and trading pleading forms grew widespread and essential. The objective of formal pleading was to condense an entire case to a single issue of fact or law. Typically, a well-pled case resulted in less time spent in court, but it required significantly more time in research and preparation, an impractical demand for lawyers like the senior Otis who practiced impromptu law from the saddle. Further complicating legal progress, litigants were reluctant to forfeit their full day in court, even in exchange for a better case. A formal argument over a legal technicality gave inadequate satisfaction to the litigious New Englander who wished to fully expose the perfidy of his adversary in the course of a courtroom drama; in an age with few of modernity’s vast entertainment options, some simply did not wish to forgo legal theater. In this period of flux we find Jemmy, Ben Prat, Oxenbridge Thacher, John Adams, and other legal novices copying and treasuring forms of formal declarations and pleas, perfecting pleading syntax, and analyzing minute concepts of theory. Jemmy’s generation was the catalyst for the transformation of colonial jurisprudence from John Winthrop’s utopian dream of a society without codes or lawyers to the rather sophisticated organization that materialized with the new nation after the Revolution. They were building the foundation for the excellent pleaders of Daniel Webster’s day, and at the same time compelling their elders to either adapt or retire. That access to the courts coincided with the increasing sophistication and precision of the law also created the legal system needed to handle the greater complexity of 18th and 19th century life, including the advent of the industrial revolution, increasingly intricate banking, and civil rights matters.
Jemmy took a break in legal studies for the Harvard commencement in 1746, when he and twenty-six of his classmates returned to Cambridge to receive their Master’s degrees. All the candidates were to deliver oral arguments on questions of their selection, and Otis’s argument was that an oath obtained by craft was not binding. The main event at this commencement was the presence of the heroes of Louisbourg, Admiral Sir Peter Warren and Sir William Pepperell, who were present to congratulate young Pepperell on earning his second degree. James Otis Sr. was now a Colonel in the Barnstable militia and was commonly called by his deferential title “Colonel.” He spent considerable time in Boston attending the General Court and could presumably consult personally with his talented lawyer son, so there are few letters between them from the late 1740s. The Colonel’s second oldest son, Joseph, was assisting in the operation of the Barnstable businesses, so the Colonel’s presence was required less often in Barnstable. Joseph was only 13 months younger that Jemmy, so they were quite close in age, and yet they couldn’t have been more different in personality. Jemmy and Joseph were both prepared for admission to Harvard by the same tutor, and while Jemmy clearly had the aptitude required for college work, Joseph just as clearly had no business attending college. His only academic virtue was legible handwriting, which in itself was a valuable trait but didn’t warrant a college education. And while Jemmy was somewhat short and pudgy – a man who clearly intimidated with his mind, not his body – Joseph was a bit brutish. Both Jemmy and his youngest brother, Samuel Allyne, would leave Barnstable for college and thereafter spend most of the remainder of their lives in the big city, Boston. In contrast, Joseph seemed to prefer to be a big fish in a small pond and lived his life in Barnstable. Not only did Jemmy and Samuel Allyne never return to live in Barnstable permanently, but they did not often visit. It’s clear that Joseph was very different from his brothers.
While Jemmy was beginning his legal career and the Colonel was climbing the ladder of Boston politics, Joseph was getting in trouble in Barnstable. Due to his good handwriting, Joseph spent much of the 1740s sending out demands for payment and other correspondence for his father’s businesses, and, of course, signing his father’s name since his own wasn’t of much value. It’s probable that Joseph caused a decent amount of minor trouble in Barnstable and occasionally major trouble. At the end of the decade, the Hinckley’s black nanny became pregnant and suspicion fell on the Hinckley’s son, Isaac Hinckley, Jr. Quick to deflect blame, Isaac accused Joseph of being the father. The Hinckleys brought the case to court. Depositions were taken. Joseph’s Aunt Russell, wife of the Otis’s pastor and tutor, asserted that the charge made no sense because “if Joseph Otis wanted a Negro they had one at home.” The Hinckleys replied that “There was a Difference between a Clean whore and a Durty one.” No one was defending Joseph Otis based on the idea that he simply wouldn’t engage in such activity. And Joseph’s defense seemed to entail admitting that he “had Carnal knowledge of the said Nannys Body” but asserting that many other men in town also had such carnal knowledge, which apparently was true as one, David Manning, came forth to personally confirm Joseph’s assertion. The court found in Joseph’s favor, as paternity couldn’t be proved. Joseph’s defense reveals the kind of reputation that Joseph had in Barnstable and the kind of behavior in which he engaged and which his brothers and father almost certainly found repugnant. The Colonel, with his immense resources, could have certainly made the case disappear, and yet the father permitted the case to proceed against his son and required his son to defend himself in court and on the record, knowing that his son may have been guilty.
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designed, by Nature, for a Genius
In the late 1740s Plymouth County reported a population of about 20,000 people, almost 2,000 living in the town of Plymouth. The town’s core structures – wharves, corn and flour mill, iron mill, blacksmith shop, meetinghouse – were located near the mouth of Town Brook as it emptied into the bay. In the center of Plymouth town stood the old “County House” that had been the seat of the Plymouth Colony government and after its absorption into the Province of Massachusetts Bay was used to accommodate town and county government offices, a courtroom, and a portico to shelter the marketplace. In 1749 it was razed, and a new “Town House” was constructed on the same site according to oligarch Peter Oliver’s design; Oliver was also one of Plymouth’s Inferior Court justices. Across the street was the home of the Warren family, then headed by Sheriff James Warren, Sr, and included his son James, the clerk of the court and future husband of Jemmy’s sister, Mercy. So the Town House, designed by the pompous aristocrat Peter Oliver sat across the street from the Warren house, where 15 years later the first organized plot to overthrow the government was hatched.
In the fall of 1747 Jemmy began his law practice in Plymouth town, most likely as a compromise with his father: Plymouth was neither the home of Barnstable nor the remoteness of Boston. In Plymouth, Jemmy could live in some freedom but still utilize significant family connections. While Barnstable was the center of the Colonel’s operations, Plymouth was the center of the four counties of Southern Massachusetts: Barnstable, Plymouth, Bristol, and Dukes. It would have been to the Colonel’s obvious advantage to have a trusted assistant in Plymouth. The Colonel could usually be present to argue cases, but there were clients to be interviewed, writs to be drawn, and, once the case was tried, writs of execution to be placed in the sheriff’s hands if one were successful or appeals to be prepared and appeal bond to file if one lost the case. Apart from the Colonel’s own interests, Plymouth County would have been more familiar to Jemmy than even Barnstable County, which incorporated all of Cape Cod; further, there were familial and mercantile connections on both his father’s and mother’s side that would be valuable. Fortuitously, Plymouth was understaffed in the quality and quantity of its lawyers for a town of its size and importance. Jemmy rented living quarters and office space in a house built and owned by Colonel John Winslow on the main street just a block from the Court House. In 1748, the local tax bill asses
sed the young lawyer at “20 £ personal estate and faculty,” and this rate was most likely volunteered by Otis so that he could vote in town elections and meet the criteria to act as a bondsman. So in this context, Jemmy arranged his table and chairs, unpacked his legal books, sharpened his quill pens, and awaited his first client.
The house in which Jemmy lived and worked faced the home of Lazarus LeBaron, Plymouth’s appropriately named physician and seemingly permanent town meeting moderator. Though Plymouth had only one room for its judicial functions and though the colonists had vastly improved and simplified England’s egregiously complex judicial structure, the County still played host to five separate judicial bodies. First there were the appointed justices of the peace who acted as individual magistrates over small civil cases and minor misdemeanors. A lawyer rarely would be involved at this level. The justices named to the quorum comprised the quarterly Court of General Sessions of the Peace. This Court functioned as the court of original jurisdiction over most crimes and as a Board of Supervisors, issuing licenses for taverns, managing building projects, and issuing warnings to the unruly and unwelcome. Another Plymouth County Court was Probate, presided over by a single appointed judge and a clerk. Operating in tandem with the Court of General Sessions was the Inferior Court of Common Pleas, the court of origination for most civil cases and the training court for novice lawyers. The court consisted of four justices, appointed by the governor with the advice and consent of the Governor’s Council, of which any three constituted the necessary quorum to hear a case; typically, colonial courts operated with multiple judges or justices hearing a case so that they were more similar to a tribunal than a modern court. These judgeship appointments were of considerable local cachet and were thus often the subject of passionate patronage mêlées. When Jemmy opened his law practice in Plymouth, the ubiquitous Peter Oliver, John Cushing, Thomas Clap, and Nicholas Sever commanded the four seats of the Inferior Court of Common Pleas. Judge Sever was the senior justice, a Harvard graduate and former minister, and somewhat infamous for his inability to suffer fools lightly. Judge Cushing was a member of an old Plymouth family that produced several lawyers and politicians; in February 1748, he was promoted to the Superior Court and continued his position on the Province Council. His seat on the Plymouth bench was assumed by Isaac Lathrop, Jr., the son of a former judge. Wealthy pompous Judge Oliver must have considered his position on the court to be temporary; a man with his superior assets demanded a superior position, and it was made so in 1756 when he was promoted to the Superior Court and ultimately to the Governor’s Council three year later.
