by Nathan Allen
The fourth and foremost court was the Superior Court of Judicature, Court of Assize and General Goal Delivery, generally referred to as the Superior Court. The governor and Council appointed four justices and a chief justice who served at the pleasure of their patrons. The court appointed two clerks, one of whom typically remained in Boston while the other accompanied the court on circuit. The circuit included the entire province with the exception of Dukes County (Martha’s Vineyard) and Nantucket cases, which were tried at Barnstable. The Court operated in each county at least once a year on a statutory schedule and had broad jurisdiction, original with serious crimes and cases in which the King was party, and appellate in cases originating in both the Courts of General Sessions and Common Pleas. Its probate jurisdiction was restricted to orders for the sale of real estate to satisfy a decedent’s debts; other probate appeals and actions for divorce were heard by the governor and Council.
In criminal and civil cases in which the King was a party, the appointed attorney general represented the crown, but the attorney general rarely could be bothered to travel outside of Boston, and one of the first acts of any session of the court on circuit was to appoint a local lawyer to serve as the King’s Attorney for the term. When Jemmy Otis first appeared before the Superior Court, it was made up of Chief Justice Paul Dudley, who had studied law at the Inns of Court, Richard Saltonstall, Stephen Sewall, Benjamin Lynde Jr., and John Cushing. John Overing was the attorney general.
Jemmy Otis’s first case was typical in many aspects, primarily because it brilliantly illustrates coordination between the legal and political spheres, between Jemmy and his father, and between practical “country lawyer” application and theoretical new-generation erudition. In these many ways, Russell v. Dillingham proved prologue to the drama that would occur later. It would be instructive to Jemmy and his generation in the power that a combination of the legislative and the increasingly respected legal worlds could produce. Further, it exhibited Jemmy’s remarkable elasticity and talent for research in examining mountains of legal theory and precedent in order to outmaneuver his opponents.
Jemmy’s client was “John Russell of Pembrook in the County of Plymouth husbandman,” and he must have knocked on Otis’s office door as soon as the young lawyer had his books unpacked. It is probable that Russell had tried other lawyers without success or that he was a Colonel Otis client who had been referred to the son; he seemed desperate and quickly sought Jemmy’s assistance. Russell’s grievance was that John Dillingham, also of Pembroke, had “for value received” provided Russell with a “note” promising to “pay and deliver” to him on demand a hundred fence rails and half a load of fence posts. Now Dillingham “though often requested” refused to fulfill his contractual obligation. Otis and Russell likely discussed fees, though there were statutory fees for the attorneys that were taxed as costs, and the winning lawyer could collect his fee from the losing party. In difficult cases, additional fee arrangements were often made. Otis first needed to make a decision as to which of the three available forms of action – covenant, debt, or assumpsit – would most likely produce the desired result. The promissory note was not under seal, so covenant was automatically excluded as a possibility. Since the amount of money claimed as damages was not “a sum certain,” debt would have been inappropriate. Assumpsit, so called from the Latin word in the earliest forms of the writ, was a variety of general writ of trespass. The original principle of assumpsit was intentional harm, but over the centuries it had come to include trespass writs covering unintentional and consequential injuries termed “trespass on the case.” Other varieties of the ancient writ included in “trespass on the case in assumpsit” that was applied to recover monetary damages for breach of contract, but this was oft ignored in the colonies and commonly replaced with the phrase “trespass on the case” to cover everything from suits on promissory notes and bills of exchange to the determination of real estate titles. Otis was in the fore of colonial legal practice when he chose to argue Russell’s action as trespass on the case. Instead of the present day practice of drafting and signing the complaint as a separate instrument, the colonial Massachusetts lawyer normally copied the declaration directly on the printed form. The “writ” thus was both the plaintiff’s declaration and a summons to the defendant to appear and defend, attested by the clerk and served by the sheriff. The writ may also include an attachment which directed the sheriff to seize property of the defendant or, in the absence of such property, to arrest the defendant until bail was posted.
Dillingham retained the Harvard educated yet hapless Daniel Lewis as his attorney. Lewis excelled at neither law nor politics and died insolvent, but even Lewis could see an obvious defect in Otis’s declaration: the suit was filed years after the statute of limitations had expired. The preamble of the relevant act, which became law in 1740, declaimed that “it is highly reasonable, and conduces much to the peace and welfare of the subject, that a certain and reasonable time should be set for the prosecuting of actions.” Dredging up thirty-year-old misdeeds had occurred in New England, but the law was progressing and the increasing complexity of merchant life demanded reasonable legal limitations. The Massachusetts statute, the language of which had been borrowed from the basic English act of 1623, declared that “all actions grounded upon any lending or contract” must be brought within four years. Lewis indicated the agreed fact that the demand note originated in 1730 and therefore the statutory period had long expired.
The case came up for trial in the March term of 1748, just after Jemmy turned 23. Lewis’s defense raised a pure point of law, but the court reserved any decision on the technical legal point and permitted the case to go to the jury, though likely with an instruction that the action should be voided due the statute of limitations. The jury delivered the predictable verdict for the defendant, and the court taxed costs of one pound and seventeen shillings against Otis’s client. In the Massachusetts tradition, Otis appealed, posted a twenty pound bond, and then the clerk assembled the writ, pleadings, bill of costs, and statement of the Inferior Court judgment and waited for the arrival of the Superior Court on its circuit. Many years beyond the statute of limitations, Russell v. Dillingham was quite clearly an unwinnable case. But a clever lawyer could manufacture opportunities when a case required, and reflecting his meticulous training under Gridley, Jemmy had painstakingly researched the issue of limitations. Unlike many lawyers of the 1740’s, Jemmy had obtained books of English statutes and legal reports. In comparing the Massachusetts statute of limitations to its English predecessor, Otis became convinced that the phrase “upon any lending or contract” in the province statute was not intended to apply to promissory notes or contracts for goods between traders or merchants, which were explicitly covered in the English act under a separate section that was not included in the Massachusetts act. Jemmy would argue that the legal result was that no limitation existed in Massachusetts on actions based upon such notes or contracts.
The Superior Court of Judicature arrived at Plymouth for its annual term in July 1748. Otis was ready to argue the point anew. To lend substance to his aggressiveness, he directed Sheriff Warren to attach a chair belonging to Dillingham. Dillingham was perhaps annoyed at losing a chair, so he returned to court with Benjamin Kent, a leading Boston lawyer. He argued again that the statute of limitations voided the case, and the Court affirmed the earlier judgment. However, Jemmy Otis was not only tenacious but seemingly immune to failure; losing only fueled his desire to outwit or outmaneuver his opponent. And so it was no coincidence that on January 6, 1749, the speaker of the House of Representatives Thomas Hutchinson abruptly appointed Colonel Otis as chairman of a committee to “prepare the Draft of a Bill for Explanation of the Act Intitled An Act for Limitation of Actions, etc.” And with speed rarely witnessed in legislative bodies, the Otis bill was made law just three weeks later. Its long preamble explained how the 1740 act had been intended as a replica of the English statute, and how “some courts of judicatur
e of this province” had expanded the scope of the act beyond its intended range, thus causing “great mischief and inconvenience in the trade of merchandize.” The new act permitted creditors who had been barred by the misinterpretation of the 1740 act to seek a new trial. Jemmy Otis had changed colonial law with his first case, but how did Jemmy’s legal discovery make it into law in record time, and in time to file an appeal?
At the exact moment Colonel Otis chose to introduce his “explanatory” bill that would allow his son to appeal and almost certainly win his first case, the House was intensely engaged in a critical debate on Massachusetts currency. Speaker Thomas Hutchinson was frantically attempting to cultivate the votes required to abolish the deflated bills of credit then constituting province currency and to refund the province war debt with silver coming from England as reimbursement payment for the Louisbourg campaign; of course, oligarchs such as Hutchinson would benefit most from such a bill. Colonel Otis, with his substantial following south of Boston, was key to accumulating enough votes to pass Hutchinson’s currency reform, and support for Otis’s bill would have been a small price to pay for his continued aid with the currency legislation. Additionally, Otis’s bill, which favored creditors, would have appealed to Hutchinson’s merchant constituency. There’s no paper trail to prove a connection, but it’s likely that Hutchinson rushed through Otis’s bill in return for support of the currency reform. The Colonel was a master of political manipulation and influence peddling, skills his son would later grudgingly learn so well he’d exceed the master.
But Otis’s client had given up. Otis wrote his father on January 3, 1750 from Plymouth telling him that he had not seen Russell, but requested that the Colonel procure the necessary writ from Chief Justice Paul Dudley. And in July the ten pound case – now raised to twenty-five pounds – was on the docket again. With the limitation problem out of the way, the case could be tried on the merits, but the court was in no mood to listen to a nearly 20-year-old argument about the value of fence posts, and promptly referred the case to an arbitration panel. No referees report appears either in the record or the court files, and it’s most likely that some amicable settlement was reached out of court. The 1740 statute of limitations was a perfect example of the confusion that resulted when legislators untrained in the law attempted to state in layman’s language an inherently technical legal concept. The case also demonstrates Jemmy’s doggedness and technical genius, and the Colonel’s role in the case cannot be disregarded. It was at about this same time that the Colonel’s 23-year-old son Joseph was being accused of impregnating the neighbor’s black nanny, and the Colonel made the decision to let the trial against his son go forward. The Colonel desperately wanted to support his children and would access any connection to do so, but he clearly had no tolerance for bad behavior. So while Jemmy was making legal history, his brother was being put through an experience that must have been humiliating. Despite Joseph’s legal problems, the Colonel still used his connections to help him. The Colonel’s significant political power secured for the Otis family the guardianship of the Mashpee Indians, which meant that the province provided funds via Otis to supply the Indians with necessities. Joseph would handle this work. The Colonel could also influence the assignment of liquor licenses, the appointment of justices of the peace, and the selection of other minor town officials. The Colonel’s brother Solomon continued to hold the position of town notary. In 1750, Joseph was appointed town collector of excise taxes. The Colonel held the town’s liquor license until 1753 when the license was transferred to Joseph. So despite Joseph’s troubles, he wasn’t excluded from his father’s benevolence.
The Russell v. Dillingham case provides insight into the cooperative endeavors of Colonel Otis and his son. They likely had divergent ideas about the law and its practice, but the practical advantages of cooperation seemed to keep such differences submerged. For example, in June of 1748, Colonel Otis, then in Boston, wrote his son in care of Mr. Williams in Taunton, granting executor powers of “Messrs Bowdoin” for Jemmy to use in a pending case and advising him to claim fees for travel, attendance, and sheriff’s charges; the Colonel also asked Jemmy to supervise one case and appear for him in others. Above all, Jemmy’s first case illustrates his absolute tenacity in pursuing a victory, his ability for deft and meticulous research, and his creativity in prevailing over the status quo. These skills were sharpened on fence posts but would be used to much greater effect a few years later, and again in silent cooperation with the Colonel.
In January 1750, Jemmy returned to Plymouth after a Barnstable visit, asked his father about the effect of the explanatory amendment to the statute of limitations and petulantly complained about printer Kneeland’s failure to send him copies of the “temporary Acts” and the second volume of the “perpetual Acts.” A few days later Joseph wrote his father from Barnstable concerning various mercantile affairs, and repeated Jemmy’s request for the law books. In excusing his brother’s failure to write often, Joseph noted that Jemmy “has taken so close to his studies that he scarcely allows himself time to eat drink or sleep.” Two months later a client wrote a long letter to Colonel Otis about a pending case, but directed that the letter be delivered “to his Son Mr James Otis” in the event the Colonel was not attending court. Despite these details, Jemmy was never an integrated part of the family’s interwoven political, legal, and mercantile affairs; of all the sons, Jemmy alone would almost entirely exclude himself from the mercantile aspects of the family empire. Initially, Jemmy stayed fairly close to his Plymouth base aside from an occasional appearance at the Barnstable courts and at the Taunton court in Bristol County where in May 1750 he was formally admitted to practice before the Superior Court, after taking the oath before Chief Justice Paul Dudley.
At the time, law partnerships were unknown in Massachusetts and though significant cases frequently employed multiple lawyers, there seems to have been no consistent pattern in those temporary associations. When Jemmy and his father would meet on circuit, primarily at the Superior Court terms at Plymouth, the clerk would often note that one party was represented by “Colo Otis & Son,” but with almost the same frequency, they would be on opposing sides of a case. These confrontations likely presented engaging theater for the local connoisseurs of court room drama with Jemmy’s oratorical brilliance and legal scholarship pitted against the charm of the Colonel with his country jurors.
The peculiar and legendary Samuel Veazie v. The Inhabitants of the Town of Duxborough is the first of such dramas of which there exists a record. John Adams complained that “litigious as Braintree” had become an insulting province proverb, and Veazie was a Braintree native from a family distinguished for its litigiousness even in that litigious town. After graduation from Harvard, Veazie became the minister of the Duxbury church despite the enduring reservations of a sizeable portion of the congregation. The “Great Awakening” of 1740 made him “morose, dogmatic and furious,” a change that annoyed many of his congregants. The Duxborough congregants grew weary of the Reverend’s Great Awakening attitude and wished to dismiss him, but Veazie was under contract. The disagreement was over whether Veazie had fulfilled the contract, and he had once hired attorney Ben Kent to attempt to compel the town to pay his salary; that case apparently never progressed beyond posturing.
So in the spring of 1748, Veazie engaged Plymouth County’s newest lawyer, James Otis, to file a law suit for the “morose” minister’s salary; Otis named the inhabitants of the town as defendants “of which Ezra Arnold, Gentleman and a Deputy Sheriff of the said County is one.” Otis was aiming to establish Arnold as a suitable agent of the town for the purpose of serving the suit. The declaration alleged that Veazie was employed as a minister of the town “upon their special instance and request, had preached and ministered unto them, the Defendants, the Gospel” from April to April, indicating the end of the town’s salary payments to its minister. Otis chose to sue for “as much as he should reasonably deserve,” which, the declaration conti
nued, was one hundred pounds per year. At the May 1748 trial, the parties agreed to turn the matter over to three referees, and Veazie chose Ezra Whitmarsh, the town chose the peculiarly named Wrestling Brewster, and the Court named Colonel Benjamin Lincoln (whose son, many years later, would marry Otis’s daughter). The agreement to use referees stipulated that Veazie would request, and the town would grant, the minister’s dismissal. But in submitting the request for dismissal, Veazie stipulated his reason as “the want of a Support and Mearly that Want Hereof,” which the town was disinclined to put on record. At this point the town hired attorney Timothy Ruggles, who was to suffer under the lash of Otis’s invective in the years ahead. At the sputtering case’s scheduled hearing in September, Ruggles offered a motion to dismiss the suit on the grounds that the sheriff had failed to leave a copy of the suit at the office of the town clerk of Duxbury. This was a petty technicality but an arguable legal point in 1748, and the Inferior Court dismissed the case without further proceedings and assessed costs of four pounds and fifteen shillings against Veazie. Otis swiftly appealed the decision to the Superior Court and, together with one of Veazie’s Duxbury supporters, filed the required appeal bond. The appeal was docketed for the July term of the Superior Court in 1749. The Duxbury church, however, now thoroughly riled, employed the most powerful advocate available, Colonel Otis, and thus father and son came face to face; the church again won the case on Ruggles’s technicality. The church proceeded to dismiss the dejected Veazie, and he preached a tearful concluding sermon. “Brethren,” he said, “I shall probably not come to you again in this place until I come in the clouds!” To which one of the congregants reportedly replied, “Why, the creature does not expect to come again until it rains toads!”
