by Nathan Allen
The Veazie case was unique in its details but common in its attitude: religious differences cause a town to refuse to pay their minister, so the minister sues the town. New Englanders did not demur from friction; public squabbles, printed debates and lawsuits were common in almost every facet of life. And in this environment, Jemmy Otis rapidly became a leading lawyer in Plymouth. He played a significant role in bringing legal scholarship and refined procedure to the county. His complex argument in Russell v. Dillingham is but one instance, and the case of Otis v. Turner is another; in December 1748, the case of James Otis, Junior v. John Turner appeared on the docket of the Inferior Court, and it is probable that the justices had never seen anything like the five page declaration filed by the young upstart.
Over the centuries, the feudal basis of English real property law had become encrusted with formal procedures of such mind-boggling intricacy that an action to quit the title to real estate, or to deal with encroachments of various sorts, approached near impossibility. The relatively simple action of ejectment with its fictional tenant, John Doe, became the primary method of proving land ownership in England. To the untutored colonists, this legal chicanery was still enigmatic, but by the 1740s, the trend toward legal sophistication and courtroom cleverness led some of the younger lawyers to employ ejectment.
Refinement in the application of property law was balanced by refinement in the black art of conveyance, and the creation of entailed estates became the vogue among those grasping aristocrats of colonial society who dreamed of a feudal landed gentry. In feudalism, the sole true owner of real estate is the king; all others are tenants, the lords being “tenants-in-chief.” To maintain order and ensure that the tenants-in-chief do not sell land that is putatively owned by the king, the land was held “entail” by the lords. Entailed estates could only be granted to direct heirs; they could not be sold, divided, left to illegitimate or indirect heirs, or, typically, even used as collateral. To combat the development of entailed – that is, feudal – estates in the colonies, Jemmy Otis grasped the opportunity to display the results of Jeremy Gridley’s careful teaching by employing arcane and complicated English legal maneuvers. James Otis, Junior v. John Turner was in the form of the archaic Writ of Entry that had been largely abandoned in England by this time. Otis was not actually the plaintiff and Turner was not actually the defendant. “Ejectment” was a complicated legal means that developed out of medieval England to settle disputes over who owned a parcel of land; a person who felt he owned disputed land would hire an attorney to file an ejectment case in which a fictitious plaintiff would sue a fictitious defendant. A copy of the suit in the name of the fictitious defendant would be sent to any potential real defendant. The fictitious defendants would appear, or no defendants would appear, and eventually the case would be decided on behalf of the fictitious plaintiff, who would then convey title to the real plaintiff. It was an elaborate legal drama meant to give a plaintiff a trial regardless of whether any real defendant appeared in court.
So Otis was merely a nominal plaintiff, having no actual interest in the land in question. John Turner and his wife Mercy, long time friends and distant relatives of the Otis family, were nominal, or collusive, defendants – they were colluding with Otis to present the case. The intention of the suit, which is completely hidden by its multiple fictions, was a “common recovery,” designed to both settle title to real estate and to exclude any other claims; a claimant appearing out of nowhere after an ejectment case would have difficulty asserting ownership to a piece of land since a court had already decided the matter. The Turners, with Colonel Otis as their attorney, asked to “vouch,” or call in, their “warrantors” as defendants. At the next term the “vouchees” appeared, likewise represented by Colonel Otis, who then asked leave to “imparl” with the vouchees, who then, according to the legal ritual, disappeared. This legal theater repeated itself a few times until net result was a collusive judgment giving Jemmy Otis nearly perfect title to various “lotts” of salt marsh and upland in Duxbury. He would then convey his new title to the real plaintiff, who may have been the “Baily” who paid the Otises one hundred pounds “profits” for his “common recovery” the following year. One hundred pounds was a large fee, but if Baily had read the pleadings in Otis v. Turner he probably would have concluded that the fee was small compared to the complex legal chicanery his lawyer employed. Father and son split this fee, as they did many others during the Plymouth years. Otis v. Turner was profitable theater, but it and similar cases led these eager young legal scholars to imbed such technical and complex forms of action so firmly in Massachusetts law that they were still in use far into the 19th century. Importantly, this 1748 case was a small skirmish in the battle between modernity and feudalism and demonstrates a young Jemmy employing the law in a minor victory against the armies of aristocracy. Victories like these would coalesce with lessons from the Land Bank to instruct Jemmy’s generation about the battles that lay ahead.
Otis won many cases, and he lost several as well. Though he was the brightest and best educated lawyer practicing in Plymouth, his scholarly superiority was no guarantee of courtroom omnipotence. He was to prove himself a superb orator, but his oratory was of a different variety than his father’s and may have been less convincing to the “drovers and horsejockies” on the Plymouth juries. With perseverance, Jemmy could have risen to the top of the Plymouth bar, but he may have felt, either consciously or unconsciously, that his aspirations were greater than to be Plymouth’s leading lawyer, and he may have been impatient because of his father’s dominant position in the courtrooms of the region. In that hierarchical world he might have always remained “young Otis.” He had been bloodied in the courtroom battles of Plymouth, Taunton, and Barnstable and had been admitted to practice before the Superior Court, so he was professionally qualified to take his place in the Boston bar. Jemmy had been financially independent since 1748 and his August 1750 relocation to Boston was an assertion of independence in a broader sense. The Superior Court Minute Book records the “young Otis” picking up writs of execution in Plymouth as late as August 1, and his account with his father was balanced off just prior to that; it was time to move on.
Jemmy Otis’s time as a Plymouth lawyer was short but he’d clearly established an excellent reputation; in later years the inhabitants of Plymouth and Bristol Counties were quick to retain his services as he followed the Superior Court on circuit. And he had made a strong impression on Inferior Court Justice Peter Oliver as one “designed, by Nature, for a Genius.”
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the customs establishment & the leverage of juries
In August 1750, Jemmy Otis moved in with his maternal Uncle Allen in Boston, but for the next five years kept a low profile outside of legal circles, his name never appearing in town records or newspapers. His work would have been almost entirely centered around the Town House and the Exchange, the hub of legal and mercantile affairs in Boston. The classic brick Town House was built in 1713 and rebuilt after the devastating fire of 1747; it dominated the center of the town, standing directly at the intersection of King Street and Cornhill (now State and Washington Streets). It was near the dividing line between the North and South Enders who engaged in annual Pope’s Day mêlées, and between the rougher dockworkers to the east and the gentry to the west. The Town House served every segment of society. The merchant’s Exchange occupied all of the first floor except for an office in the northeast corner presided over by Nathaniel Hatch and Samuel Winthrop, the clerks of the Superior Court, and a similar nook in the northwest corner for Province secretary Josiah Willard. The second floor was divided into three rooms, each of which would present a stage for Jemmy Otis as he alternately played his roles as hero and villain. Overlooking King Street and the Long Wharf, the east room served as the Council Chamber; the largest room was in the middle and served as the meeting place for the House of Representatives, and the small room in the west end was the Court Room.
The daily routi
ne of Boston’s lawyers required them to rent offices near the Town House. Every lawyer spent considerable time at the “Change,” or Exchange, where news, rumors, and clients could be found in the assortment of merchants, traders, sea captains, legislators, and lawyers gathered there. More time would be spent in “Hatch’s Office” where writs were filed, executions issued, and returned writs examined. Otis lived and worked in a small neighborhood across King Street – an area no larger than Plymouth town or West Barnstable. To the north of the Exchange stood the Brazen Head Tavern and down the street were Benjamin Kent’s office, the Exchange Tavern, and later the Customs House. Otis’s residence and the British Coffee House were no more than a few blocks from any of these points of interest.
The Suffolk County Inferior Court in Boston handled almost four times as many cases as the Plymouth Court, and the £10 cases that engaged the country courts often swelled into £100 and £1000 cases in Boston. Duxborough congregation clients were replaced by litigants from London, Barbados, and Jamaica, and the Superior Court, while requiring only three days to work through a Plymouth county docket of cases, needed two extended sessions to complete its work in Boston. In the less populous counties of Plymouth, Bristol, and Barnstable, Otis had grown comfortable to a degree of legal dominance by his family; this feature of small town life was unexpectedly repeated in the metropolis, for often when Otis appeared in the Inferior Court of Suffolk County he found himself facing two justices named Hutchinson, one of whom also held the position of judge of probate. In 1750, the cousins Edward Hutchinson and Eliakim Hutchinson were justices of the Suffolk County Inferior Court, and Edward was also judge of probate. On Edward’s death in 1752 his nephew, Thomas Hutchinson, essentially inherited both offices. Nothing was said about the apparent heredity of official offices at the time.
In May of 1750, Henry Lloyd, the merchant, wrote his father in New York that “we haveing a Dearth of good Lawyers here, a door may be open for Mr Fitch.” Two weeks later he continued: “All our eminent Lawyers,” he wrote, “being either Dead or incapable of doing much business, may open a door for Mr Fitch if he inclines to try his tallents in Boston.” Otis exhibited a less optimistic outlook; just a few weeks after arriving in Boston, Jemmy wrote his father, “As to Business I have but little or none Aplin being engaged in everything that goes beside the cup of Dana - Goff who are very carefull to keep what case there is.” Referring to Fitch, Otis reported, “A man from Connecticut that makes a noise here and being Recommended to the court & backed with a great many friends will help spoil the Business.” Samuel Fitch seemed to be the hot new lawyer in town. One of Fitch’s “many friends” was Justice Eliakim Hutchinson, Henry Lloyd Jr.’s brother-in-law. “Goff” was Edmund Trowbridge who for many years used the name of his guardian-uncle, Gaffe. “Aplin” is an obscure figure, apparently the Aplin whom John Adams later found to be as “tedious” as Robert Auchmuty.
Otis was excessively gloomy; albeit of substantial population and importance, Boston counted only five veteran lawyers engaged in full time practice. John “Father” Read, the celebrated generalist of the older generation, had died in 1749, leaving Jemmy’s mentor Jeremy Gridley as the pre-eminent lawyer of the Boston bar. Gridley’s peers were Richard Dana (“Dana”) and his brother-in-law Edmund Trowbridge (“Goff”), both of whom had been practicing before the Superior Court for nearly two decades. The younger generation of lawyers practicing in Boston included Ben Kent and Ben Prat. And yet Otis informed his father that Prat was suffering one of his recurring bouts of illness, and Gridley was “on his Passage” to some unidentified destination. This left Dana and Goff in a preeminent position. The younger generation rapidly filled this vacuum; Otis and Samuel Fitch arrived in the fall of 1750, and Robert Auchmuty and Oxenbridge Thacher followed them soon after. This newly arrived younger generation effectively composed the Boston bar in the early 1750s.
Other conditions in 1750 made for a favorable climate to embark on a legal practice; though generating distress amongst the general population, economic uncertainty benefits lawyers. Thomas Hutchinson and Governor Shirley had finally succeeded in legislating currency reform, but even the business community that stood to gain the most was faced with a dilemma. The old bills of credit had been voided, but their silver replacements were either slow to appear in the channels of trade or swift to disappear. The merchants were accused of shipping all the silver back to England to pay their debts, and the newspapers were filled with accusations. Convoluted tables for converting “Old Tenor” and “New Tenor” bills to the new silver coinage were printed, and Bostonians were either amused or angered by an open accusation leveled at Thomas Hutchinson that he had engaged in prohibited and profitable transactions with New Hampshire bills of credit, to which Hutchinson published an admission and a convoluted, technical justification that disappointed his allies and stoked the fires of his enemies. The abrupt correction after the long inflationary binge and the resulting disruption of intercolonial trade produced a precarious economic, legal, and political climate. Lawyers thrive in such conditions, and, not surprisingly, the animosity against the mysterious art and its practitioners surfaced in a poem published in the Boston Evening-Post, February 5, 1750 that concluded:
Then rather let two Neighbors end your Cause,
And split the Difference; tho’ you lose one half;’
Than spend the whole, entangled in the Laws,
While Lawyers sly, at both Sides laugh.
Despite his pessimism, Otis quickly established himself in Boston, arguing for an appeal in the Superior Court as early as February 1751 – just five months after relocating. He was particularly growing popular among the merchants; he won a February 1751 case for merchant Joseph Waldo, a Harvard acquaintance and member of the faction opposing Governor Shirley and Hutchinson. Two months later, the Superior Court disclosed enough confidence in the young lawyer to appoint him “to act as Attorney for the King” – essentially the town prosecutor, and Otis performed commendably in securing convictions of two street fighters and a young arsonist. In August 1751, he won four affirmations of Inferior Court judgments in a row, an impressive feat for a 26-year-old. His success improved his reputation among merchants, and before the end of the year he was representing wealthy merchant Nathaniel Cunningham, Jr., who would in turn become his brother-in-law. A case by case examination of Otis’s practice would demonstrate his climb to eminence, but two major cases occupied much of Jemmy’s time and best illuminate his ability to out-research and outmaneuver his opponents. These cases also illustrate the droll synthesis of crudity and sophistication that permeated the law and its practice during this period of maturation in colonial law.
The first, Fletcher v. Vassall, was one of those extraordinary cases of which every lawyer dreams; it engaged many of Boston’s leading lawyers and incorporated nearly every ploy known to colonial lawyers before it finally sputtered to a halt five years after it began. Most importantly, Fletcher v. Vassall laid bare the oftentimes gruesome innards of Boston high-society, merchant affairs, and legal machinations, an understanding of which would be highly valuable years later when Jemmy would manipulate and attack many of the same institutions.
In all probability, the case began in the bottom of several bottles of madeira wine at a small dinner hosted by William Vassall in August 1749 for the members of his “clubb,” one of the many small informal social groups that dotted Boston society. Scion of one of the province’s oldest families, Vassall had amassed a mostly inherited fortune in Jamaica sugar plantations. He graduated from Harvard in 1733, lived for a time on the family’s Caribbean plantations, and, after the death of his father, returned to Boston where he lived fantastically on his immense plantation income. He had several faults not the least of which was what John Adams later termed as “garrulity,” and at the dinner in question his usual garrulity included outrageously slandering a Boston merchant, William Fletcher. His guests included distinguished Boston figures Belcher Hancock, the Harvard tutor, Doctor Ebenez
er Miller, Joshua Richardson, Joseph Royall, and Doctor Jonathan Mayhew, the influential minister of the West Church who, a few months later delivered his famously defiant sermon Discourse Concerning Unlimited Submission and Non-Resistance. So in Massachusetts in 1749, a minister of a major church could argue that the execution of a king is justified if the king abrogated the people’s liberties, yet one wealthy merchant couldn’t speak poorly of another wealthy merchant. The preacher’s sermon was acceptable not because the idea of regicide was acceptable but rather because no one thought, in 1749, that such an argument had any practicable effect on his life or his government. To actually apply Mayhew’s argument to the province or the empire was entirely inconceivable; however, Vassall’s slander may have had a practicable effect and thus was taken quite seriously.
