by Nathan Allen
And waste its sweetness on the desert air
Somewhere in the corner of the universe, Thomas Gray and Jemmy Otis broke bread, and just a glimpse of that rendezvous was revealed in a country courtroom when Otis threw off a Gray couplet from memory with astonishing poetic accuracy; doubtless Gray’s few poems comingled with the thousands of lines of Latin and Greek poetry that abided in that part of Jemmy’s mind that harbored what could have been. It can hardly be doubted that Jemmy was born to lead the life of a Thomas Gray and such a revelation renders the events of the following year even more inexplicable, for it would soon be apparent that James Otis was some bizarre confection of scholastic poet and fierce warrior.
So ends James Otis’s his first decade in Boston. Otis possessed the qualities so needed in a successful trial lawyer: “brilliance,” “elasticity,” and a merciless pursuit of victory. He was safely apolitical, generally employing conservative country sensibilities but concurrently enjoyed access to the highest circles of provincial government and society. And with his appointments as justice of the peace and acting advocate general of the admiralty court, he had taken small steps to power. The family status was buttressed in 1760 when his father won his old seat in the House of Representatives, after which was elected Speaker of the House; Governor Pownall promptly approved the vote. The Speaker position conferred more raw power than a seat on the Council, but Speaker was beneath Councilor in the feudal scale of prestige that still operated in Massachusetts Province. As Shirley had, Pownall also promised the Colonel the next open seat on the Supreme Court.
And yet Jemmy was quiet in Boston politics; while future leaders such as Thomas Cushing, Royall Tyler, Oxenbridge Thacher and Sam Adams begin regularly appearing in Boston town records by 1758, Otis’s name is entirely absent. The March 1758 town meeting witnessed the appointment of freeholders to the myriad town positions and committees; typically, there were over 120 such appointments that included Selectmen, Overseers of the Poor, Firewards, Treasurer, Clerks of the Market, Surveyors of Boards, Informers of Deer, Surveyor of Hemp, Fence Viewers, Hayward, Assaymasters, Sealers of Leather, Hogreeve, Scavinger, Clerk of Faneuil Hall Market, Cullers of Staves, Purchasers of Grain, Constables, Collectors of Taxes, and Assessors and numerous committee assignments that varied by circumstance. At the town meeting of March 13, 1758, Cushing was elected a Selectman, Tyler an Overseer of the Poor and Fireward, and Thacher to a committee to “Collect all the By-Laws & Orders of the Town now in force” so that they could be officially printed. Sam Adams was elected a tax collector after the first two men elected declined the appointment because of the low commission of six pence per pound collected that tax collectors received. On May 15, 1759, the town of Boston appointed Cushing, Tyler, Thacher and Adams to a committee to petition the General Court for tax relief; Thacher and Adams also served on the school visitation committee. Other familiar names, such as lawyer Ben Pratt and merchant Thomas Flucker, for whom Jemmy had previously won a court case, appear regularly in the records of Boston politics in the late 1750s.
Jemmy’s name doesn’t appear in the record until May 13, 1760, when he was named to a committee along with Thacher and Ben Kent to deal with a Dorchester petition requesting Boston’s help in “rebuilding a Bridge over Naponsit river near Jackson’s Mills” – Otis was becoming something of a recognized bridge expert, which is possibly why a man entirely absent from the political record suddenly appears on a bridge committee. And again on May 13, “James Otis Esq.” is listed as having served on the school visitation committee of July 1759 along with 27 others, including Thomas Hancock, Foster Hutchinson, Flucker, Tyler and Thacher. To a significant degree, visitation committees were nothing more than the town’s most important men gracing the schools with their presence and thus are more a minor recognition of one’s importance than an official review of the schools. The vast majority of the Boston town meeting’s work was tending to the mundane non-political operations of the machinery of town government: paving roads, operating schools, corralling hogs and, by 1764, solving the small pox epidemic.
Jemmy’s court room victory in Halifax made “the young Otis” rather famous by the late 1750s; in merchant circles he was a hero but within the customs establishment he was a man of suspect ethics. Otis’s literary work distinguished him as a gentleman scholar, his Boston connections indicated an increasingly firm social foundation, and his town meeting committee work displayed a sense – though quite minor – of civic duty. These seemingly ideal, stable circumstances were, however, coming within the dawn of what Peter Oliver was to call a “concatenation of Incidents” that would have a cataclysmic effect on not only the School Street household but also on the whole of the North American colonies. Jemmy’s growing prosperity, stability, and brilliant future belie the events that he would next instigate, which Chief Justice Ruggles would accurately claim “has shaken two continents, and will shake all four.”
Pownall’s last official act as governor would be to approve the Colonel as speaker because just a few days later, on June 3, 1760, Governor Pownall said goodbye to Boston as he embarked at Long Wharf to assume the considerably more lucrative position of Governor of the Carolinas. Pownall left both Thomas Hutchinson as lieutenant governor and leader of the Council, and Colonel Otis as Speaker and leader of the House, to anxiously await the arrival of the new governor, Francis Bernard.
In 1757, Jeffrey Amherst served the British in the Seven Years’ War by protecting German territory in Hanover; upon being reassigned to North America, he regained Louisburg from the French with the aid of General Wolfe. Amherst and Wolfe then split to attack French Canada from different directions. Shortly after Wolfe read Thomas Gray’s Elegy and attacked Quebec with combined forces of nearly 30,000, Amherst invaded from the south with a larger force to strike at the heart of New France in Montreal. On September 8, 1760, Commander-in-Chief Jeffrey Amherst led his army down the St. Lawrence River from Lake Ontario, in part in Otis whaleboats, and assaulted French positions at Montreal. French Governor Vaudreuil surrendered, but Amherst refused the customary “honors of war” and directed that all French flags be seized, at which point the French burnt their flags to keep them out of British hands. The fall of Montreal essentially ended the “War for Empire” in America and unified most of North America under British control. New France was dead. Two days later Stephen Sewall, the intelligent, moderate chief justice of the Massachusetts Superior Court, died. The following month on October 25, King George II awoke at seven, enjoyed a customary cup of hot chocolate, and promptly died. Of all these incidents the one of ostensibly least importance emerged as the catalyst for a radical change in the course of history.
CHAPTER III
I will kindle a fire
And yet life seemed good in Massachusetts Province in the summer of 1760. A visitor from Cape Cod to Boston report that Saturday, August 2, 1760 was a “fine pleasant day … a pretty breeze” and “all the gentlemen and troopers” were “on to meet our new governor: Bernard.” The governors of Boston had some wealth or some decent connections in England, but they weren’t the wealthiest or best connected. Certainly, Boston wasn’t New Jersey, but it also wasn’t the South or the Caribbean, the sources of great agricultural wealth. A man with great wealth or substantial connections certainly never landed the position of Massachusetts Bay governor, but a man with great aspirations or limited ability – or both – might.
It was the combination of governors of middling wealth and influence and locals of reasonable wealth and great education that created a mixture ripe for combustion. A powerful governor with a voice heard throughout the kingdom and Portuguese gold johannes to spare could command respect and authority amongst a band of affluent rebel philosophers – affluent for a poor colony. But such a man was rarely appointed and would not have desired the position of governor of Massachusetts Bay. So it was left to the middling strivers to herd the cats of Harvard College, of Barnstable town, of the Boston printing presses and pulpits.
Pownall’s informal style had irritated many, but he had been a good governor, and it is doubtful whether any politician could have gained the universal approval of the contentious New Englanders. Hostilities with France were concluding, the economy had boomed during the war years, and the political situation seemed calm by colonial standards. And so the air was full of excitement and optimism that August Saturday as Francis Bernard arrived from Dedham in a “vary Magnificent Manner” escorted by grandees and cheering crowds. The new governor’s first visit was to the Chamber in the Town House where Secretary Oliver read aloud the royal commission, and Lieutenant Governor Thomas Hutchinson administered the oath of office. Crowds cheered and sang, bonfires lit the sky, guns fired, and the guest of honor was feted at “an elegant dinner” at Faneuil Hall. When Bernard retired that night, he basked in the afterglow of bonfires and smuggled wine, for a “quiet & easy administration” seemed assured, as he wrote to his cousin by marriage and patron, Lord Barrington. Bernard elaborated on his assurance, “I shall have no points of government to dispute about, no schemes of self interest to pursue.” And a few days later he continued: “I have the pleasure to inform your Lordship that I have a very fair prospect of an easy Administration.” This wishful thinking exposes one of Bernard’s several faults: abundant naiveté.
Francis Bernard was educated at Oxford and practiced law for a few years, but his well-connected wife and eight children seemed to demand more than what the life of an average lawyer could provide. His wife’s relatives got Bernard appointed governor of New Jersey in 1758, a position that was neither challenging nor lucrative. He clearly hoped that Massachusetts would be just as easy but more profitable, and to achieve his goal he claimed he would build a government “on the broad bottom of a collation.” His theories regarding the proper ordering of an imperial structure were characterized by the same tidiness as his plans for Harvard Hall and were a reflection of a systematic, uncluttered feudal world that was quickly passing. Bernard was a man of many theories and little practical knowledge, and his shortcomings in the field of political realism relegated his neat imperial plans to the realm of historical curiosities.
The first Massachusetts test of Bernard’s theories and “broad bottom” building was Judge Sewall’s vacant seat on the Superior Court, and the facts surrounding this issue are unambiguous and generally uncontested. Stephen Sewall died Wednesday evening, September 10, 1760, and the next morning Jeremy Gridley met Lieutenant Governor Hutchinson on the street and stated that Hutchinson “must be the successor,” and other members of the bar echoed this sentiment. On Saturday, Jemmy Otis arrived in town from Barnstable with a letters from Colonel Otis addressed to Hutchinson and Hutchinson’s brother-in-Law and Province Secretary Andrew Oliver. The letters requested the “interest” of the addressees in the open seat on the Superior Court. In delivering the letter to Hutchinson, Jemmy Otis stated that if it was a “settled point that your Honor was to be Chief Justice,” then his father would withdraw his consideration; this offer illustrates the Colonel practicing the well-established art of deference. While Colonel Otis had been promised the position by two previous governors, he was also a politician who proceeded cautiously. He would never demand the office but instead diplomatically suggested his availability.
Hutchinson’s reply is the subject of some disagreement, but it was most likely ambiguous. When Jemmy Otis met with Secretary Oliver with the letter, he thought Oliver’s response also demonstrated ambiguity. Oliver recommended that Jemmy confer with Charles Paxton, surveyor of His Majesty’s Customs at Boston, crier of the Superior Court, marshal of the Vice-Admiralty Court, and his wife’s uncle. Jemmy was probably confused by this suggestion because Paxton would have little or no input into the matter, but he visited Paxton anyway. Paxton advised Jemmy that “he had not the least to think his Honor [Hutchinson] had made any Interest to be Chief Justice,” but that application should be made directly to Governor Bernard who was determined to make no appointment without “a Personal Application.” This seemed like good news; Hutchinson was not particularly interested in the position and the governor wanted to personally interview the candidates. The Colonel was likable and well-spoken, so a personal interview would likely favor him.
Judge Sewall was buried that Saturday, and his fiery minister, Reverend Mayhew, delivered the eulogy on Sunday. On Monday, Jemmy mounted his horse and rode two miles south of Boston to Dorchester to get a boat to Castle William, the island fort protecting Boston’s inner harbor and residence of Governor Bernard. During the horse ride to Dorchester a coach bearing Thomas Hutchinson and Charles Paxton overtook Otis going in the opposite direction. Was it a coincidence? Bernard was indecisive during Otis’s visit, and Otis probably wrote his father suggesting he pursue the position personally. Hutchinson, exercising great caution, made no vocal appeal for the position; instead, the three surviving justices took up his cause, which isn’t too surprising because they were all related to Hutchinson. Colonel William Brattle also had an interest in the position. And, of course, Colonel Otis had been twice promised the post; furthermore, Otis’s friendship and appreciation would have done much to improve the new Governor’s political “bottom.” About six weeks after Sewall’s death, the Colonel travelled to Boston to speak with Bernard. According to his son’s recollection, Bernard told the Colonel that “he might be appointed as the youngest Judge of the Superior Court if the Lieutenant would relinquish his pretentions.” So what had Hutchinson said to the governor?
Meanwhile, Bernard also needed to address Pitt’s concerns. On August 23 – just a few weeks after Bernard’s arrival in Massachusetts – William Pitt, whose vigorous and inventive execution of the war in America solidified his popularity in the colonies, issued a stern circular letter to the American governors referring to the “illegal and most pernicious” trade with the French enemy and required that the colonial governors bring all the “heinous Offenders to the most exemplary and condign Punishment.” The implementation of his directive was gradual and irregular, but the colonial merchants were apprehensive and began to seek other means to maintain the free trade they had for so long profitably enjoyed. In a letter to Pitt dated November 8, 1760, new governor Bernard stated that he had made a few inquiries and was “fully satisfied” that Massachusetts was “quite free from” illegal trading. Bernard’s inexperience, so quickly and thoroughly displayed, was but an omen of the administration to come.
Bernard took his time with the judicial appointment but eventually deduced that his political “bottom” entailed pushing back against both the Hutchinson and Otis factions, instead aligning with the small Tyng faction in the House. Bernard almost certainly thought that non-alignment would bring fairness into governance and perhaps make all parties more eager to please the governor, but the result was that Bernard simply had no strong allies. For the appointment of the new chief justice, Bernard made his decision by consulting the Council and the other justices, but there were also many other considerations. Peter Oliver clearly stated the first consideration, “The surviving Judges of the Bench also, not willing to have an Associate of such a Character to seat with them, applied to Mr. Bernard, the then Govr., who had the Nomination to that Office, asking the Favor to have such a Colleague with them that that Harmony of the Bench might not be interrupted.”
Hutchinson was the leading figure on the Governor’s Council. Hutchinson was also Andrew Oliver’s brother-in-law. Most public officers or political appointees held or desired to hold multiple appointments, though the accumulation of offices by Hutchinson and the Olivers was extraordinary. It was common for a judge to also be a practicing lawyer or an elected official or a sheriff. Many lawyers were judges in multiple courts. And as practicing lawyers, it wasn’t uncommon for the attorneys in a court case to also be judges. It wasn’t uncommon for these same judges to enact legislation governing the courts, setting fines and fees, and regulating business. The legislative branch then could feed work to the lawyers, who would bring that work to the courts. O
ften, a cycle of legislation, regulation enforcement, levying fees, bringing a court case and delivering a verdict involved the same small group of people.
Whether or not holding multiple offices was ethical was not generally debated before 1761; the practice was viewed as both firmly entrenched and necessary. Most offices paid little or nothing, so an office holder must be permitted to have other means of earning an income. And most offices were not full-time positions, so it made little sense to pay someone a full-time salary for a part-time job. So if one had political aspirations, one typically vied for and often won multiple offices. The fact that this created significant conflicts of interest seemed comparatively unimportant to the necessity of having legislatures, bureaucrats, sheriffs, judges, customs officers and others required to operate a government. The system was the best anyone could envision and, even if an alternative was devised, the system of holding multiple offices was so entrenched that it was inconceivable that it could be dislodged. What, after all, could one do? If one brought a lawsuit, the judge hearing the case probably held multiple offices, as did the legislators being asked to consider changing the law, or anyone else who had the power to address the problem.
So while there were many offices to hold, typically few held them. And access to those offices was generally limited to the well-connected. In Massachusetts province, anyone who wished to climb out of the cellar of country politics usually needed connections in Boston or England. The real power in Massachusetts Bay was the ruling oligarchy in Boston, a tight-knit group of men who closely held power. The group was presided over by the governor, who was connected enough in England to get the appointment, but rarely did the governor do anything other than position himself as the leader of the entrenched ruling group. And since the ultimate source of the ruling group’s power was the governor; the oligarchy welcomed him into their circle, feting him with grand dinners at Faneuil Hall, offering gifts and all courtesies. Power within the oligarchy was limited to a few families and typically if a position opened, someone’s brother or brother-in-law or son got the appointment. The power of the oligarchy is that “Harmony of the Bench” to which Peter Oliver referred.
