by Nathan Allen
And if one wasn’t born into the ruling class, one could marry into it, as Governor Bernard did. His wife’s cousin was Lord Barrington, and it was he who secured Bernard the colonial appointment. Hutchinson’s wife was the granddaughter of the Rhode Island governor. Andrew and Peter Oliver were the sons of a wealthy merchant and grandsons of the former Governor of Massachusetts, New Hampshire and New Jersey. Thomas Oliver was not related to these Olivers but got the job as Lt. Gov. after Andrew Oliver died because Hutchinson thought he was related. And, of course, Thomas Hutchinson was Andrew Oliver’s brother-in-law. And, of course, most of them attended Harvard (Hutchinson, Andrew, Peter and Thomas Oliver).
These connections are to be expected. The oligarchy that ruled Massachusetts politics was ever striving to be more exclusive. Children of governors married the children of other governors, or judges, or wealthy merchants, or large landowners. Outsiders were not welcome. By the 1750s these patterns were well-established and firmly entrenched. The oligarchy would have a reasonable explanation for these relationships: there were few men with the appropriate education, temperament and means to devote their lives to public service. Therefore, it shouldn’t seem odd that only a few men held office. A semi-literate apple farmer can’t be expected to be a Superior Court judge, particularly when the bench probably doesn’t pay as well as the fields. Judge Peter Oliver claimed that he spent £2,000 more than he was paid to cover the expenses of running his court in Boston. How could an average man have the time, money, education and temperament required to hold these offices?
Andrew Oliver, a descendant of the Olivers who lived in New York City in the mid-20th century, owned a painting of Peter Oliver. The painting is a typical late 18th century portrait of a wealthy and important man. Mr. Oliver would inform you that the portrait was painted by John Singleton Copley, and the reprint is often attributed to Copley. The attribution makes sense; Peter Oliver was one of the wealthiest and most important men in colonial New England, and Copley was the greatest painter in colonial New England, particularly of wealthy, important men. Copley painted John Hancock twice and famously painted Hancock’s friend and co-conspirator Sam Adams (a painting for which Hancock paid). Copley also painted perhaps the most famous portrait of the time: Paul Revere holding the silver teapot. The portrait of Peter Oliver is unsigned, but one can certainly assume it was painted by the most expensive painter in the colonies because it’s of an Oliver.
The attitudes of the ruling oligarchy are well described in Peter Oliver’s history of the revolution. Peter was a judge for 25 years, was a Superior court judge throughout the entire turbulent 1760s, and eventually rose to chief justice of the Superior Court. Prior to becoming a judge, Peter served with his brother and Hutchinson in the upper house of the legislature. He was one of New England’s wealthiest landowners and was firmly entrenched in the oligarchy. Much of Peter’s wealth came from his iron foundry, which flourished from government and military contracts during the Seven Years War. The Olivers won those contracts because they were well-connected in Boston and lobbied for both the contracts and for the taxes to pay for them. After leaving the legislature, Peter’s brother became Secretary then Lt. Governor of the province. Peter’s wife, Mary Clarke, came from a wealthy family. And the Oliver, Clarke and Hutchinson families occasionally went into business together, particularly on shipping contracts. Peter’s daughter Sara married Hutchinson’s son. Peter knew well nearly every actor in the revolution drama. He was a judge at the Boston Massacre trial and a close advisor to the final two colonial governors of the province, Hutchinson and Gage. Few families controlled as much of the province’s activities.
The oligarchy strove to keep power within the small group. So even though Hutchinson had no urge to seek a seat on the Superior Court, he was being seriously considered. He was already Lieutenant Governor, member of the Governor’s Council, chief justice the Suffolk County Inferior Court, judge of Probate, and captain of the Castle. Though he had an often perceptive interest in the law, he had never received legal training and had never practiced. But Bernard had another very serious consideration: Hutchinson had repeatedly pointed out that financially a seat on the Superior Court would be meaningless to him, and it seemed obvious to all that his goal was the governor’s chair. He had made a cautious move in that direction at the time of Governor Shirley’s departure in 1756 in letters he sent to his confidante, Israel Williams. These letters are replete with references to the care he was taking to keep in Bernard’s good graces and to protect his rear. Hutchinson’s rear was the Colonel, and Hutchinson had effectively blocked his path to more power. Bernard’s rear was Hutchinson, and he may have been determined to award the appointment to Hutchinson to curb his advances toward the governorship.
The third consideration was the upcoming cases that would be heard by the Supreme Court, particularly the writs of assistance case. A writ of assistance was a general warrant that a customs officer could use to search anybody, anywhere, at any time, for contraband. A crackdown on trading with France had recently been implemented and a crackdown on untaxed goods was on the way; in both cases, the ability of a customs officer to engage in unrestricted search was vital to the success of law enforcement. The merchants were growing upset with the issuance of general warrants, and the matter would soon need to be decided by the Supreme Court. The governor’s basic ability to perform his job and receive compensation, as he earned a portion of the proceeds from auctioning seized cargo, depended on the ability of customs officers to search ships, warehouses, and houses of all sorts. With the opportunity to help shape the court, Bernard would certainly wish to be certain that his choice would steer the court toward deciding in favor of writs of assistance.
We have no way to discern whether this final consideration was paramount to Bernard, but writing nearly sixty years later John Adams, as he was synthesizing his views on the causes of the Revolution, tends to affirm that Bernard’s primary concern was a favorable decision in any pending cases involving writs of assistance. Adams recalled that Bernard was warned that a major legal challenge to the general warrant was pending and defeating that challenge was paramount to Bernard’s ability to perform his job and would substantially determine his income. So the naïve and newly arrived Governor Francis Bernard was being told by the Council and the other Supreme Court justices that someone within the ruling oligarchy needed to be chosen as chief justice, and Bernard knew and feared the machinations of the wealthy and well-connected Thomas Hutchinson; and perhaps most of all, he feared a court decision against general search warrants. So on November 13th, Bernard appointed Thomas Hutchinson as the new Chief Justice. The appointment would meet with the approval of the Boston powerbrokers and might satisfy Hutchinson’s lust for more power. Above all, Hutchinson would certainly side with government against the merchants in any case involving search warrants.
The Colonel likely felt betrayed: Governor Shirley’s departure, bitter defeats in his attempts to gain a seat on the Council, the realization that he had been held down by the Oliver “junto” – his term for the oligarchy. Behind all this the feeling on the part of the leaders of the Council was that Colonel Otis, though a successful leader with a large political following, was just not the type of man they wanted as a Superior Court Justice. The attitude could be viewed as sheer snobbishness, but in 1760 it was part of the pattern of deference and recognizing a person’s position in the social strata. Colonel Otis had not attended Harvard and did not live in Boston; while he was a “friend of government,” he was also a country bumpkin. Something more than wealth and political clout was required that the Otis family could not yet deliver: the breeding, culture, and point of view of the provincial aristocrats who controlled the Council and the Superior Court. That there was an oligarchy could hardly be denied, for on a functional level all of the justices of the Superior Court were probably the center of power of everything in the entire province. And Hutchinson, while relinquishing his Inferior Court seat to his half brother Foster,
did retain his Probate judgeship. Justice Russell was also a judge of the Admiralty Court, and several members of the Council also held seats on the inferior courts of their counties. Control of the power in the province was vital and depended on keeping the oligarchy small.
On a personal level, the oligarchic tendencies were just as pronounced. Andrew Oliver, the province secretary and councilor, was Hutchinson’s brother-in-law. The son of Justice Peter Oliver, Andrew’s brother, married Hutchinson’s daughter while Justice Lynde was father-in-law to Andrew Oliver’s son. A small group of families inter-married and collectively held a majority of the most powerful seats and were the wealthiest merchants. This government of blood ties was an accepted fact of both English and colonial politics. Interestingly, while the Colonel wasn’t a part of the reigning coterie, his son, Jemmy, increasingly was. Jemmy had attended Harvard, married a Boston heiress, and lived on School Street. Jemmy did not quite posses the wealth to join the ranks of the very elite, but he was close and getting closer.
Perhaps more remarkable, Jonathan Mayhew’s published elegy on the death of Judge Sewall pointed out the problem of the oligarchy: it was creating in appearance if not in fact “undue influence.” Sewall held the offices of Councilor and Judge, and Mayhew wrote, “But he himself made opposition to it; and this, partly at least, because he doubted the expediency of his being at once a judge of the court, and at the council table; thinking that, hereby he might be brought ‘into temptation and a snare’; I or, in plain words, subject himself to undue influence.” Mayhew was one of the few at the time to elucidate this issue, but the idea was to burgeon during the following years into one of the most potent of the rebellions against the oligarchy that dominated the Massachusetts government. The opposition to multiple office holding was but one small battle in the simmering war of the people and merchants against the oligarchy. This war can most succinctly be viewed as an effort to dislodge government from the people who controlled it. In the feudal conception of government, there was little difference between the oligarchy and institutions of authority; the lawyers and preachers of Massachusetts Bay were on the fore of modern thought by demanding that the two become uncoupled.
Bernard later claimed that prior to appointing the new justice, the Colonel ended his application interview by warning both him and Hutchinson that if the latter were appointed they would “repent it.” This assertion wasn’t made until 1763, when Jemmy Otis was Bernard’s arch enemy. Doubtless, Bernard wanted to paint the Otis family as bitter, vindictive political enemies and that the catalyst for Jemmy’s opposition to Bernard had little to do with rights and everything to do with politics. But it could have happened, as the Colonel wasn’t threatening Bernard as much as alerting him that Hutchinson was a polarizing figure, and he’d regret appointing such a man to such a powerful position. Or the Colonel may have intended to remind Bernard that Hutchinson hadn’t been trained in the law and had never acted as an attorney. One might regret putting a man with limited experience in the highest position in the province. Or perhaps Otis was reminding Bernard that Hutchinson already held numerous important offices and couldn’t reasonably have the time for another. Despite what Bernard later claimed, it’s highly unlikely that the diplomatic, deferential Colonel would have threatened anyone of Bernard’s standing.
And there were many other arguments made against Hutchinson while Bernard tried to formulate a decision. First embodied in an unfinished piece, John Adams wrote urging the appointment of a man trained in the law, not in “Husbandry, Merchandize, Politicks, nay in science or Literature.” It’s unclear who Adams would have preferred, but he obviously viewed Hutchinson as a poor choice. At the time, it was generally agreed that Hutchinson got the appointment because he was well-connected, well-bred, and wealthy; the arguments for and against him tended to cite the same criteria. No one argued that Hutchinson got the position because of his superior legal acumen and training. So the debate over Hutchinson’s appointment wasn’t over whether one should get a position based on merit, but rather which “merits” were worth considering. The Old World of deference and status accorded merit to one’s station; a man with the right friends, enough wealth, and of a certain status merited consideration for any position. After all, Bernard didn’t become governor of New Jersey because he showed any aptitude for governance. Quite the opposite was true; Bernard’s law career in England was mediocre at best and gave no indication that he was capable of managing anything. But he – or, rather, his wife – knew influential people. There was no test of his capabilities; Bernard, by virtue of his station, which was largely composed of his connections, merited the position of governor.
But it was clear that there was growing resentment in Massachusetts over this feudal conception of merit. The New England colonists had long been paranoid that Old World institutions would take root in the New World; they perpetually fretted about the Church of England creating a bishopric in New England. They wanted nothing to do with royalty or aristocrats or bishops, so it wasn’t surprising that there was some animosity created by the development of what appeared to be an aristocracy. Men were getting jobs not because they were qualified or needed the compensation but rather simply because of their station. Many, like John Adams, wrote about this growing animosity. Jemmy Otis went further. A few weeks prior to Bernard’s decision, Jemmy Otis let all of Boston know that in no uncertain terms a political explosion was imminent. He said, “If Bernard does not appoint my father judge of the Superior Court, I will kindle such fire in the Province as shall singe the governor, though I myself perish in the flames.” A little over two years later in the Boston News-Letter, April 7, 1763, Thomas Hutchinson recalls that Otis said he would “set the Province in a flame.” Peter Oliver’s recollection was “that if his Father was not a Justice of the superior Court; would set the Province in a Flame if he died in the Attempt.”
This threat was reported with minor variations from many sources and sometimes included a benediction Fléctere si néqueo súperos Acheronta movebo. This bit of Latin is precisely something a literary and Latin scholar such as Jemmy Otis would append to a notice. It’s Book VII, line 312 from Virgil’s Aeneid, and it’s usually translated as, “If I cannot bend Heaven, I shall move Hell.”
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moving hell – the Christmas Eve massacre
According to reports received by Bernard, these threats were “declared publickly with oaths.” As Hutchinson was to ruefully admit in later years, “From so small a spark a great fire seemed to kindle.” Jemmy Otis’s plan for setting Massachusetts aflame was complex, and it started by using the skills he’d developed as a lawyer and the target was someone who probably did not expect to be set to the match. Charles Paxton was the epitome of the grasping, conniving bureaucrat and thus a favorite target of critics; he had been a customs officer in Boston since 1752 and had inveigled his way into Bernard’s confidence by tipping off the new governor to auction prices paid for the accoutrements of the office that Pownall had left in Thomas Hancock’s care to be sold to Bernard. Paxton also demonstrated his love of backroom politics and perfidious rumor-mongering by insinuating to his English patron, General George Townshend, that the Surveyor General of Customs, Thomas Lechmere, had clashed with the Collector Benjamin Barons and hinting that if either were expelled from office he would be pleased to fill the vacancy. The clash between the Customs Surveyor and the Collector had been partially due to Paxton informing Collector Barons that former governor Pownall had written to England defaming Barons, and Paxton let Barons assume that Pownall got his information from the Customs Surveyor Lechmere. By 1760, Paxton’s reputation was as a perfidious rat, and he was the oligarchy’s rat.
Perhaps the lines that divided the two sides of the Revolution were first drawn by Otis that fall when he renounced his commission as advocate general of the Vice-Admiralty court; it was a direct rebuke of the oligarchy and a clear signal of Otis’s allegiance to the merchants. It was also a necessary maneuver before the fusillade that w
as coming. Otis’s other problem was that Paxton was a relative by marriage; so Otis told Paxton beforehand of the plan knowing that Paxton could do nothing to stop it or protect himself. A month after Hutchinson’s appointment but before receiving his commission, the first of Otis’s incendiary moves was made public in the form of a “humble petition” to the Governor, Council, and House of Representatives by fifty-nine of Boston’s leading merchants. The crux of the petition was that there had been “many Instances of Misapplication of the Province’s Part of Seizures” in the Vice-Admiralty Court, and since province revenue improprieties were a public concern, the petitioners requested an opportunity to “be heard … upon the floor of the House.” Petitions were nothing new to the General Court, but it took no political wonk to appreciate that this petition was unusual. The House was under Colonel Otis’s leadership, so it quickly granted the request for a hearing and scheduled it for December 24, 1760. The hearing consumed most of the day, and the petitioners “were fully heard by their Council upon the Subject-Matter of their Petition.”
