Arsonist: The Most Dangerous Man in America

by Nathan Allen

  The petition was based on the enforcement of the Molasses Act of 1733, which had been created to protect the British sugar planters’s interests by assessing a confiscatory duty on the importation of non-English sugar and molasses. The Act’s extremely high tax wasn’t intended to generate revenue as much as it was designed to discourage the importation of any non-English sugar or molasses. The Act was recognized more in the breach than in the enforcement; customs officials would agree not to confiscate smuggled sugar and molasses in exchange for a fee. Violators were subject to forfeiture of cargo and ship in the Vice Admiralty Court with the seized cargo sold at auction, and proceeds disbursed equally to “the use of his Majesty… to be applied for the support of the Colony,” the Governor, and the informer; all prosecution expenses were paid out of the King’s share. So while customs officials made a decent amount permitting smugglers to operate, informers and the governor wanted contraband confiscated and auctioned.

  The primary issue of the merchant’s complaint was that the “informer” had been unfairly collecting the King’s (that is, the province’s) share by charging the province for prosecution expenses that were illega1 and excessive and for “securing information” expenses that were similarly considerable and suspiciously vague. The merchants intended to prove that the province’s chief informer was a thief; of course, that informer was Charles Paxton.

  Otis had combed the Vice-Admiralty books and extracted the settlement figures for seven seizures made since 1753; the gross receipts from the sale of forfeited cargo totaled about £1822, but the province received a paltry £2, suggesting that someone was siphoning off province revenue. The House quickly voted for the formation of an investigatory committee. Two days later the merchant group repeated their claim before the Council, and six councilors were appointed to the joint committee. On January 13, 1761, the committee submitted a report to the House and the Council: £475 had been illegally deducted from the Province’s account, and the Province Treasurer should collect that amount. If the amount wasn’t collected within a month, the Province would file a suit.

  Bernard, surely under pressure from the oligarchy to protect one of its own, raised a technical objection: the King’s money was at issue, and any suit for its recovery should be either in the King’s or province’s name, not the treasurer’s, and therefore the suit should be instigated by Attorney General Edmund Trowbridge. The committee replied that since the treasurer could sue to recover tax monies on behalf of the province, surely he could sue to recover this money. The committee was dominated by House members, the Speaker of which was Colonel Otis, and the real reason for the committee’s position was that they rightfully feared that, left to the governor and attorney general, the money would likely never be collected. Further, they wanted to retain their own lawyer, that curse of the customs establishment, Jemmy Otis. Realizing he had been expertly outmaneuvered, Governor Bernard stalled the investigation by suspending the General Court.

  It was probably not yet clear to Bernard that he’d made powerful enemies in the Otises, for they had proved that they could bring much of the provincial government to a halt when they wished. Jemmy Otis also brilliantly illustrated that the deference that men of high station demanded meant nothing to him; members of the oligarchy could and would be attacked by commoners. If Bernard had not yet realized that a new order was emerging, Hutchinson and the Olivers did. While none of them had any idea where it would lead, they also knew that in Jemmy Otis they were dealing with a man of immense capabilities.

  How had Jemmy devised a case so perfectly that the mighty ruling elite could do nothing but watch as it was proved that one of their own was stealing from the people and that such activity was accepted by those in power? Otis seemed to have every bit of evidence and every detail nailed down before he walked into the chamber on December 24. Using Paxton as a target had its origin in the mind of Benjamin Barons, who had arrived in Boston in 1759 with a collector’s commission in his pocket. He owed nothing to Governor Bernard, Paxton, or Surveyor General Lechmere and did not disguise his desire to make a fortune from his position by allying himself with the merchant community. This collaboration between tax payer and tax collector was not uncommon for the customs officers who were authorized by statute to enter into agreed settlements with importers on contested interpretations of the Acts of Trade. If the collector had an antagonistic relationship with the merchants, then he needed to monitor shipments, search for smuggled cargo, cultivate and pay informants, hire lawyers, curry favor with politicians, and a host of other burdens. However, if the collector collaborated with merchants, he would agree to leave them alone provided they pay him a pre-determined amount in taxes. This collaborative relationship is precisely what Barons cultivated.

  The problem was that this collaborative relationship cut severely into the compensation of Lechmere, the Surveyor General of Customs, and his staff of informers. Lechmere had temporarily suspended Barons soon after his arrival in 1759, but Baron’s collaborative efforts did not diminish, and private meetings with Bernard, Russell, Paxton, and Lechmere served only to further anger Barons to the point where he unreservedly sided with the “illicit traders” – a term that could be applied to most of the merchants of Massachusetts. Barons’s anti-establishment position might have been ineffective had it not been for the strengthening merchants’ organization, the informal “Society for Encouraging Trade and Commerce,” which met regularly at the British Coffee House – a few blocks from Jemmy’s School Street home. Barons met with the key merchants and their advisor, James Otis, and it was at the British Coffee House that Jemmy devised the first attack on the customs system. As advocate general, Otis had unfettered access to the Vice-Admiralty Account Book, so he could obtain all of the payment information from the past decade. After obtaining this information, Otis renounced his position as advocate general. And Barons had detailed knowledge of customs practices; together, they wrote the unofficial indictment for presentation to the committee. Though the merchants delighted in attacking Paxton, the suit was just the first phase of a much bigger plan.

  Charles Paxton was the visible target of Otis’s first assault, but the real targets were the Olivers, Thomas Hutchinson and Governor Bernard. Though the merchant petition raised a valid grievance, both Bernard and Hutchinson knew there was no legal remedy, at least by the method chosen by the Assembly. Collecting the £475 was a Vice-Admiralty matter, not a provincial common law matter. Otis was too good a lawyer not to know this, but a proceeding in the Vice-Admiralty Court would not serve his purpose as it would have involved a hearing on the nature of the collection of the information to be argued before Judge Russell who could, and probably would, have denied it; in short, the judge would have determined that Otis’s collection of information from the Vice-Admiralty Account Book was perhaps illegal and not admissible in court. The only redress would have been an expensive, time consuming, and probably fruitless appeal to the High Court of Admiralty in Westminster. It’s clear that Otis wanted maximum political effect, not the £475. And it’s clear that Otis advised the merchants that to sue Paxton in court would be to request one member of the oligarchy to convict another member, which wasn’t likely to happen. Instead, Otis directed the merchants to the democratic House of Representatives, a sympathetic body largely composed of merchants and men elected by merchants and led by his father.

  Hutchinson was painfully aware that he was a target. “I have opposed the whole measure,” he wrote to Israel Williams on January 21, 1761, “I knew the spring of it. I thought it a cruel thing to force the Governor into the measure … But it is not a farthings matter what principle I acted on as long as I oppose a popular measure the clamour will be against me.” And he realized that he’d been entrapped in a political snare; while Hutchinson had the money and experience to be somewhat inured to such problems, Governor Bernard began to panic. On January 19, 1761, Bernard wrote to his benefactor Lord Barrington, “Mr Barrons has plaid the Devil in this town. He has put himself at t
he head of a combination of Merchants all raised by him with the Assistance of two or three others to demolish the Court of Admiralty & the other Custom house officers . . . he & his emissaries have turned the fury of his party against me.”

  The Paxton case had exploded publically, and now that Jemmy Otis had everyone’s attention, he lit another match; he would argue that Lechmere’s customs officials did not have the right to search for smuggled cargo without probable cause. Such an argument was considered absurd and dangerous at the time because it would render the entire customs structure incapable of operating, would severely deplete government revenue, and would make even greater enemies of very powerful customs officials.

  Otis’s plan for setting the province aflame was becoming clear: attack with a level of aggression that the oligarchy had never before seen, and attack simultaneously on multiple fronts. The assault would be new and astonishing to the oligarchy because they had built a cozy club amongst themselves; they didn’t always agree, but they remained focused on increasing their wealth and power. Jemmy Otis would attack the argument and the person making the argument; he would use the colonial media to put faces to the arguments to make certain that the masses knew exactly who to blame, who to terrorize, whose house to smash to bits, whose effigy to hang from the Liberty Tree. He would simultaneously employ sophisticated legal, historical and philosophical arguments and personal scathing insults. The oligarchy was well-fortified, and Otis would strike at it with every weapon in his possession.

  Otis began writing the Lechmere case while the Paxton case was still being investigated by the committee. The case that Otis was preparing would become one of the most famous legal cases in history and certainly the most famous case in the pre-revolutionary colonies. The Petition of Lechmere, as it was formally called, would permanently drive a wedge between the average merchant and the oligarchy, a wedge so enduring that Otis’s argument would be written into the U.S. Constitution 26 years later as the Fourth Amendment. The Petition of Lechmere was scheduled for a hearing before the Massachusetts Superior Court on February 24, 1761.

  Though general search warrants, usually called “writs of assistance,” were not unknown to Massachusetts lawyers, this writ was an anomaly in English law in that it required no showing of “probable cause” and no “return” or report to the issuing authority. A further odd feature was that it was valid until six months after the death of the reigning sovereign. According to Hutchinson, Governor Shirley had issued the writs as an executive function until Hutchinson had suggested the impropriety of that procedure. Thereafter, commencing in 1755, the Superior Court had issued the writs upon proper petition by a customs officer; their issuance was considered a standard and necessary component of custom operations.

  There were several reasons why Otis targeted the writs at precisely this time. First, the writs expired six months after the death of the King, and King George has just died, so all colonial writs were set to expire in April 1761. They would all need to be renewed, so the interim period was an ideal time to challenge their legality. Second, James Cockle, the new collector at Salem, had just requested a writ of assistance to be issued from the Superior Court. Records don’t exist for this request, so it seems probable that Cockle made a verbal request to the Court, but the Court, disturbed by earlier expressed reservations about the legality of the writ, dissuaded him from filing a petition until they could further consider the matter. Furthermore, any writ issued would simply need to be reissued in a few months, so Cockle was persuaded to be patient. This gave Otis the pause he needed to attack.

  Otis’s strategy in the Lechmere case would set a pattern he would repeatedly employ, confusing contemporaries and historians for centuries. There were probably multiple issues that Otis considered, the first of which was that his family, particularly his father, the current Speaker of the House, was politically quite moderate. The Colonel usually did not take sides on issues and would position himself as the temperate voice of reconciliation. His son, while much fierier, understood the strategic advantage of appearing to be on neither side of an explosive issue. Secondly, Otis undoubtedly considered the nature of his opponent: the customs structure. Customs personnel ranged from appointed aristocrats and commissioned officers to paid informers and wharf thugs. The process of raiding ships suspected of smuggling, attempting to seize cargo, and enforcing the law against dockhands and sailors could be nasty and life-threatening; Jemmy would not have had much direct experience with the dirty business of customs enforcement, but he had certainly been warned, and his Halifax case, in which men were killed in the process of enforcing customs, certainly made the dangers clear. In successfully defending men who had murdered Royal Navy sailors attempting to enforce customs laws and in successfully proving that custom officer Paxton was a thief, Otis had already made enough enemies.

  The strategy that Otis employed was simple but effective: he would convince his opponents that he was sympathetic to their position, or that he was approaching the issue objectively and siding with neither party, or that he was not advising either party. He would make statements that would seem to contradict what his opponents suspected. He would declare himself in opposition to a position that he’d previously taken. His opponents would be bewildered and rendered incapable of moving forcefully against him, as no single target existed at which to aim. A few of Otis’s colleagues would also be confused, for the effectiveness of the strategy depended on its apparent authenticity. As long as Otis could keep his opponents guessing, he was relatively safe.

  So the merchant committee proffered the first formal petition to the Court asking, “That they may be heard by themselves and Council upon the subject of Writs of Assistance.” The petition was signed by sixty-three merchants, most of whom also had signed the Paxton petition to the Court, but with four more signatures, it seemed the “combination of Merchants” was growing. Jemmy Otis neither directly composed nor signed the petition, though he advised the merchants in every respect. Deftly, Otis’s fingerprints were nowhere to be found on the actual petition filed with the court.

  The appropriate lawyer to defend customs officers would have been the attorney general, Edmund Trowbridge, but Surveyor General Lechmere knew that Jemmy Otis was behind the assault and needed a lawyer who knew and could defeat Otis. Lechmere’s choice was the man who taught Jemmy Otis the law, Jeremy Gridley. The merchant’s petition was quickly matched by a “Memorial” filed by Lechmere that recited the filing of the “Merchants and Traders” petition and requested “that Council may be heard on his Majesty’s behalf upon the same Subject: And that Writs of Assistance may be granted, as usual.”

  Otis first appeared in court soon thereafter but not as an attorney for either side. In his opening, Otis stated: “I was desired by one of the court to look into the books, and consider the question now before the court, concerning Writs of Assistance.” The records do not indicate which justice asked Otis to conduct this research or when. In all likelihood, the court asked the then prosecutor for the vice-admiralty court to research the legality of general warrants months earlier when Cockle verbally requested one. So while it’s a safe assumption that the lawyer who would prosecute customs cases would be asked by the court for his opinion on the legality of customs warrants, Otis quit the position before reporting to the court. It’s quite possible that Otis’s research into the general warrants was a primary catalyst for his decision to attack the oligarchy and that the Paxton case simply came up first because it was simpler and was heard before the General Court, not the Supreme Court. And while Otis probably had to renounce his position as the King’s advocate in Admiralty courts prior to the Paxton case, it’s also quite possible that he knew that he had to renounce his position if he was to side with the merchants against the customs establishment in the warrants case.

  Otis then sought to establish his role as “not only in obedience to your order, but also in behalf of the inhabitants of this town.” So Otis was appearing on behalf of the court and the town,
not on behalf of either party to the case. And Otis even had more cover when Oxenbridge Thacher was joined with Otis “at the desire of the Court.” When the hearing opened, Gridley faced two of his pupils across the table. As he was to admit later, “I hatched two young eagles, now they peck out my eyes.” The arguments presented by these three lawyers illustrate the progress made by lawyers over the preceding decades as myriad mundane legal skirmishes had sharpened their logical powers, and Gridley’s almost antiquarian curriculum developed in his apprentices an acute appreciation of theory and precedent; some of James Otis’s law books still have marginal jottings on salient points, others still folded to a wide range of entries bearing both the central and peripheral points he argued. Jeremy Gridley began with an uninspired presentation of the basic English statute of 1662 that authorized the writs of assistance, and then progressed to the structure of the writ as set forth in a standard work on Exchequer practice. Next he reminded the court of the common practice of issuing writs in Massachusetts, and finally he reminded the court of the necessity of public taxes being collected efficiently and effectually. Gridley’s theme throughout his argument was that the primary purpose of the court was to support the government. He conceded that general warrants may be unpopular and may occasionally infringe on the individual rights of the people, but the government’s revenue depended on the warrants, and without revenue, the government could not defend itself against an “invasion of her foes, nor the tumults of … her own subjects.” The preservation of the government and safety of the people depended on the warrants. Gridley stressed that the court must uphold the preservation of the government above all else, because the “Necessity of having public Taxes effectually and speedily collected” was “infinitely” more important that “the liberty of any individual.” Gridley was willing to concede that the choice was between survival of the government and individual liberty, which seems to be an astonishing admission, but perhaps Gridley was aware that Otis would present an even more astonishing argument.