by Nathan Allen
After summarizing the crimes of the counterfeiters, the governor observed that there was no provincial statute that rendered the production of counterfeit province notes and private bills of exchange and notes a crime per se; the only applicable statute available for such cases regarded forgery, which Bernard claimed that when “compared with the mischief [was] little better than none.” After criticizing the limited extent of the province laws and mild penalties afforded by them, Bernard proposed to recall all treasury notes in circulation and reissue them concurrent with the implementation of English laws on counterfeiting money instruments; Bernard concluded that enacting English counterfeiting laws for both English and other current coins would be “a terror to evil doers.” But amidst Bernard’s sermon on counterfeiting lurked a statement that gave “the head of the Confederacy” an opportunity: “In this country,” Bernard commented, “where it is impossible to have a general currency of English money, such foreign Coin as is current by Law and is become legal tender is substituted in the room of the English coin, and the whole force of the reason of the penal Laws that has been applied in England to punish and prevent the counterfeiting the English Coin is equally applicable here to the common coin, whether English or Foreign that is current within the Province.”
The House debated Bernard’s message for a day, and then passed a series of guiding resolutions to be reproduced in proper form by a drafting committee led by the two Otises. One the other side, the Council submitted bills that were poorly drawn, and then after a bout of futile objections, finally deleted a provision implementing capital punishment for counterfeiting at the insistence of the House. But the House bills incorporated provisions considered objectionable to merchants such as Thomas Hutchinson, who had made a small fortune on the arbitrage of money instruments: the explicit acknowledgement of foreign gold coins as legal tender valued at predetermined and constant pound and shilling equivalents. A joint committee session lead by Jemmy Otis and Chambers Russell for the House and Hutchinson and James Bowdoin for the Council failed to produce a compromise. A battle of amendments continued for six days without a negotiated compromise. After sixteen days of political warfare, the frustrated governor conceded the obvious: “After more than a fortnight spent in fruitless debates,” he announced, “I find myself obliged to prorogue this General Court without anything effectual being done.” So activity in the General Court was again suspended.
But Bernard was sadly mistaken if he thought the Popular Party would waste the opportunity to officially meet on but one issue. On Wednesday November 18, the Superior Court occupied the Council chamber to entertain final arguments in the writs of assistance case – the Petition of Lechmere now titled Paxton’s Case. As in February, Otis and Thacher opposed the writs, but now Gridley had Robert Auchmuty, Jr. as an assistant. John Adams, though just admitted to practice before the Superior Court, did not attend, but Josiah Quincy, Jr., a Harvard junior committed to the law, was present and took notes. From Quincy’s observations the arguments appeared similar to those offered at the first hearing. Thacher made his argument more precise, emphasizing the divergence between Exchequer practice in England with its integral oversight of the customs officers and the practice in Massachusetts that lacked protections against exploitation of the broad powers a writ holder wielded. Quincy reported that Auchmuty added little, while Gridley remarked that “Quoting history is not speaking like a Lawyer. If it is the Law in England, it is law here.” Clearly the remark was directed at Otis, and Otis’s argument clearly indicated that the courts should reject the writs, regardless of whether Parliament made them law in England.
The Court now had a response from Bollan, but it was irrelevant because the court never could practically prohibit the issuance and employment of the writs. Tellingly, the court discreetly issued Paxton’s writ two weeks later, but the “combination of Merchants” wouldn’t let the issue quietly die. On January 4, 1762, the Gazette resurrected the subject of general warrants in an article that opened with “so great a lawyer as the Hon. Mr. H_tch_ns_n” – who was, of course, no lawyer at all – and concluded by warning that “such [customs] officers” with the “uncontroul’d power” of the writs of assistance could not be trusted; the article propelled the case from the court rooms to the coffee houses of Boston. The writs amounted to unchecked, unbalanced power, and as such were the instruments of tyranny. The author was anonymous but was almost certainly Jemmy Otis.
The legal decision proved nearly immaterial to the narrative arc; the people were being introduced to the argument that their government was working against them while the customs establishment was regulated more tightly, expenses were no longer being paid out of the people’s account, and customs officials had to significantly diminish the previously strict rules of enforcement. The youngest Otis brother, Samuel Allyne, reported back to Joseph in May 1761 that Thomas Hancock now had no problems smuggling in Madeira wine, and Boston’s printing presses proved that the Courts and the Town House would not be the lone venues for airing grievances.
Meanwhile, the problems of counterfeiting and the valuation and status of gold coins were unresolved; the nature of the argument became clearer after Bernard suspended the Assembly, and the battle moved to the newspapers. Unpredictably, it was the usually reserved Lieutenant Governor Hutchinson who drew first blood in what Jemmy called a “personal Challenge.” Hutchinson explained his reasoning in a letter dated December 14, 1761 written to his friend and province lobbyist William Bollan:
The House passed a Vote for making gold a lawful tender at the rate it passes. This would drive away our silver and eventually depreciated the Currency. I stood in the front of the opposition and it was with great difficulty the Council was kept from concurring and I am afraid of the next sessions as the Govr. at present is not sensible to the ill consequences of the proposal. If it should succeed I look it to be the first step of our return to Egypt. I think I may be allowed to call myself the father of the present fixed medium and perhaps a natural biass in favour of it. However I ventured to give my reasons for my conduct in print and if I am in error I should be glad you would let me know it.
It is remarkable that Hutchinson had to employ such efforts to maintain the governor’s and council’s allegiance; apparently, the House’s committee, led by the Otises, had been powerfully persuasive and to Hutchinson’s dismay the oligarchy had difficult holding firm. And what he labeled his “biass” for “fixed medium” was more of a decade old fixation that presented Jemmy Otis and the Popular Party a breach to exploit. Hutchinson’s initial salvo appeared on the front page of the Boston Evening-Post on December 14, 1761 and was a dexterous and cogent presentation of an intricate topic. Hutchinson argued that silver was being rapidly drained from New England due to the complexities of exchange and an unintentional overvaluation of Portuguese gold johannes under a 1750 statute. Establishing gold as legal tender at its then inflated rate would only serve to exacerbate the current currency situation and a devaluation of gold was required to slow the silver outflow; he further explained that “Two metals as gold and silver cannot be the measure both together, and be both a fixed measure, because they are frequently changing their proportion.” His argument recapitulated his own efforts to reform Massachusetts currency in 1749-1750, and he also recalled England’s 1696 “Great Recoinage,” directed by John Locke’s unyielding monometallist theories, and thus closely followed Locke’s theories in urging that silver be established as the “invariable standard,” with a predetermined valuation of pounds to silver bullion. In contrast, gold coins would be considered a commodity and free to fluctuate in value according to market price. England and Massachusetts attempted to regulate this potential for fluctuation by placing maximum valuations on gold coins, but in all cases the par valuation had been set at the maximum valuation, thus resulting in overvaluation. And so Hutchinson argued for gold’s devaluation to correct the imbalance and thus had to reject gold as legal tender valued at a fixed rate. The logic was sound, but he
made his position increasingly politically unfeasible by sermonizing: “The plenty of money has produced luxury, luxury naturally tends to poverty, poverty will produce industry and frugality, industry and frugality will lessen the proportion of imports to exports and will bring money among us.”
Only a man of the oligarchy could find Hutchinson’s economic morality tale acceptable policy, and Hutchinson’s analysis marked him as an aristocratic Englishman, whereas Jemmy Otis was progressively neither. Otis’s reprisal in the Gazette on December 21 and 28, 1761 was swift and brutal. Jemmy opened with piercing mockery:
A General Officer in the Army would be thought very condescending to accept from, much more to give a Challenge to a Subaltern. The Honour of entering the Lists with a Gentleman so much one’s Superior in one View, is certainly very tempting; it is at least possible that His Honour may lose much, but from those who have, and desire, but little, but little possible be taken away.
Jemmy responded to Hutchinson’s aristocratic Englishman mien with something that was clearly quite the opposite and as yet undefined. The consciousness of New Englanders had usually consisted of English conditional opposition – opposition to lords and bishops – but on the condition that they were nevertheless English; but now Jemmy seemed to be striking at the few threads that still tied the New World to the Old. After heaping scorn on the concept of deference, Otis defended the brave few who had “the resolution to think and act for themselves” though doing so entailed “opposing the Leviathan in power, or those other overgrown Animals, whose influence and importance is only in exact mathematical proportion to the weight of their purses.” Otis continued to drub the oligarchy and the concept of deference for almost three columns, expanding on his theme that the government was controlled by beasts whose power is derived solely from their wealth. He launched an assault on the Hutchinson and Locke monometallist theory that promoted silver as standard coin and gold as commodity to fluctuate in value with market conditions. Jemmy asserted that gold should be legal tender “provided it be set at a proper rate.” He dreaded that a gold valuation determined by freely floating market prices would enable very wealthy speculators to increase gold prices beyond what most could afford and thereby essentially create two classes of currency.
Jemmy reminded readers that Hutchinson had confessed to errors in the act of 1750 and “only it seems strange that there would be any mistakes in this Act, considering the great abilities of the gentleman, who at the time of making it, ruled our Councils, and was the Prime Conductor of all our public affairs.” Of course, the Colonel was instrumental in getting the 1750 act passed in exchange for a clarification on the statute of limitations which helped Jemmy’s legal career, but it was increasingly clear to all that Jemmy Otis was not marching in his father’s footsteps; the Colonel had been the epitome of the compromising politician and had worked for years in a productive relationship with Hutchinson, the Olivers and whatever governor was in office at the time. It would seem that a fiery break with the oligarchy would strain his relationship with his father.
In his second article, Jemmy addressed a subject almost entirely overlooked by Hutchinson: the legal issue of provincial currency. Jemmy observed that Governor Bernard’s initial affirmation of gold coin as legal tender was correct, and that the legitimacy of such coins ought to be affirmed by statute. Next Jemmy examined how a maximum valuation for gold was de facto its legal valuation, thereby demonstrating that the province had set a fixed gold value. In ending, Jemmy verbally smirked at Hutchinson’s aristocratic homily. Hutchison’s solution to the debt problem was to devalue currency and consume less, but Otis dismissed these prescriptions as high Tory notions that depended on a “wheel of fortune” that only the very wealthy would consider desirable. Hutchinson believed the colonists lived “too well” but Otis countered that “I do not think they live half well enough.” Otis argued that Massachusetts should improve its economy not by reducing imports, as Hutchinson argued, but rather by increasing exports, observing that the province was mired in an absurd dilemma by still requiring imported wheat. In order to improve the debt problem, the province should focus growing the economy. Instead of fretting over luxury imports, “a very vague & loose term,” the province should establish a bounty for domestic wheat and encourage local production of all necessities. Otis’s arguments were persuasive in the House; a bounty for locally grown wheat was enacted during the next session.
Hutchinson’s next article appeared in the Evening-Post the following week, on January 4, 1762. The Lt. Governor and Chief Justice of the Supreme Court began with a view of the oligarchy: “One would think that when members of a society by such enquiries are honestly pursuing a common interest, a difference in sentiments could give no just cause of offense.” Members of the oligarchy didn’t always share the same opinions, but they always shared the same goal: increasing their power and wealth. Hutchinson began to suspect that Jemmy Otis didn’t share that goal. Hutchinson then reminded readers that in the great 17th century pamphlet debate between Locke and William Lowndes, Secretary to the Treasury, the adversaries “treated one another with great delicacy politeness” despite a “contrariety of opinion.” He next proceeded to develop a monetary history of Massachusetts from the perspective of an oligarch, blaming payment in commodities – “country pay” – for the province’s one-third overvaluation of English currency. Hutchinson concluded that since creditors will always be a minority and “in democratical governments generally there will be bias in the legislature to the number rather than to the weight of the inhabitants,” overvaluation was unavoidable. So for Hutchinson, the source of currency problems was democracy itself because the majority will always be debtors, and that majority will also produce “bias in the legislature.” By implication, Hutchinson suggests that such “bias” would be resolved if only citizens were represented by their “weight” – that is, their wealth. Hutchinson is typically reserved and politically savvy, so his tone deaf analysis of “bias” reveals a man of such aristocratic disposition that he can’t hear the feudal leitmotif that ladens his position. The irony was certainly lost on Hutchinson when he concluded with a plea for reasonableness:
I differ in sentiments from some whom I greatly honour and esteem, but as I know their views are as disinterested as my own, it shall never lessen the respect and value I have for them. I wish I had met with the same candor in such as profess to differ from me, and have thought fit to publish their thoughts on the subject.
Hutchinson purposefully never mentions Jemmy Otis or the Gazette article in which he was ruthlessly assailed. Hutchinson wrote to his friend William Bollan on January 11, 1762, a week after his “bias” article appeared:
A Bear a successor of Jemmy Allen undertook to answer me but discovered so much brutality that my friends advised to make no reply and to publish something further on the same subject to show that I took no notice of him. I send it to you inclosed. … The town is full of contention.
The “Jemmy Allen” referenced is James Allen, a wealthy Boston merchant known for his incorruptibility and independence. Jemmy Allen rose in the House along with Hutchinson in the 1740s, and when Hutchinson was Speaker from 1746-49, Allen energetically filled the role of chief antagonist to the “friends of government,” which at the time included the Colonel. While Allen was considered intelligent and fiercely honorable, his hostility to the Speaker and Governor compelled the House to eject him in 1748. The people of Boston enthusiastically re-elected him, but the House refused to seat him for months. Allen was eventually permitted to take his seat and commanded 73 committee appointments. The oligarchy realized they could not minimize his influence through elections so instead relegated him to obscurity in the House; just four years later, Allen’s 73 committee appointments shrank to 49 while the “friends of government” dominated committee work; the Colonel had 86 committee appointments, Samuel Welles 100 and Samuel White 108. In the private letter to Bollan, Hutchinson recognized Jemmy Otis as another James Allen, wildly po
pular and fiercely independent. Similarly, Hutchinson would know that a “democratical” government could not fix Jemmy Otis, and so he would either need to be co-opted into the “friends of government” or relegated to obscurity in the House. The problem, of course, was that Jemmy’s father, as Speaker, set the agenda and largely controlled committee appointments.
