by Nathan Allen
The final installment of Hutchinson’s currency lecture appeared in the Evening-Post the following week on January 11. The same issue carried an article by a Hutchinson ally, “Y.Z.,” who attacked Jemmy Otis with gusto but without Hutchinson’s high Tory elitism. “Y.Z.” was James Bowdoin, a fellow council member who later became a leading Hutchinson enemy and the second governor of the post-Revolution Commonwealth of Massachusetts. But in 1761-1762, before his break with the friends of government, Bowdoin was to defend the oligarchy against scurrilous attacks. Bowdoin started with a condemnation of Otis for indulging personal attacks. Regarding the content of the debate, Bowdoin supported Hutchinson’s conclusions regarding gold’s overvaluation, but he tepidly agreed with Otis’s legal point that gold had been and should be in effect lawful currency. Bowdoin asserted that gold had a fixed rate of exchange in practice, so there was no need to formalize that fixed rate by legislation.
While Otis often sought to attach faces to his opponents’ arguments, he also often attempted to disconnect himself from the issues and let the arguments stand on their own, thus obscuring the target for his opponents. For this reason he claimed to represent the people in the Petition of Lechmere case, not the merchants who wanted general warrants quashed, and he published his articles anonymously. Expanding his efforts to disconnect his positions from himself, he enlisted Oxenbridge Thacher to launch the newest attack against the oligarchy. Thacher printed a pamphlet in January 1762, after the publication of Bowdoin’s piece. Thacher’s pamphlet began with reprinting Hutchinson’s article and then proceeded with a legal argument the echoed Otis’s, rebutting Bowdoin’s observations in the process. Thacher’s pamphlet dismissed Hutchinson’s and Bowdoin’s academic remarks about the international currency markets and concluded with the observation that Portuguese gold johannes had been and continue to be valued at the maximum rate of 48 shillings. Thacher argues that formulizing a rate that already exists in fact would offer currency fluctuation protection to debtors.
Thacher then launched a new attack that would assail that prerogative of the members of the oligarchy: plural office-holding. Thacher had published an anonymous pamphlet the year before on the subject, but now the attack was much more fierce and direct; Otis had clearly provided the blueprint for how the oligarchy would be dismantled. “A Judge,” Thacher wrote, “should be ever unmixed with all these political quarrels, that in such a State as ours, must be expected to arise.” And yet Chief Justice Hutchinson was publically debating an unsettled politico-legal question. Plural office-holding was a ripe issue; it had been simmering below the surface for years, and Hutchinson and the Olivers were conspicuously guilty. Many worried that it was corrupting the government, and it was an obvious result of the oligarchy seizing power as most major government offices were held by increasingly few people. Otis knew it would be a theme that would resonate with the common people and would bog down Hutchinson and the Olivers in defensive positions while other attacks were being launched. Otis also knew his own father was just as guilty as anyone.
While the oligarchy was being attacked for multiple office-holding, Otis fired a salvo from an entirely different approach. In an article that appeared in the Gazette on January 11, the same day as Hutchinson’s second currency lecture, Otis applied Montesquieu to Hutchinson’s observation about “numbers” and “weight” in a “democratical government.” Jemmy concluded that “mixed” government was ideal but cautioned that “It may happen in governments framed after this model, that in consequence of art and corruption, half a dozen, or half a score men will form an oligarchy, in favour of themselves; an aristocracy in favour of their families and friends.” If Thacher’s article wasn’t clear enough, Otis just clarified it: Massachusetts was ruled by a corrupt oligarchy.
And in a special supplement to the January 11 issue of the Gazette, Jemmy brilliantly summarized the entire debate in two pages, complete with sarcastic deference to Hutchinson and a fierce attack on “Mr. Y.Z.,”
I have suspected more than once whether this Mr. Y.Z. by his unmannerly and vulgar insinuations of a lawyers wilfully misrepresenting facts, and dealing in quibbles, mayn’t be some leering assurance broker, piping hot from a counting house, by his scurrility against the profession and divine science of the law, expects soon to be deemed a very fit candidate for preferment.
The “assurance broker” to whom Otis referred was Foster Hutchinson, the lieutenant governor’s brother and head of Jemmy’s class at Harvard. Of course, “Mr. Y.Z.” was Bowdoin, but Otis didn’t know. Otis continued to the issue of plural office-holding as “Mr. Cooke, the Cobbler” – Jemmy’s term for the average man – might not get energized over international currency debates, but he could be angered by the thought that a small group of men might “form an oligarchy” to enable “an aristocracy in favour of their families and friends.”
Robert Treat Paine, who would later be the prosecutor in the trial of the British soldiers in the Boston Massacre, a signer of the Declaration of Independence, and a representative to the Continental Congress, wrote a letter to fellow Massachusetts lawyer Jonathan Sewall on February 17, 1762 about the simmering war. Asked by Sewall which side he takes in the “political controversies,” Paine replied, “The right side.” That seems non-committal. And when asked about the writs, Paine said he “Never was more in need of them. I shall soon apply for one to get a help meet.” This was a joke; Paine had just been rejected for marriage and was supposing that a court warrant would help him secure a wife. But when asked about his opinion of Thomas Hutchinson, he referenced the Old Testament and observed that no man can know everything because no man is immortal, clearly questioning Hutchinson’s sense of superiority. And Otis’s friend Thacher? Again, the Old Testament reference: “ … as a serpent in the way that biteth the horse’s heels, so that his rider falleth backward.” Otis was the horse, and Thacher was the rider; the serpent was Hutchinson, Bernard, and the friends of government. And Otis? He is a mirror that “burns up everything that cannot be melted.” Paine was politically astute and tread lightly on taking sides; he was no partisan in 1762, and yet he clearly identified Hutchinson as part of the oligarchy, the know-it-all serpent, and Otis as the arsonist, burning anything that could not be melted.
At the third session of the General Court of 1761-1762, Hutchinson had clearly lost the currency argument. After an extensive and at times pedantic debate, the Popular Party pushed through two acts that reformed the procedures for issuing province notes and established predetermined gold coin valuations according to the Otis-Thacher theory, and passed a comprehensive counterfeiting statute. The currency bills were too popular for even Bernard to ignore, so they became law. Bernard attempted to avoid alienating either side of the currency debates, and he certainly had no desire to anger the Otises again. But Bernard complained about the counterfeiting statute, saying “if you do not think proper to make counterfeiting the Treasurers Notes a capital Offense you had better not exact any punishment at all.” The petulant Bernard didn’t get everything he wanted, so he refused to sign the counterfeiting bill, and in sending the acts to London, he included a note to the Lords of Trade stating that the act establishing gold as legal currency “seemed unnecessary” as it merely acknowledged existing fact, but it was “very necessary to quiet the disputes in the Province.”
Otis’s legal attacks on the customs establishment depended in part on the supply of political fuel to keep them lit. One vehicle of attack comprised of the two Paxton cases was effectively stalled by the Superior Court. The Erving v. Cradock case had survived the Superior Court, but the prospect of defending an expensive appeal to the Privy Council tempered John Erving’s enthusiasm, and that case was settled. Barons departure for England caused his case to wither for want of a plaintiff. Otis realized that while the judicial system that was controlled by his opponents likewise protected his opponents, they were vulnerable to town politics and the printing press. In the former forum he could at best convince judges and juries, but in
the latter forums he could foment the support of the common people. Limiting himself to a jury of the few seemed inefficient when he could sway a jury of the many.
Otis also realized that the variety of issues that regularly confronted the House offered many possible weapons that could be employed against the oligarchy, and the currency controversy of the second and third sessions is one example of the options. In some cases the effect was direct and obvious, such as the legislative moves during the third and fourth sessions of Otis’s first term to launch an inquiry into the law that established the Superior Court of Judicature and to examine the jurisdiction and powers that it exercised. It was a direct challenge to the elite judicial branch from the lowly House, and the House committee conducting the investigation was also charged to ascertain the “utility” of restricting the justices’ commissions to “good Behaviour” rather than at the pleasure of the Governor and Council. Other direct attacks on the elite judicial branch were obvious: the usual Superior Court justice salary of £750 was reduced to £700, and the extra grant of £40 to the chief justice was ignored. When the justices formally complained about their decreased salaries, the House indefinitely postponed the matter just as the court had postponed Otis’s customs cases. The House was attempting to make clear that the justices served them, not the other way around.
One of Jemmy Otis’s 56 House committees was formulating a direct attack on the oligarchy in the form of a bill to prohibit the justices’ from serving in the General Court, and even the Council joined the frenzy in a bill sonorously entitled “An Act for the better enabling the Officers of his Majesty’s Customs to carry the Acts of Trade into Execution.” The bill for an “Act for the better enabling” was amended by the House and would have reduced the dreaded writ of assistance to a special search warrant issued on an oath that stated the source of the officer’s information – probable cause – and requiring a report back to the issuing agent. The House and the Council passed the act, thus indicating a significant fissure in the unity of the upper body. It also indicates the pressure the oligarchy was feeling by 1762 to pass legislation that the public perceived would curb the oligarchy’s appetite for power and control. The Superior Court justices on the Council returned fire as best they could by aggressively lobbying Bernard, and despite passing both legislative bodies, Bernard vetoed the bill. It was a brazen display of the power of the few supplanting the will of the many, and it was also a heady portent of the restructuring of power.
The Popular Party, led by Jemmy Otis, explored every avenue to diminish the oligarchy’s power. In January 1762 the Williams family of Hampshire County requested the immediate issuance of a charter for a “western academy” – later to be Williams College – in Hampshire County in memory of Ephraim Williams, a local landowner who was killed in the Seven Years War. The request was simple, but it presented the oligarchs, particularly Thomas Hutchinson, with a thorny dilemma. Israel Williams was a political ally and friend, but Hutchinson was an ex officio overseer of Harvard, and his fellow alumni indignantly opposed the establishment of a competing college in Massachusetts. So the lieutenant governor was carefully navigating these treacherous waters, and his inability to chaperone a small memorial through the General Court proved embarrassing. With the General Court at an impasse, Bernard proposed to issue a charter to the new college on his own authority. Otis then turned the issue into a constitutional debate; if the governor could issue such a charter without sanction from the House, then surely he could issue any charter without the House’s consent. On March 8, a meeting of ministers, the governor and lieutenant governor, and the president of Harvard convened to discuss the charter; the ministers were concerned that the new college would provide an opening for Anglican bishops to assert their authority. The product of the meeting was a memorandum of objections drafted by Jonathan Mayhew. Similarly alarmed, the General Court requested that Bernard withhold the charter, which he did. It was a small matter but part of Otis’s plan to assault and resist the oligarchy on every front possible, and it foreshadowed the ways in which the radical politicians and ministers could cooperate on shared issues.
Jemmy Otis’s next maneuver may at first seem minor, but it was the first in a long line of actions that would confound both his contemporaries and historians, and yet it was precisely this line of masterful manipulation that eventually ruptured the body politic and enabled the revolution. By 1762, Bernard feared the Otises and certainly had no interest in provoking the “Confederacy.” Hutchinson and the Olivers were annoyed, perhaps angry, but fearless. Further, Bernard was paranoid that Hutchinson desired the governorship. As the two parties – the suspicious fearful governor on one side and the grasping self-assured Hutchinson and Olivers on the other – differed in their views of the Otises, Jemmy took the opportunity to begin a prolonged and aggressive effort to drive a wedge between them.
As the war with France was ending, there was much agitation to draw new boundaries for Maine, Nova Scotia, and other points north, and there would be much interest in attracting settlers to those newly acquired lands. Conveniently, in January 1762 – the same time that Hutchinson was being assaulted in the currency wars and the Williams charter – Colonel Otis appointed his son to a committee to “select some Method” of establishing these new borders. Also conveniently at the same time, Governor Bernard was seeking financial help to cover the costs of securing his two commissions as Massachusetts governor, the original one of 1760, and the new one required after the death of George II. The House had just cut Hutchinson’s salary as chief justice, which Hutchinson reasonably assumed Jemmy Otis had orchestrated. And now to drive the wedge between Hutchinson and Bernard, Otis supported and pushed through an enormous and likely profitable land grant for Bernard.
Jemmy proposed and convinced the House to support a grant of Mount Desert Island to Bernard; at 108 square miles, the island off the coast of Maine is the second largest island on the East Coast, after Long Island. Bernard could use the land to generate income and attract settlers to the north. He was elated and began to assail English officialdom with letters attempting to secure the compulsory royal approval. So at the same time that Jemmy pushed through a pay cut for Hutchinson, he orchestrated a significant land grant for Bernard. Some would be confused as to the reason Otis would be so generous to Bernard. The answer was that a land grant did not cost the Massachusetts tax payer anything, and it certainly gave Bernard pause to reconsider his alliances; perhaps Jemmy Otis wasn’t so bad and perhaps the Popular Party and Boston bench were right about Hutchinson – after all, Bernard already had his own suspicions about Hutchinson’s motives. That pause would enable Jemmy Otis to manipulate Bernard for some very substantial gains. The Mount Desert Island grant was a move of such manipulative genius that it almost certainly was conceived with the assistance of that political veteran Colonel Otis.
The next target for the popular party was William Bollan. Jemmy Otis was quite aware that Bollan and Hutchinson carried on an extensive private correspondence, and when Bollan, at Hutchinson’s request, produced the verification of the English use of writs of assistance, his career as agent was finished. Bollan was Governor Shirley’s in-law and protégé and had served as Massachusetts agent since 1745. He was an informed and effective agent, but after 17 years of service he was perhaps not quite as vigorous in executing his duties. He commanded a small salary, which at times wasn’t even paid, but he often deducted commissions from grants he had coaxed out of Parliament and a parsimonious Treasury, a practice that was typical and to be expected. But Jemmy and the Boston bench often asked questions not previously asked, and to them the commissions should neither be typical nor expected. Bollan had been briefly dismissed in 1760, but there was no consensus on a replacement so he remained province lobbyist. But Jemmy Otis and the Popular Party had grown in numbers and organizational ability by 1761, and they had developed a strategy to strike at Bollan during the recess between the third and fourth sessions of the House. Hutchinson sent a warning to Boll
an on March 31, 1762: “I have observed for some time the heads of a clan very busy and am satisfied they have some scheme projecting for the next session and am not without my apprehensions that you are the subject of it.” Just as the defenseless Paxton had been warned about an impending assault, so too were Hutchinson and Bollan entirely cognizant of what was to befall them and yet utterly incapable of preventing it.
As a typical mid-April House session was ending and the representatives were preparing to go home, with no notice or prior debate, a motion was made to dismiss Bollan as province lobbyist; according to the Otises, Bollan’s transgressions included his membership in the Church of England, taking commissions from province money, and private communication with oligarchs. The motion was hurried through by Speaker Otis who then appointed this son and two others to draft “a proper vote.” The draft of the “proper vote” was presented with unusual speed, as if it had been coordinated in advance, and the vote was formally consummated the same day. To an uninformed observer it perhaps seemed like a one-act mystery play with the deus ex machina conveyed to the stage by Jemmy, but after so many viewings of Jemmy’s stagecraft – in the courts, the papers, the pamphlets, and the halls of governance – Hutchinson was familiar with such theatrical tricks. He provided Bollan with a synopsis later in the week, writing on April 24, 1762, “My suspicions were well founded. Monday last the House sent up a vote to dismiss you from the Agency. I made what opposition I could but the Terror of Election which is just at hand prevailed over all other considerations and 11 votes carried it, against 10, for a concurrence with the house. Two lawyers of the same name carry all before them in the house. …” Hutchinson was fixated on the problems with democracy – “the Terror of Election” – but the core issue was not “Election” in itself but rather a seeming disregard for proper deference by those elected. Hutchinson had witnessed this before in Jemmy Allen, the representative whose independence and sarcasm seemed so out of place in the late 1740s, and knew how to address the problem.
