Arsonist: The Most Dangerous Man in America

by Nathan Allen

  Hutchinson and the Olivers were perfectly aware of Otis’s efforts to move Massachusetts power away from the oligarchy; the oligarchy fought back in many ways, large and small. So while the war over whether the colonies would be an extension of the Old World or something entirely new occasionally witnessed major battles, most of the war was composed of small skirmishes. For example, in an effort to put more distance between themselves and commoners and to Anglicize the courtrooms, Chief Justice Hutchinson instituted the arbitrary rank of “barrister” at the August term of the Superior Court in Boston and those twenty-six lawyers who were selected for the new rank “appeared accordingly this Term in Barrister’s Habits.” The “Habits” included “Gowns and Bands and Tye Wiggs.” The chief justice’s efforts to make the court more formal and regal was certainly a strike at those who wished to create distance between the colonies and England, but it was also a part of a larger wave of Anglophilia sweeping over the outskirts of the Empire. Colonial newspapers regularly recounted royal events, and the King George’s birthday was marked with cannon fire. Royal emblems and full-length portraits of Charles II and James II were being affixed to public buildings. In courtrooms, the justices’s benches were being raised so that they peered down onto the courtroom; and two years after Hutchinson Anglicized the Boston courtrooms, the New York Supreme Court passed similar measures. So Otis’s criticisms of Parliament steered clear of the Crown, and it probably seemed that each effort Otis made was rejoined with regalia.

  Otis argued several cases that term including Dudley v. Dudley et al. and Oliver v. Sale. The Dudley case concerned an analysis of Governor Dudley’s will in which an ambiguous statement could be interpreted as creating a fee simple or an entailed estate. Jemmy had some previous experience with fee simple and entailed estates and other vagaries of real estate law, particularly in cases such as James Otis, Junior v. John Turner, and he and co-counsel Gridley argued that Dudley’s will created a fee simple in his son William, not an entailed estate. Entailed estates were a common law feudal creation that enabled estates to be passed down to heirs as a single unit, which the heirs are unable to sell, divide or otherwise alienate from themselves. It was a legal structure that ensured that entire estates remained within a family for generations and kept real estate from being divided into smaller parcels that middling class persons could afford. “Fee simple” real estate is the common legal structure in the modern world whereby real estate may be sold to anyone, divided, leased, used as collateral, and mortgaged. Jemmy made the forceful argument that public policy and the general nature of the colonies disfavored the feudal structure of entailed estates and that the courts ought to favor the more dynamic and less limiting concept of fee simple. His argument was countered by Benjamin Kent and Attorney General Edmund Trowbridge who supported the fee tail interpretation. The court sided with Otis and against entailed estates, which was another small step away from feudalism.

  Oliver v. Sale was one of the early interesting cases addressing the uncommitted Massachusetts attitude toward slavery. According to plaintiff Oliver, defendant Sale had sold to him two mulatto boys “as slaves” but who apparently were in fact “free.” At which point Oliver sued Sale for deceit, and Otis represented defendant Sale; Thacher represented Oliver. Jemmy submitted evidence showing that Sale had refused to sell the boys “for Slaves” but only transferred whatever rights to their “service” he may have had under an ambiguous oral indenture. Thacher replied that though slavery might not have been the issue per se, there was nevertheless a breach on Sale’s part of an implied warranty that some service was due – otherwise, for what did Oliver pay? Otis won in every regard: the boys went free, Sale kept the money, and Oliver received a bill for costs and attorney’s fees. The logic of Otis’s developing political theory would cause him to soon address the slavery issue outside of the courtroom.

  At the same time, Thomas Hutchinson was taking a “vacation” by going on circuit to Falmouth, Maine. He wrote the recently dismissed Bollan that he “was glad to get out of the way and shall be so until the Influence of Mr. Otis and men of his disposition is lessened,” a reference to the efforts of a House newly controlled by the Court Party. The political tumult had subsided, and most of the political agitators were busy in the court, but the tranquility of the summer was deceptive, as Oxenbridge Thacher guessed; in a 1762 letter to Prat, Thacher wrote: “We seem to be in that deep sleep or stupor that Cicero describes his country to be in a year or two before the civil wars broke out. The sea is perfectly clam & unagitated whether this profound quiet be the forerunner of a storm I leave to your judgment.”

  With betrayal in the air and Court Party lackey Ruggles as House Speaker, it was simply a matter of time and circumstance before a storm erupted. A rumble of thunder growled in the distance during a short session of the Assembly that Bernard apologetically called for September 8th to attend to General Amherst’s regular request for more troops; but again the hapless governor unintentionally provided the breach Otis needed. The Salem and Marblehead fishing fleets had panicked in June at the rumor of a French pirate ship operating near Breton and had requested government action. The provincial navy’s main ship, the King George, was sailing to Newfoundland so Bernard, with the advice of the Council, had engaged the province sloop Massachusetts to search for the French pirates at an expense of £100. Bernard assumed that the House of Representatives would promptly approve an expenditure to protect the provincial fishing fleet from French pirates. But Bernard was long on naïve assumptions and short on memory because this identical issue had triggered a lively dispute the previous year before Otis’s principled objections were overcome by practical expediency. Bernard’s logic was simple: the cost of calling an emergency session to secure an appropriation in advance would hardly have been justified. This explanation was irrelevant to a House stirred by Jemmy’s principled arguments about rights and separation of power, as was patent in the response Jemmy drafted, which was read aloud in the House:

  Justice to our selves, and to our constituents oblige us to remonstrate against the method of making or increasing establishments by the Governor and council.

  It is in effect taking from the house their most darling priviledge, the right of originating all Taxes.

  It is in short annihilating one branch of the legislature. And when once the Representatives of a people give up this Priviledge, the Government will very soon become arbitrary.

  No Necessity therefore can be sufficient to justify a house of Representatives in giving up such a Priviledge; for it would be of little consequence to the people whether they were subject to George or Lewis, the King of Great Britain or the French King, if both were arbitrary, as both would be if both could levy Taxes without Parliament.

  Had this been the first instance of the kind, we might not have troubled your Excellency about it; but lest the matter should grow into precedent; we earnestly beseech your Excellency, as you regard the peace and welfare of the Province, that no measures of this nature be taken for the future, let the advice of the council be what it may.

  Reportedly, when the italicized portion was read, Representative Paine from Worcester declared, “Treason! Treason!” Some charged that Otis’s remonstrance was evidence of “disrespect” toward the crown, and still others went further with “seditious, rebellious and traitorous,” words that would be whispered by the oligarchs about Jemmy Otis from that day in September 1762 up until his death. Governor Bernard demanded that the part about King George being no better than King Louis if he ignored parliament be expunged from the records of the House; and, of course, with the faithful Ruggles as Speaker, the offending passage was deleted. On Saturday, September 18, Secretary Andrew Oliver presented himself at the door of the House chamber with a memorandum from the governor in “vindication” of his order to send out the province sloop prior to receiving appropriation from the House and then informed Speaker Ruggles that the governor “directed the attendance” of the House in the Council chamber. Realizing
that the governor intended to suspend the General Court, Jemmy Otis quickly proposed two motions, one to print the governor’s message in the House Journal so that it became part of the official record, and the other to appoint a committee to “prepare a reply” once the session was suspended. Both motions passed by a “large majority,” but Ruggles took a play from Hutchinson’s old playbook and appointed himself committee chairman along with Jemmy Otis and Royall Tyler. As Otis predicted, Bernard suspended the session, hoping to avert any further debate about “priviledge” and “right.”

  Bernard’s “vindication” affirmed that it was the House’s right to originate money bills, but he claimed there were two exceptions: the governor and Council had the lawful ability to issue money from the province treasury, and they could issue money without House approval in cases of urgent public necessity or very small amounts. Therefore, Bernard concluded, the deployment of the Massachusetts was wholly appropriate. Jemmy Otis was enraged by the governor’s exemptions to the House’s rights, his sanctimonious demeanor, and the tactic he employed to ensure that his position would be the final word. In a letter to Jasper Mauduit written on October 28, 1762, Otis revealed his anger at the oligarchs:

  The Governor very reluctantly consented to the choice [of Mauduit]. A dissenting agent is a bitter pill to an Oxonian, a bigot, a Plantation Governor, whose favorite plans are, filling his own pockets at all hazards, pushing the prerogative of the crown beyond all bounds, and propagating high church principles among good peaceable Christians. Perhaps you may wonder at this after the hopes I expressed in my first letter that we should make a convert of the Governor but we are now convinced he is gone.

  In the same letter, Otis elucidates the problem for Mauduit; the power brokers are:

  the Shirlean faction, a motley mixture of high church men, and dissenters who, for the sake of the offices they sustain, are full as high in their notions of prerogative as the churchmen. At the head of this party is the Lieutenant Governor who by the superficial arts of intrigue, rather than by any solid parts, by cringing to Governors and pushing arbitrary measures, has so far recommended himself to mr. Shirley and to our present Governor that by their means, tho’ he was bred a merchant, he is now President of the Council, Chief Justice of the Province, Lieut. General and Captain of castle William, the Capital fortress in the Province, [and] Judge of the Probate of Wills for the County of Suffolk, the first County in the Province. Besides this he has filled the Supreme Court of Judicature with his friends, and the other Courts with his relations and dependants. How incompatible these offices are I need not tell you. ... Mr. Bernard was and I believe now is against Mr. Hutchinson, the Lieutenant Governor, from the motive of fear, lest he might thereby obtain the Government. He was for Mr. Jackson … The Lieut. Governor had made himself dreaded by his enormous strides in power, … [and] are firmly resolved to have Mr. Bollan or anybody else rather than a dissenter.

  Otis was privately wondering whether Bernard could be manipulated and recognized that while Bernard may not side with the Popular Party, the anxious Governor feared Hutchinson, thus presenting the possibility that the Court Party could be turned against itself. But as had been the case during the currency controversy, the suspension of the General Court forced political arguments into the public sphere. Otis was not content to permit Bernard and “the prerogative of the crown” to dictate the possibility and pace of debate and would not wait for the third session of the General Court scheduled for January. Further, he wished to expand his analysis of “most darling priviledge of the House” beyond that which would reasonably be contained in a newspaper article. And so the following month, on November 11, 1762, Gazette publishers Edes and Gill advertised “This Day Published” the first of James Otis’s pamphlets, A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts Bay, More Particularly, in the Last of the General Assembly. Despite Jemmy’s anger at the oligarchy for “pushing the prerogative of the crown beyond all bounds,” Vindication was temperate. In a preface Jemmy offers a basic philosophical position:

  The world ever has been and will be pretty equally divided, between those two great parties, vulgarly called the winners, and the loosers; or to speak more precisely, between those who are discontented that they have no Power, and those who never think they can have enough.

  Vindication begins by assembling the “record” of the Council and the House as contained in House Journal, including the House clerk’s notes regarding the expunged language about King George being no better than King Louis if he ignored parliament. Otis launched into ten premises from John Locke’s Second Treatise of Government, including the natural equality of men, the rule that kings and governors serve “the good of the people,” the de facto arbitrary nature of governments, and that “the British constitution of government … is the wisest and best in the world.” These were ideas with which most would agree and established Jemmy’s credentials as a full supporter of the king and the British government. Jemmy assured his readers that “the house intended nothing disrespectful of His Majesty, his Government or Governor.”

  Otis then argued that it was the constitution under which a king ruled rather than his “christian name,” and thus to compare “George” to “Lewis” was a complimentary means of comparing the lives of “British subjects and the slaves of tyranny.” Otis expanded on the theme:

  The first question that would occur to a philosopher, if any question could be made about it, would be whether the position were true. But truth being of little importance with most modern politicians, we shall touch lightly upon that topic, and proceed to inquiries of a more interesting nature.

  That arbitrary government implies the worst of temporal evils, or at least the continual danger of them is certain. That a man would be pretty equally subjected to these evils under every arbitrary government, is clear. That I should die very soon after my head should be cut off, whether by a sabre or a broad sword, whether chopped off to gratify a tyrant by the Christian name of Tom, Dick or Harry is evident. That the name of the tryant would be of no more avail to save my life than the name of the executioner, needs no Proof.

  The assertion was simple but novel: of primary importance was the constitution of the government not the people in the government. And further, the legitimacy of any government rested not in the names or labels affiliated with the government but rather in whether its actions were consensual or arbitrary. Jemmy then turns with biting sarcasm to the concepts of “indelicacy” when addressing “superiors” and the entire structure of the feudal hierarchy.

  Some fine Gentlemen have charged the expression as indelicate. … The idea of delicacy in the creed of some politicians, implies that an inferior should at the peril of all that is near and dear to him (i.e. his interest) avoid every the least trifle that can offend his superior. Does my superior want my estate? I must give it him, and that with a good grace, which is appearing, and if possible being really obliged to him that he will condesend to take it. The reason is evident; it might give him some little pain or uneasiness to see me whimpering, much more openly complaining at the loss of a little glittering dirt. I must according to this system not only endeavour to acquire my self, but impress upon all around me a reverence and passive obedience to the sentiments of my superior, little short of adoration. Is the superior in contemplation a king, I must consider him as God’s vicegerent, cloathed with unlimited power, his will the supreme law, and not accountable for his actions, let them be what they may, to any tribunal upon earth. Is the superior a plantation governor? he must be viewed not only as the most excellent representation of majesty, but as a viceroy in his department, and quoad provincial administration, to all intents and purposes vested with all the prerogatives that were ever exercised by the most absolute prince in Great Britain.

  There would be no “Honoured Sir” from Jemmy. With respect to the “indelicacy” of the rebuke by the House, Jemmy struck at the heart of those oligarchs who required “passi
ve obedience” from the masses:

  The votaries of this sect are all Monopolizers of offices, Peculators, Informers, and generally the Seekers of all kinds. It is better, say they, to give up any thing, and every thing quietly, than contend with a superior, who by his prerogative can do, and (as the vulgar express it) right or wrong, will have whatever he pleases. For you must know, that according to some of the most refined and fashionable systems of modern politics, the ideas of right and wrong, and all the moral virtues, are to be considered only as the vagaries of a weak or distempered imagination in the possessor, and of no use in the world, but for the skilful politician to convert to his own purposes of power and profit.