by Nathan Allen
Less than halfway through the pamphlet, Jemmy had disregarded one’s name and the system of deference and championed the importance of a constitution and promoted individual – perhaps rebellious – thinking. Mocking the oligarchy was by now a common Otis theme; he had elevated Kidd’s crew saluting the Royal Navy with their derrières to a philosophical position.
Otis reluctantly admitted to the truth of Bernard’s contention that the governor and the Council had the authority to issue funds from the treasury, and he referenced previous instances of the House concurring with such issuances. But he correctly maintained “that without the aid of an Act of the province, the Governor and Council cannot legally take a shilling out of the treasury, let the emergency be what it may.” Otis then asks, “But the Question is, Whether this power be limited?” He responds that this power is strictly limited by the charter to “such Acts as are or shall be in force within our said Province.” If the governor illegitimately issued money, then what remedy was available? If the executive ignored the requirements of democracy, what could the people do in response? The governor could not be sued in the courts, so a rebuke in the House was the only action available. If that failed to stop the governor’s actions, then the House could “stop a few Grants and Salaries,” thereby depriving the governor of money. And if that did not “bring matters right,” then there was the “last resort, but one; … a dutiful and humble remonstrance to his Majesty.” The “but one” was Locke’s “appeal to Heaven, and the longest sword.” Jemmy tempered this threat and undoubtedly accusations of sedition by adding: “God forbid that there ever should be occasion for anything of that kind.” Vindication thus introduces an entirely new issue: the threat of armed rebellion. Injecting the right of revolution into the debate introduced what had been a radical theory thought not to seriously apply to anything other than perhaps the mostly bloodless Glorious Revolution of 1688. To suggest that an “appeal to Heaven, and the longest sword” might be a possibility, however remote, was to make clear the seriousness with which Otis approached the situation.
Vindication establishes in Locke and Montesquieu the cornerstone of American revolutionary thought: the right of the people to be taxed only by themselves or their popularly elected representatives. After stating that God made all men equal, Otis declares that “Kings were … made for the good of the people, and not the people for them.” And then, “No government has a right to make hobby-horses, asses, and slaves of the subject, nature having made sufficient of the two former for all the lawful purposes of man, from the harmless peasant in the field to the most refined politician in the cabinet, but none of the last, which infallibly proves they are unnecessary,” which is quickly followed by “most governments are … the curse and scandal of human nature.” What makes Vindication exceptionally powerful is that Otis was not writing hypothetically or academically but rather to persuade people he knew and alter the government in which he worked. Vindication was intended to change minds at the British Coffee House and the Town Meeting, to get votes from the people in the annual elections and change the votes of the Representatives in the House. Vindication was created to justify and implement resistance to government.
One aspect of Vindication is often misunderstood. Otis’s seventh “data” posited “The King of Great Britain” as “the best as well as most glorious Monarch upon the Globe” and referred to “his other royal virtues.” His reign was “the ne plus ultra of human glory and felicity.” Otis wrote of “his Majesty’s Person, Crown, Dignity or Cause, all which I deem equally sacred” and that the King was “truly the most august Personage upon Earth.” The catalog of royal virtues is lengthy, as there are references to the King’s “wise and gracious administration,” “the glorious revolution and the happy establishment resulting therefrom,” and “the names of the three George’s would doubtless have been immortal.” When Bernard had viewed Otis’s remonstrance as evidence of “disrespect” toward the crown, and others had termed it “seditious, rebellious and traitorous,” Otis was shocked. His revulsion at the thought of treason may well have impelled him to publish his pamphlet rather than wait for the next session and likewise impelled him to establish his loyalty in the first part of the Vindication before turning to the constitutional merits of the question posed by Bernard’s actions. Otis was very aggressive at positioning his argument: he was opposed to the government as embodied by Hutchinson and Bernard but not the nation as embodied by the King. Not only could one wish to overthrow the government while still remaining a patriot, but overthrowing the government could be an act of patriotism, as Locke argued. Otis’s manifestation of this argument was to praise the king while threatening his government. Further, as regalia spread throughout the colonies, the court rooms became increasingly English, and the media fawned over George’s every move, Otis had no choice but to draw a stark contrast between the target of his criticisms and the King. George III wasn’t only untouchable for legal and philosophical reasons; criticism of him would have challenged the spirit of the times.
Vindication contains Otis’s usual concerns, but it also introduces a cousin of the plural office-holding issue: separation of powers. Regarding Bernard’s argument about “emergencies,” Otis cautioned that “it is a very poor bargain, that for the sake of avoiding a session extraordinary” the people sacrifice “the right of being taxed by their Representatives.” As for the executive branch co-opting the legislative’s power to spend money, Otis observed: “I am as much for keeping up the distinction between the executive and legislative as possible. Happy, very happy, would it be for this poor province, if this distinction was more attended to than it ever has been.” In arguing that a separation of powers was desirable, Otis was concurrently arguing against plural office-holding.
Otis ended his pamphlet with a moderate warning to the governor that reflects the traditional English politician’s device of imputing the nation’s troubles to unnamed rapacious ministers rather than to the King:
I am convinced that if his Excellency will in all cases take the advice of the general assembly, (which however contemptably some may affect to speak of it, is the great council of this province, as the British parliament is of the kingdom) that his administration will be crowned with all the success he can desire. But if instead of this, the advice of half a dozen or half a score, who among their fellow citizens may be chiefly distinguished by their avarice, ignorance, pride or insolence, should at any time obtain too much weight at court, the consequences will be very unfortunate on all sides.
Here Jemmy offers Bernard an opening to assign blame to others – the oligarchs on the Council – for his intemperate actions. John Adams writing in 1818 enthusiastically claimed that “[Vindication] is a document of importance in the early history of the Revolution which ought never to be forgotten. . . . How many volumes are concentrated in this little fugitive pamphlet, the production of a few hurried hours?” Thomas Hutchinson had a different recollection, writing to John Cushing on January 3, 1763 that, “I never knew less notice taken of a pamphlet that contained so much slander which generally gives a run than there is of this and I am mistaken if he increases the number of his friends.” But Hutchinson’s “never knew less notice” was wishful thinking, for even he then comments that, “Brattle extols it to the skies and will not allow that a more sensible thing was ever wrote.” Hutchinson hoped no one read the pamphlet because it threatened the unthinkable: the appeal to heaven and the longest sword. Hutchinson’s peer on the Council and the bench John Cushing had sent remarks to the lieutenant governor about Vindication, and Hutchinson’s January 3 reply reveals a glimpse of his honest assessment:
You are less of a politician than I always before took you to be. … I think O is a clever fellow. He was so unfortunate as to mistake before but he certainly has the right scent now. Pray do not stop him in his course. … But to be serious … it is whispered that great things are to be done next session.
Despite Hutchinson’s complaint of “slander,” J
emmy’s Vindication was gentle compared to the views he had privately expressed weeks earlier and would publish two months later. A moderate tone may have been used in order to first establish Otis’s patriotism; he knew that whispers of treason and sedition would be spoken, and he needed to assure his readers that one could oppose the government while still supporting the country. On November 8, just two days before the Vindication appeared, Jemmy and Ruth sold their home on School Street and rented a house on Queen Street (now Court Street) just up the hill to the west of the Town House. The purchaser of the School Street house was none other than Robert Auchmuty, Jemmy’s successor as acting advocate general and opposing counsel in the second hearing in the writs of assistance case. At about the same time, the province was covered in two feet of snow and Jemmy trekked to Barnstable to consult with his father – perhaps about the “great things” to be done.
Meanwhile, both the political and religious dissidents were communicating with Mauduit. On October 12, 1762, Rev. Chauncy requested that Mauduit keep “my name a secret” and warned that “Mr. O-r [Oliver]… is a friend to those of most influence who are the friends of Mr. Bollan.” And finally, Chauncy writes, “The Boston associated Pastors join with me in their compliments to you, and thanks for your endeavours to serve us.” The radical pastors viewed Mauduit as their lobbyist too. On Nov. 17, 1762, a week after Vindication was published, Mayhew reported to Mauduit:
I have had some conversation with several Gentlemen of his Majesty’s council of this Province, respecting what you wrote to others as well as to me (and, as I understand, to the Government here also) about associating your worthy brother with you in the Agency.
This letter reveals Mayhew’s direct efforts to influence provincial politics. It was increasingly apparent that Mayhew was very politically active and the Black Regiment actively attempted to influence government affairs.
The next session of the House commenced on January 12, 1763 and was rife with hostility; the Jemmy Otis led Popular Party thwarted repeated attempts by the Council to create joint committees with the House even though Colonel Otis chaired the Council delegation. The House wasn’t simply rejecting the Council’s efforts to cooperate; the House was rejecting the Colonel. The disagreement concerned the London agent; Mauduit was in poor health, and he had prudently suggested that his brother Israel be employed as an additional lobbyist. Jemmy and the Popular Party concurred with this suggestion as it would assure the continued irrelevancy of the oligarchy’s favorite candidate, Richard Jackson. On October 28, 1762, Jemmy wrote Jasper Mauduit that “You may rely upon your friends doing everything that is possible to bring about his [Israel’s] election as a joint agent with you” and further maintained “that this will finally take place I have no great doubt.” Concurrently, Hutchinson informed Bollan that he could “scarce believe such a point can be carried but am not sure it will not.” Jemmy Otis attempted to push Israel Mauduit’s election through the House by using the parliamentary ploy of submitting the appointment as soon as a quorum was reached, but the appointment was approved only on condition that the addition of Israel Mauduit would require “no further Expense.” The Council refused to budge, and attendance in the House had increased, so after further delays from the Council, Israel Mauduit’s appointment was tabled. But the rebellious Otis faction in the House returned fire by finally placing in the record a moderate version of Jemmy’s Vindication, refusing to grant any salary to Attorney General Trowbridge, and refusing to agree on instructions to the province lobbyist in London. The Popular Party was in a fighting mood.
In a sparsely attended House session on Saturday, January 29, Jemmy proposed a letter to be sent to lobbyist Jasper Mauduit informing him of the failure to elect Israel due to additional expense; the explanation wasn’t true, but it would assure Mauduit of his support in the province and of the power of the Popular Party, which did not wish to reveal that they were being fiercely and sometimes successfully opposed by the Court Party at nearly every turn. The motion to send the letter passed, but on the following Monday the Council requested a joint committee to consider the letter only to be notified that Jasper Mauduit’s letter had been “already answered.” By the next day, several members returned to inquire about the letter, and it moved to reopen the previous vote. The Court Party led House insisted that the letter be produced, but Jemmy claimed that it was already sent to London. A quick review of the town newspapers, which regularly listed all ships entering and leaving Boston harbor, revealed that no ship had left in the interim; Jemmy narrowly escaped censure by an enraged Court Party.
Jemmy’s name is thereafter absent from the House Journal until the closing sessions of the term; he may have refused to attend the Ruggles led sessions or may have been occupied with something else. During his absence, Attorney General Trowbridge’s petition for a salary was moved for consideration, and Jemmy was excused from a committee investigating militia recruiting practices. The House seemed to be in turmoil, and Governor Bernard suspended the term on February 25. During the session Colonel Otis was awarded some of the patronage to which he was entitled as a member in good standing of the Governor’s Council; his brother Solomon was granted a notary public’s commission, and contrary to his standard country prudence, he was offered a share in the paper settlement of Murrayfield, a speculative venture that would create much pain and little profit.
Meanwhile, Jemmy’s “Conscience” was alienating his legal associates. In one of the many attempts to limit petty law suits, the Boston bar agreed to four rules of practice that in effect barred plaintiffs not represented by sworn attorneys. On behalf of the Boston bar, Jeremy Gridley presented the rules of practice in open court for the expected approval of the judges, but suddenly and without warning, Jemmy Otis disrupted the pro forma proceedings declaring the rules to be “vs. the Province Law, vs. the Rights of Mankind,” thus foisting upon the court his opposition. The court was stunned as they all thought the rules had been previously approved. John Adams wrote in his diary on February 5, 1763, “Thus with a whiff of Otis’s pestilential Breath, was the whole system blown away.” Thacher was particularly enraged, asserting “Whoever votes for him to be any Thing more than a Constable let him be Anathema maranatha. I pamphleteer for him again? No Ile pamphleteer against him.” Auchmuty, who had recently purchased Otis’s house, unleashed the rumor that Otis had originally supported the proposed rules in order to enroll some of the town’s informal lawyers as apprentices but discovered that the prospective students were instead going to Auchmuty and Samuel Quincy; Auchmuty further opined that Otis’s change of position was to protect his “tools and Mirmidons,” the “Constables, Justices Story and Ruddock, &c.” who practiced law as a hobby or part-time job. This explanation may have fulfilled the prejudices of someone such as John Adams, but it was too simple and belied the facts. Otis wanted the legal practice to become more professional, as they all did, but he realized that it was unfair and unrealistic to bar all but sworn attorneys from bringing a suit in the Inferior Courts, which is what the new rules would have accomplished. The courts may be tidier with the new rules, but effectively excluding everyone who couldn’t afford an attorney from the plaintiff’s table carried a whiff of the same oligarchy that Otis was attempting to exterminate. Further, at the time these proposals were being made, Jemmy had not had a legal apprentice for nearly eight years, and given his excellent legal reputation, the most likely explanation is that he was not interested in mentoring apprentices, and no evidence exists that he desired or attempted to engage apprentices. The first part of Auchmuty’s explanation therefore seems to reflect ill-intentions by Auchmuty, whereas the second part of his explanation – that Otis wanted to maximize access to the courts – is likely closer to the truth. Auchmuty was and would continue to be a staunch royalist, eventually emigrating to and dying in England. He was also the firmest ally of the oligarchs and would later be implicated by Benjamin Franklin and Thomas Cushing in various loyalist conspiracies, so it is to be expected that he
would rumor monger about Otis. Three years later in 1766 Jemmy Otis would make another strong move in the direction of increasing access to the corridors of power when he instituted a visitor gallery in the Assembly enabling anyone to witness the workings of government; it was perhaps the first instance in the world where the operations and deliberations of a legislative body was freely open to reporters and the public.
The early months of 1763 were very difficult times for Jemmy; it was a transitional period during which he fought the oligarchy while attempting to convince potential allies to join his small faction. A year later, he would begin to build the feared confederacy, but in early 1763, he was often alone. At about that same time, John Adams jotted down two shreds of altiloquence about his former hero:
Recipe to make a Patriot. Take of the several Species of Malevolence, as Revenge, Malice, Envy, equal Quantities of scurrility, fear, fury, Vanity, Prophaneness, and Ingratitude, equal Quantities and infuse this Composition into the Brains of an ugly, surly, brutal Mortal and you have the Desideratum.
