by Nathan Allen
The instructions then address public morals, stressing that the legislature should be greatly concerned with “Publick Happiness.” The instructions then assert a position on public debt:
You will remember that this Province has been at very great Expence in carrying on the late Warr, and that it still ly under a very grievous burden of Debt, you will therefore use your utmost endeavor to promote Publick frugaility as one Means to lessen the Publick Debt …
The Boston representatives were further directed to minimize government expenditures in order to reduce debt. Regarding regulations, the Boston bench was told that they should “make it the Object of your attention to support our Commerce.” Then the instructions confront the looming Sugar Act. The instructions committee conveyed its “surprize” that the lobbyist’s “early notice” of new taxes had not produced a special session of the General Court and strongly recommended the representatives issue “a proper Representation” to Whitehall protesting the Act; this was a direct attack on Court Party leadership in the House and Council and a somewhat deceptive defense of Mauduit. The instructions ended with a characteristic Adams conclusion:
But what hightens our Apprehensions is that those unexpected proceedings may be preparitory to new Taxations upon us; For if our Trade may be taxed why not our Lands? Why not the produce of our Lands and every Thing we possess or make use of? … If these Taxes are laid upon us in shape without a Legal Representation where they are laid, are we not reduced from the Character of Free Subjects to the miserable state of Tributary Slaves.
After much debate, the instructions were ratified, and the Boston representatives left the smallpox ridden city and arrived at Concord for the opening of the General Court on May 30. The House elected the moderate friend of government Samuel White of Taunton as speaker, promoted Royall Tyler to “the Council board,” and replaced his Boston bench seat with Thomas Gray.
Jasper Mauduit sent several official letters – five alone in March – to the General Court that required reading and deliberation. On June 1, the House appointed a committee consisting of Speaker White, Jemmy Otis, Thomas Cushing, Oxenbridge Thacher, John Worthington, Timothy Ruggles, and Judge Chambers Russell. Just a week later on June 8, the House Journal reports unusual activity:
The Rights of the British Colonies in general, and the Province of the Massachusetts-Bay in particular, briefly stated, with Observations on the Act of the sixth of George the Second, called the Sugar Act. Read.
Just four days later, this “Rights of the British Colonies” was again officially read and then referred to the committee dealing with Mauduit’s communications. The following day, the committee proposed a draft of a dispatch to Mauduit before the House; the House swiftly approved it. The dispatch to Mauduit angrily criticized him for granting that Parliament had the authority to levy any such taxes, tolerating Grenville’s hollow gestures of friendship, and believing Grenville’s professed interest “to consult the Ease, the Quiet, and the Goodwill of the Colonies.” The House admitted that in practice Mauduit had sent warnings of the new tax plans, but in theory Mauduit had failed to understand or promote the province’s principles. To help him better understand the province’s principles, the dispatch concluded with: “Inclosed, you will have a brief State of the Rights of the Colonies, drawn by one of our Members, which you are to make the best use of in your power.”
It was rare that a province’s agent would be so harshly rebuked, particularly by his own employers. The Court Party was doubtless required to take such a firm position because as a majority in both the House and the Council, they were viewed as having botched the issue. And the Popular Party could admonish one of the Black Regiment members precisely because the Massachusetts Black Regiment, as characterized by Mayhew and Chauncy, were no less politically radical than Otis and equally fierce defenders of New England’s political independence as they were of its religious independence, as evidenced by Mauduit sending Mayhew a collection of political radical Algernon Sidney’s works; Sidney had written “... as death is the greatest evil that can befall a person, monarchy is the worst evil that can befall a nation,” and, when sentenced to death for treason, declared that “We live in an age that makes truth pass for treason.”
The document included in the dispatch to Mauduit was a version of the longer pamphlet Jemmy had nearly finished composing; that the House took the highly unusual decision of adopting and transmitting a political pamphlet to the province’s agent as an official communication demonstrates how far that body had philosophically moved since Otis’s rebuke of Bernard just two years earlier in which his comparison of King George to “Lewis” had so horrified Bostonians. Perhaps the House was moving toward a radical position out of conviction, or perhaps it was out of fear, or panic, or a feeling of helplessness in the face of Parliamentary absolutism. The Land Bank debacle had not been forgotten. Regardless of the reason, the Popular Party members in the House were in a fighting mood, and the Court Party members were under intense pressure from the merchants. The seeds that Otis had been planting for almost four years were starting to germinate, and almost certainly, the House’s increasing radicalism reflected the general temperament of the province.
But the House was not satisfied with simply commanding their lobbyist to fight Whitehall; the House knew its options were limited to attempting to influence acts of Parliament, so they created a new option. The confederacy that Bernard so feared would form around Jemmy in Boston was now to be spread throughout the colonies; the House appointed Otis, Thacher, Cushing, Edward Sheafe, and Thomas Gray – the entire Boston Bench plus one – to a committee to write “to the other Governments to acquaint them with the Instructions … and to the Agent of this Province, directing him to use his Endeavors to obtain a Repeal of the Sugar Act, and to exert himself to prevent a Stamp-Act or any other imposition.” Per normal operating procedure, the Council invited the House to create a joint committee to draft Mauduit’s instructions; though controlled by the Court Party, the House rejected the invitation. The practical limitations of plural office-holding benefitted the Boston bench as Hutchinson and the other Superior Court Justices then left the session early to hold their court term in York. With this core of oligarchic strength absent, Jemmy Otis could, and did, force his measures through the Assembly; the Popular Party was determined not just to alert their lobbyist to the State of the Rights of the Colonies but to incite other colonies. Governor Bernard was somewhat alarmed by the activities of this swiftly formed and radical interim committee and its communications with “other Governments.” He had a vague premonition that it would “lay a foundation for connecting the demagogues of the several governments in America to join together in opposition to all orders from Great Britain.” And for once, Bernard was prescient.
Fueled by the belief that too little had been done in the 1763-64 sessions, the House was aggressively and decisively communicating with their lobbyist in London. Ironically, one of Mauduit’s few defenders was oligarch Hutchinson, who was troubled by “the most injudicious conduct” of the House in communicating so directly with the agent; Hutchinson firmly believed that protocol was principle and, in reality, he was protecting the Court Party’s reputation as best he could. While Hutchinson was concerned with procedure and reputation, an invigorated Otis and his correspondence committee worked rapidly, sending letters to the other colonial assemblies by June 25. With the Court Party rendered impotent by the appearance of incompetence or apathy, Jemmy Otis and the Popular Party implemented plans with unbridled alacrity. On June 25, 1764 a letter written by Otis and sent to the Rhode Island Assembly called for “the united assistance of the several colonies in a petition against such formidable attacks upon … the inseperable rights of British subjects.”
Concurrent with these developments, Jemmy wrote his father a letter that in part said, “The new Act is come over which continues ye old one till Septr … the time is come which we have long foreseen. I blame the people in England not half so much as I do our ow
n. If we must be slaves I am only sorry tis to a pack of Villains among ourselves.” It was probably quite obvious to both father and son that the list of members of the “pack of villains” was ambiguous; it certainly included Hutchinson, the Olivers, and Bernard, and probably included nearly all of the Council and the Supreme Court, but did it include that holder of so many offices, wealthy landowner and merchant, and Council member Colonel James Otis, Senior? The letter is vague enough to include the possibility that Jemmy was including his own father as one of the slave-masters. The reference to “the time is come which we have long foreseen” divulges the conclusion of the radicals in the Popular Party; a significant shift in the relationship between the people and the oligarchs had taken place, the battle lines were drawn, and the precipice that demarks periods in history was in view. “The time is come” to chamber Jemmy’s academic philosophy into a powerful weapon with a hairpin trigger – that weapon would be the people.
Further suggesting that Otis intended this letter to implicitly include his father in the “pack of villains” are his apparent apathy to the looming stamp duties and his failure to disclose the explosive pamphlet that Otis was presently printing at Edes and Gill’s press. Otis’s omission of any discussion regarding the Stamp Act is striking because Otis was very aware of the Stamp Act preparations as his committee in the House had been considering Mauduit’s letter of March 13, 1764. In a remarkable exhibition of ignorance of the House’s anxieties, Mauduit had written:
The Stamp duty you will see [the Whately resolves] is deferr’d till next Year. I mean the actual laying it: Mr Grenville being willing to give to the Provinces their option to raise that or some equivilant tax, Desirous as he express’d himself to consult the Ease, the Quiet, and the Goodwill of the Colonies.
Of course, this letter was addressed to Speaker Ruggles, a dogged Court Party advocate, and it likely infuriated Jemmy. Grenville’s position as expressed by Mauduit was a condescending trinket of political subterfuge. As Jemmy viewed it, the “option” was a transparent deceit transmitted through a dupe to mollify the Boston bench into inaction. Thus it’s clear by the omissions in Jemmy’s June 1764 letter to his father that Jemmy did not compose this letter to discuss the news of the day or impending political issues; rather, the letter was an implicit indictment of his father and, perhaps, a warning that sides were being drawn, and it appeared that the Colonel was on the side of the oligarchy. Importantly, this letter shows that Otis was practically alone in 1764 in the belief that a conspiracy to suppress colonial rights and tax colonial revenues was afoot at Whitehall. The letter is ambiguous on many other matters; the tone suggests tepid resignation at first, then bitterness towards the oligarchy and the customs establishment, and lastly disgust toward the conspiring “ministry.”
By late spring 1764, the absolutism of Parliament was about to be manifested again, the merchants were panicking, the House felt helpless, and the people seemed more willing than ever to entertain radical arguments. Under these circumstances, Jemmy began to write. On July 2, 1764 the Gazette carried an announcement: “Now in Press And Speedily will be published; The Rights of the British Colonies Asserted and Proved. By James Otis, Esq.” Three weeks later the same paper announced that the pamphlet was for sale “This Day” at a price of “one Pistareen & Half,” and thus was born the revolutionary philosophy whose lineage can be traced through every major revolutionary document, right up to the Declaration of Independence. Political pamphlets were not new, but Otis’s The Rights of the British Colonies, Asserted and Proved is typically viewed as the first pamphlet of a long series of radical pamphlets that culminated in the Revolutionary War, and it is the first pamphlet to coalesce the possible responses to the new sugar tax into a unified, philosophically sound position. Its eighty pages contained the seeds of American revolutionary ideology: the people as the sole absolute power, the fiduciary nature of government, natural “inseperable” rights, equality created by nature, consent. It is a disjointed and hurried production, but these characteristics were common in the pamphlet genre as most pamphlets, and especially this one, were produced quickly in order to address current events. For nearly a year, the politicians of Massachusetts could produce no majority response to present to Whitehall either through their lobbyist or by special agent. The Rights of the British Colonies would provide the argument required to fight the power of Whitehall.
Jemmy probably began writing the actual pamphlet in May, though it was largely composed from pieces written over the previous year. Despite the grueling pace of work in the House during the first two weeks of June, Jemmy completed Rights of the British Colonies within six weeks, thus revealing that much of it was likely written extemporaneously. The work is divided into four “chapters” and an appendix. The fourteen page appendix consists of the Boston town meeting’s instructions of May 24, 1764, and the “Substance of a Memorial presented to the House,” which is the Otis statement as officially read to the House on June 8 and 12. This “memorial” outlines much of Rights but emphasizes arguments that would have a practical political effect – increasing merchant support. The first three chapters of Rights reflect a calm, scholarly approach that suggest they were first drafted long before the hurricane of activity in June. It’s impossible to determine when this period of academic reflection might have occurred, but the March 1763 Gazette advertisement for three Otis pamphlets indicate that he was working on pamphlets 16 months earlier. The last of these March 1763 pamphlets, “The present political State of the Province of the Massachusetts Bay … and a State of the Rights of the Colonists in general,” may have provided the foundation of Rights.
The Rights of the British Colonies begins with a summation and analysis of contemporary theories regarding the basis of government authority and then proceeds to a meticulous and documented application of these theories to the much revered Glorious Revolution of 1688. Much of Jemmy’s analysis referenced the works of early 17th century philosopher Hugo Grotius and late 17th century philosopher Samuel Pufendorf. Among Pufendorf’s most significant works is a commentary and revision of Grotius’s philosophy. In addition to being a proponent of theories of natural law, Grotius was also a proponent of Jacobus Arminius’s theology; Grotius was 26 years old when his fellow Dutchman Arminius died and would develop and promote Arminius’s heretical philosophy. Arminianism, as it was aptly called, confirmed the Calvinistic concept of preordination, but argued that God had preordained all souls, and salvation was at that point wholly determined by the will of the individual. This profoundly realigned the drama of salvation, for with Arminianism, the actor was not God but the individual. Grotius, Pufendorf and others discovered and developed an obvious and powerful relationship between the Arminian concept of salvation and an individual’s natural rights; if it was an individual right to reject God, preordained or not, then such an individual could certainly reject anything less than God. Grotius was asked by the States of Holland to issue an edict in which he additionally argued that a government’s purpose was limited to maintaining basic civil order; everything else should be left to the individual’s conscience and effort. Grotius, along with his primary political supporter, Dutch statesman Johan Oldenbarnevelt, were arrested. Oldenbarnevelt was sentenced to death and Grotius to life in prison. After serving three years, Grotius escaped prison hidden in a large book chest, which cemented his reputation as a leader in the cause of individual rights. In Grotius and Pufendorf, Jemmy would find a highly combustible combination of natural law theory and Arminianism, which placed salvation squarely on the will of the person, not on decrees from God. Arminianism inverted the salvation hierarchy, making God the foundation and the will of the individual the apex. Salvation was not by works or grace but by will alone. Arminianism would spread rapidly in the colonies and, with a substantial contribution by John Wesley, became the dominant theological system of the United States by the 19th century.
After the review of Grotius and Pufendorf, Jemmy analyzes colonial rights and reviews the way
s in which contemporary theories apply to the British North American colonies. This part challenges the reader with examples, allusions, and wit that is encyclopedic in its review of contemporary political thought. The essential contention – that the people are the absolute sovereign power and the authority of the government is primarily fiduciary – derives from John Locke. But Jemmy is unsatisfied with much of Locke, surprisingly considering him not radical enough to establish fundamental universal freedom; for that Jemmy looks to the Swiss legal scholar Emmerich de Vattel’s 1758 The Law of Nations or the Principles of Natural Law – a copy of which would eventually land in the hands of George Washington. Otis used Law of Nations to substantially modify Locke’s theories. In determining the “origins of government,” Jemmy rejected Locke’s theory of the social contract as the legitimating origin of social organization just as he dismissed “Grace” and “mere brutal power.” Jemmy objected to the social contract theory for several reasons; first, it was impossible to define the parties to the contract, particularly parties who could not legally enter into contracts and parties of future generations who could be bound without consent to such contracts. Most importantly and uniquely, Jemmy dismissed Locke’s focus on property rights as both a foundation and end for government as “playing with words.” Otis rejected all efforts to legitimize a person’s status or ability to participate in governance based on property; the entire notion that property ownership affected one’s rights was the essence of the feudal system that Otis sought to raze.
