by Nathan Allen
In Rights, Otis agrees with James Harrington’s “divine writings” – referring to his 1656 Oceana – that “Empire follows the balance of Property” though “the possessor of it may not have much more wit than a mole or a musquash.” Here, Otis observes that property ownership – that is, wealth – does not require intelligence, so it is not inherently reasonable to bestow rights based on property. While property should not confer rights or imply virtue, a degree of fluidity maintaining a balance of property is necessary to establish a just government. In Vattel, Otis found the answer to the question of government’s origin: “Such is man’s nature that he is not sufficient unto himself … since nature has constituted men thus, it is clear proof that it means them to live together.” Jemmy then concluded that government’s foundation and thus authority for operating was derived from “the unchangeable will of God, the author of nature.” God, or nature, makes it “necessary that what we call matter should gravitate” and that the “different sexes should sweetly attract each other, for societies of single families.” Thus societies form because of the nature of humans, which Jemmy summarizes as “Government is therefore more evidently founded on the necessities of our nature.” Jemmy made an important distinction between social contracts and constitutions; he rejected the social contract as determinative to civil society and the formation of “simple democracy,” but he pointedly supported the existence of constitutions – the “express compact” – to define the relationship between people and their government and delineate the scope of the government’s power, particularly when it came to the problem of establishing the “two great powers of Legislation and Execution.” Thus he considered the Convention Parliament of 1689 to be an express compact and attestation that the “community” is the “supreme power.” In all cases, property and its ownership was removed from the equation.
Otis leveled new charges when addressing the “Colonies in general” and claimed that “Even the English writers and lawyers, have either intirely wav’d any consideration of the nature of Colonies, or very lightly touched upon it.” This was largely true; the apologists of mercantilism had positioned colonies in subordinate relationships without seriously considering the legal and constitutional ramifications of such subordination. After criticizing those who considered the American colonies to be “little insignificant conquered islands,” Otis offered his own definition: “A plantation or colony, is a settlement of subjects, in a territory disjoined or remote from mother country, and may be made by private adventurers or the public; but in both cases the Colonists are entitled to as ample rights, liberties and priviledges as the subjects of the mother country are, and in some respects to more.” Otis’s contention that colonies are entitled to certain rights not enjoyed by subjects in England was unique, and he had made a similar assertion earlier with respect to writs of assistance.
Jemmy then asserted that colonists have all the natural rights of anyone, stating that “The Colonists are by the law of nature free born … as indeed all men are.” In exhibiting his elasticity of mind that John Adams previously described, Jemmy followed this reasoning to the end – “white or black.” And then Otis issued a statement on racial equality that borrowed from but improved on Montesquieu:
Does it follow that tis right to enslave a man because he is black? Will short curl’d hair like wool, of christian hair, as tis called by those, hearts are as hard as the nether millstone, help the argument? Can any logical inference in favour of slavery, be drawn from a flat nose, a long or a short face.
The “law of nature” made all people free, and no law and no Parliament could change that; Otis’s refutation of Parliamentary absolutism was thorough. No government, regardless of how or why it was constituted, could contravene the law of nature. The digression began by attacking first the slave trade and then the West Indian planters who flourished on it:
Is it to be wondered at, if, when people of the stamp of a Creolian planter get into power, they will not stick for a little present gain, at making their own posterity, white as well as black, worse slaves if possible than those already mentioned.
Otis realized, as Jefferson later would, that a true break with the feudal past necessitated a break with systemic servitude. Translating that lofty philosophical conclusion into reality proved far more difficult than arriving at the conclusion and Boston rebels such as John Adams who lived to witness that break with feudalism held their own fiery radicalism in check on the subject of slavery in order to maintain a unified country. Adams, after all, had been good friends with slave owners; it’s doubtful that Jemmy Otis would have held his tongue or quieted his pen on the subject had he lived beyond the creation of the Constitution. It’s also doubtful Otis would have concluded that a United States with slaves would have been preferable to a separate New England with none. The Rights of the British Colonies was revolutionary because it entirely rejected the conception of the world as hierarchically ordered. And while Otis would follow every argument to its logical conclusion, his conclusions were often beyond the grasp of the year he published them; the colonial deferential relationship was a violation of nature, but it would be years before most agreed. Slavery was a violation of nature as argued by Otis in 1764, and yet even Jemmy couldn’t bring himself to free his slave boy. His mind was working far ahead of the times and far beyond what was practicable in 1764.
The last chapter of the pamphlet is 34 pages, and its distinct change in style reveals it to have been hastily written, at times deteriorating into cryptic notes as the production of a mind so choked with ideas that they raced from his pen to breathe upon the page. The words raced to critique Thomas Pownall’s The Administration of the Colonies that had just arrived from London. Crouching amongst the usual verbiage of criticism are explosive ideas. After praising the establishment of English liberties in l689 – a “deliverance under God” – he makes a bold declaration of parliamentary power:
All of them [the colonies] are subject to and dependent on Great-Britain; and that therefore as over subordinate governments, the parliament of Great-Britain has the undoubted power and lawful authority to make acts for the general good.
Jemmy knew that a concession of parliamentary power would be condemned by his fellow radicals, so he reasons that “‘tis from and under this very power and its acts, and from the common law, that the political and civil rights of the Colonists are derived.” He then heaps sacrilege upon apostasy by minimizing the importance of the colonial charters. These statements must have alarmed his Popular Party constituents, but, of course, he was setting up the reader for an even more audacious argument: it would be of no consequence if every colonial charter were extinguished because not “one of essential, natural, civil, or religious rights of the Colonists” would be impacted in the slightest for the same reason that no government could enslave a person. Fundamental rights are derived from God, not from any government or act of government or charter. Jemmy did not discard the importance of the charters as they were guarantees of special privileges, but they were prone to “annihilation” unlike “immutable natural” rights. Disparaging the charters actually established a position of parity with the mother country; the colonies were not dependant on Parliament for their rights, and the charters only established special rights, not basic rights. As such, the charters established extra rights for the colonists, as they already had the same basic rights as the inhabitants of England. The point was made by a quote from the Aeneid that Otis placed on the title page of the pamphlet, printed directly below the title: “et foederis aequas Dicamus leges, sociosque in regna vocemus” – let us create an equal compact and let us invite them as partners to our government. But given that colonial relationships in the 18th century were understood to be fundamentally subordinate, Otis was, perhaps somewhat inadvertently, arguing for colonial freedom. It was simply inconceivable that a colony could be considered equal to its mother country. But Otis, while still maintaining his patriotism, argued that not only was a subordinate relationship
undesirable, it was against God and nature. The European conception of the universe as hierarchically ordered was feudal in origin and thoroughly accepted in the 18th century; Otis aggressively rejected this conception on every level from race relations to empire organization. No piece of paper established a man’s freedom, and the absence of that paper did not enslave him.
Repeating the charge made in his letter to his father, Jemmy criticized “a set of men” in the colonies that was subverting the colonists’ natural rights and attempting to enforce hierarchies. The obvious reference is to Hutchinson, the Olivers, and the other members of the Boston oligarchy, but Otis was also likely referring to oligarchy in the colonies in general, as there were concurrent attempts to vacate the charters of Rhode Island and Pennsylvania and to put the administration of those colonies under the rule of appointed oligarchies.
Adopting the list from Locke’s Second Treatise of Government, Jemmy then delineates the features of legislative power with respect to the colonies. But in his continuing efforts to modify Locke, Otis added a crucial amendment. Otis augmented Locke’s declaration that the “legislative … is unalterable in the hands where the community have once placed it” with “nor can a subordinate legislative [be] taken away without forfeiture or other good cause.” Locke addresses the term “subordinate” but writes only “Of other ministerial and subordinate powers in a commonwealth we need not speak.” In contrast to Locke, Otis sought to establish elected colonial assemblies on a solid theoretical foundation within the British Empire. Otis begins with the thesis that a subject has a natural right to representation in a legislative body. If a colonial legislative body was nullified by loss of or changes to its charter, then those colonists were entitled to representation in Parliament, though “it would be better if they had both.” Otis supported direct colonial representation in Parliament as “a thousand advantages would result from it,” and one of the primary advantages was that the system of “scandalous memorials … privately cooked up … and sent to the several boards” would be negated by official representation. Colonial representation in Parliament would also counteract the “vagabond stroller, that has run or rid post thro’ America,” referring generally to lobbyists and specifically to Benjamin Franklin. Otis had little tolerance for Franklin because of the latter’s activities against the Pennsylvania charter. Franklin had spent most of the 1760s in London attempting to convert Pennsylvania’s government to a royal charter; he would soon support the Stamp Act and continue to lobby for a royal appointment up to 1771. The men of principle in Boston, including Otis and John Adams, went to their graves never forgiving Franklin for his backdoor treachery. Further, Franklin was a slave owner and though in theory he opposed slavery, in practice he never mobilized his tremendous reputation against the peculiar institution. Bostonians such as Otis viewed Franklin as a man whose first principle was himself and whose primary means of promoting that principle was by promoting the oligarchy through creating a royal government in Pennsylvania. More broadly, Otis had little tolerance for the myriad avenues of lobbying that layers of bureaucracy and indirect representation yielded.
Jemmy’s view of the correlation between supreme and subordinate legislative bodies was developed from Lord Coke’s views on the status of Ireland, which Otis considered to be a somewhat reasonable compromise and at least an improvement over the current situation. Ireland had its own parliament, yet was subordinate to the parliament of England. Otis argued that the colonies should, at minimum, enjoy the same status as conquered Ireland. This led Otis back to the lodestar of his revolutionary philosophy:
To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5; … Should an act of parliament be against any of his [God’s] natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.
Otis concluded that in such an event parliament would repeal “an act against any of his natural laws,” but then he added that in the past “When such mistake is evident and palpable … the judges of the executive courts declared the act ‘of a whole parliament void.’” For Jemmy, this process of checks and balances was “the grandeur of the British constitution.” The pointed irony of exhibiting this “grandeur” was that Parliament of the 18th century was neither checked nor balanced by any force external to Parliament as it had been previously; such “grandeur” existed prior to the establishment of parliamentary absolutism. Thus the system Jemmy described that combined the Convention Parliament of 1689, which placed government’s authority in the hands of the people, with a parliament that cannot be “absolute and arbitrary” because of checks and balances was a system that existed nowhere save for in his own mind.
Otis then addressed Pownall’s apprehension over colonial independence, the hazards of a regular army operating far from its civil leaders, colonial judges’s purported ignorance, the salaries of colonial governors, the constant battle for jurisdiction between the common law courts and the admiralty courts, and the enormous expenses incurred by the northern colonies during the Seven Years War. He eventually arrives at the core issue: the constitutionality of the Sugar Act. Otis differentiated between the regulation and prohibition of trade and taxing it, the former foolish but constitutional, the latter foolish and unconstitutional. But markedly unlike his fellow political thinkers, Otis could not logically distinguish between internal and external taxes. Any tax on foreign trade is discriminatory, and so it may be constitutionally valid but morally unacceptable. In other words, the distinction is nothing more than circular reasoning: “Yet if taxes are laid on either, without consent, they cannot be said to be free. This barrier of liberty being once broken all is lost. If a shilling in the pound may be taken from me against my will, why may not twenty shillings; and if so, why not my liberty or life?” In the final analysis, all nonconsensual taxes were coerced payments, and it mattered not if parliament had the power, for if the taxes were coerced, that had not the right.
For Otis, the source of just action was consent; the exact nature of the action was irrelevant because if it was taken without consent, it was invalid regardless of its structure. John Marshall would later echo the idea in McCulloch v. Maryland when he wrote “the power to tax involves the power to destroy,” but Otis, and Samuel Adams in his instructions on the same point, transformed this conclusion into an energizing political slogan: “No taxation without representation.” The slogan did not differentiate between internal and external taxes. While for a majority of colonials, the “without representation” existed precisely because they could not be represented, Otis, in 1764 disagreed, writing, “When the parliament shall think fit to allow colonists a representation in the house of commons, the equity of their taxing the colonies, will be as clear as their power is at present of doing it without, if they please.” The only logical solution to justify parliamentary taxation of the colonies was colonial representation in parliament.
In developing this proposal of colonial representation, Otis quoted from Jeremiah Dummer’s rather famous 1721 book defending the colonial charters: “The legislative power is absolute and unaccountable, and King, lords and commons, may do what they please; but the question here is not about power, but right. …” Dummer had been the Massachusetts agent and brother of the acting Massachusetts governor; Otis expanded Dummer’s statement: the question concerns not only rights but also the source of those rights. For Otis, only nature, and therefore God, bestowed those rights; they were neither granted from nor could be taken by any human, elected or otherwise.
In a “sum of my argument” section, Otis offered a final summation of his most salient point:
That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature: That
the refusal of this, would seem to be a contradiction in practice to the theory of the constitution: That the colonies are subordinate dominions, and are now in such a state, as to make it best for the good of the whole, that they should not only be continued in the enjoyment of subordinate legislation, but be also represented in some proportion to their number and estates, in the grand legislature of the nation.
