by Nathan Allen
The two obvious candidates to replace Mauduit were his brother Israel and Richard Jackson, though a few people suggested that the Popular Party was considering Jemmy while the Court Party was pushing to reappoint Bollan. The question proved to be immensely complex. On August 3, 1763, Hutchinson wrote a letter to Jackson, stating:
For two or three years I have been the butt of a faction, and although they have missed their aim and have not hurt me in the esteem of the best people in the Province, yet I question whether the present assembly would give their vote in my favor, especially as I am not sufficiently satisfied myself of the expediency of it to make any interest for it.
Hutchinson had considered the position for himself. And in September 12, 1763, Cushing wrote a letter to Jasper Mauduit informing him that “Mr. Jackson had been already taken some notice of by the Court,” so Jackson wasn’t entirely loathsome to the Assembly and had long been considered for some sort of lobbyist position in London in addition to Mauduit. Complicating matters further, former lobbyist Bollan had apparently blamed the Court Party for his ouster, not the Popular Party. Pownall, the short-term governor prior to Bernard, had detested Bollan and was annoyed that the General Court kept him as their lobbyist while Pownall was in office; now, Pownall was apparently spreading rumors that it was the powerful Court Party who had control of the agency issue in 1761 and thus responsible for Bollan’s dismissal. Further, Bollan was likely aware that Hutchinson was considering the position for himself. Hutchinson spent much of October and November of 1764 defending himself to Bollan:
I did every thing in my power, more I am sure than any other member of the Court, to prevent your dismission, and when I failed in my endeavors, I intimated the true cause of it. I have never seen an opening since for doing you any service in the General Court.
Clearly, Bollan not only suggested that the Court Party was to blame for his “dismission” but also concluded that the Court Party had kept him from any colonial appointments. In a November 8 letter, Hutchinson continued to explain his actions:
But it was not possible for me as a member of the legislature to agree to every measure without being a mere machine, and having no judgment of my own. A very few instances of disagreement, particularly my attachment to Mr. Bollan, who I really thought at that time the most fit person to serve the province, and with whom I had been in friendship for many years, occasioned a coldness and some very severe expressions before the Governor left the province, which other people resented more than I did. … and whenever there shall be a new appointment of a governor, I shall choose to resign.
It was classic Hutchinson; he asserted that his sometimes inexplicable behavior, particularly in not supporting Bollan, was due to not wanting to be “a mere machine” and not because of his own aspirations. He goes further to assert that his friendship with Bollan cost him political capital and “some very severe expressions” from Pownall. Finally, he declares that he’ll resign as Lt. Governor when a new governor is appointed, thereby attempting to assert some degree of principle and autonomy. The Popular Party believed none of this and Bollan increasingly grew doubtful as well. In a February 14, 1763 letter to Mauduit, Jemmy claimed that “Mr. Jackson … will never be agent for this Province.” This belief wasn’t so much founded on faith in the Popular Party to keep Jackson out as on Hutchinson’s habitual scheming to insert either himself or Bollan in the position if the Popular Party failed to elect their candidate.
According to Bernard, the Popular Party had decided on Israel Mauduit in late January 1765 and secured the votes to elect him, but Jemmy interrupted the vote to propose a three year term-limit on any lobbyist appointment. The term-limit motion was generally supported on principle, but some in the Popular Party disapproved of it in practice because it would make compromise candidates more tolerable since any such candidate, if he became undesirable to either party, was removed automatically in three years. The controversial term-limit motion passed, and now the Popular Party was split between the Black Regiment’s candidate and Richard Jackson, who was generally viewed as effective and well-connected. In what Bernard concluded was “an overt act of Otis, designing to counterwork his colleagues,” Richard Jackson was elected province agent. Jemmy even compelled a fellow Boston bench member, likely Cushing, to submit a private letter from Mauduit that affirmed Richard Jackson as the best man to promote rights and liberties. The letter was produced for the record in the last week of January 1765. It seemed as though Otis masterfully manipulated his own party to get one of Bernard’s friends elected – a “counterwork” in Bernard’s words.
Jemmy designed the “three year” term-limit to increase Jackson’s support, not decrease Israel Mauduit’s, as Jackson seemed to be the right man for the turbulent year 1765 already was and doubtless would continue to be. Many in the Popular Party supported Jackson but did not want to be stuck with him interminably, as they suspected they might because the Court Party appeared to have firm control of the Assembly. Though many in the Popular Party supported Jackson, Jemmy spun Jackson’s election ingeniously; in a January 20, 1766 Gazette article, he accused the governor of electioneering for Jackson and in the process having “closeted, cajoled, threatened or persuaded the members of both houses.” There is no ostensible answer for Otis’s behavior other than he believed that the term of office should be limited, regardless of who held that office. His political maneuvering can seem bewildering until one considers that perhaps he was operating solely out of principle and not out of political considerations; after all, he did argue that slavery was against nature whilst owning a slave. And after all, a “counterwork” can work in both directions.
Regardless, Jackson was actually a popular choice, despite Jemmy blaming Bernard for manipulating the process. Even Hutchinson boasted to Jackson in a January 25, 1765 letter that he
had desired every friend I had to vote for Mr. Jackson. You would otherwise have counted 68. There would have been a general vote if a blind bigotry had not influenced some who support none but a dissenter…
His assertions seem innocuous until it’s considered that Hutchinson himself desired the position at times and he had professed his undying support to Bollan. In fact, Jackson’s election was secured not with Hutchinson’s efforts but with Jemmy’s term limit proposal, and yet Hutchinson had no compunction about taking credit for the result. Hutchinson had long prided himself on being immune to Jemmy’s “counterwork” efforts, and yet he would discover his vulnerability when William Bollan exacted revenge with brutal effect four years later.
But Jemmy’s political plan was still unfolding. The recurrent issue of the Superior Court justices’ salaries came to the floor of the House on February 1, and the House voted for £800, a raise for the Court in general, but no bonus for Chief Justice Hutchinson. Then, astonishing the Popular Party, Jemmy offered a motion to grant the chief justice a £40 bonus. After an unusual roll call vote, the motion passed by one vote with a split Boston bench; Jemmy and Gray – now an Otis relative by marriage – voting “Yea” and Thacher and Cushing voting “Nay.” The “counterwork” was proceeding. On February 4, just three days after the vote, Speaker White abondoned his position in the House, and Jemmy Otis was elected speaker pro tempore. Perhaps more surprisingly, Governor Bernard consented to Jemmy’s election. During this same month, the Stamp Act was being officially read in Parliament, the final reading occurring in March, and by March 22 the Stamp Act was a statute of the realm.
As the Stamp Act ascended to law in London, Jemmy ascended to power in Boston. Otis was instrumental in getting Bernard’s friend elected as the province’s lobbyist, and he then published criticisms of Bernard and Jackson; Otis voted for a pay bonus for Hutchinson and then is elected and approved by Bernard to be Speaker of the House. His tactics bewildered and frustrated nearly all involved, but he was maneuvering everyone into a position to answer that ultimate question: What action can the colonies take if Parliament chooses to ignore their rights?
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The governor of Rhode Island, Stephen Hopkins, had published a pamphlet two months earlier in December 1764. His The Rights of the Colonies Examined follows Otis’s arguments in Rights of the Colonies Asserted and Proved, and though no royalist, Hopkins was a good “friend of government,” so he supported obedience to Parliament; despite the call for submission, Hopkins extensively tabulated the economic problems that would be created by the Sugar Act, stamp taxes, and the increasing authority of juryless vice-admiralty courts. He pointedly ignored the issue of direct colonial representation in Parliament and neglected to address that critical question: What action can the colonies take if Parliament chooses to ignore their rights?
Rhode Island excelled in acerbic political battles, even surpassing Massachusetts in that dubious honor.
Factions in Rhode Island were stridently territorial and always prepared to brawl, and the Newport merchant faction’s Martin Howard, a lawyer whose avocations included mocking Governor Hopkins, fully engaged in his hobby a month later. His scorn rolled off the presses on January 23, 1765, coyly titled A Letter from a Gentleman at Halifax, To his Friend in Rhode-Island, Containing Remarks upon a Pamphlet, Entitled, The Rights of the Colonies Examined. The plodding, earnest Hopkins proved to be an easy target, and Howard comprehensively ridiculed Hopkins and his pamphlet from his perch atop the customary Tory worldview. For Howard, the charters “ascertain, define, and limit the respective rights and privileges of each colony,” and he concluded with palpable impatience that he “cannot conceive how it has come to pass that the colonies now claim other or greater rights.” Halifax Letter was a smart bit of Loyalist publicity that pursued standard Empire political theory in delineating rights into two camps: personal and political. Of the former, “life, liberty, and estate” are established at birth, but of the latter, their existence requires charters. Howard argued that rights and parliamentary power are derived from the same source, and just as parliamentary applies to all, Parliament represents all. He then observes the fact that many in England are not directly represented in Parliament but are taxed without protest, concluding that “The right of [direct] representation is but a phantom.” The Halifax Letter then charges that Otis’s The Rights of the British Colonies Asserted and Proved has “a tendency to embitter the minds of a simple, credulous, hitherto loyal people, to alienate their affections from Britain.” But it was the inevitable reference to Jemmy as “Mr __ , who, though unhappily misled by popular ideas and at the head of the tribunetian veto, yet appears to be a man of knowledge and parts” that demanded a reply; the sarcastic compliment was clearly leveled at Jemmy as a “man of knowledge.” The allusion to the “tribunetian veto” referred to the power of ancient Rome’s lower house, which represented the commoners, to veto actions by the upper house particularly in response to infringements of legal rights. Oligarchs were forbidden to be members of the tribune, thus resulting in a legislative body that represented commoners and was composed of commoners. Tellingly, Howard clearly intended the tribunetian veto appellation to be insulting.
If Howard’s lone ambition was to enrage James Otis, he succeeded brilliantly as Howard’s insulting high Tory tone was certain to attract Otis’s attention. Not surprisingly, two months later Edes and Gill advertised a new anonymous pamphlet, A Vindication of the British Colonies Against the Aspersions of the Halifax Gentleman in His Letter to a Rhode-Island Friend. Published without attribution, the pamphlet went on sale on March 18, 1765 and was Jemmy Otis at his most shockingly strident. The Vindication is a far-ranging work that ably exhibits Jemmy’s ability to engage – or enrage – all parties. In Vindication the road from word choice commentary to human rights paeans is paved with a matchless command of language and an astonishing breadth of knowledge that carries the reader as if caught in an uncontrollable torrent of ideas. The Halifax Letter exhibits Tory gentility while Jemmy attacks with the brute force of his education unrestrained by the gilding of class. Vindication was designed to pummel Howard into resignation, and yet it also served to add another facet to a philosophy that never was out of sight of current political circumstances.
In The Rights of the British Colonies Asserted and Proved, Jemmy asserted that Parliament had the power to tax the colonies but not the right. In contrast, Vindication declares, “It is certain that the Parliament of Great Britain hath a just, clear, equitable, and constitutional right, power, and authority to bind the colonies by all acts wherein they are named.” Just to further incite the fellow radicals, Jemmy makes it clear: “No less certain is it that the Parliament of Great Britain has a just and equitable right, power, and authority to impose taxes on the colonies, internal and external, on lands as well as trade.” Parliament has the right but does not have the right? A contradiction is evident, but Otis employed multiple meanings with the term “right.” Jemmy quoted Jeremiah Dummer in his first pamphlet when Dummer used “right” to mean fairness – doing what’s right. In Vindication, however, Otis modified his definition of “right” to denote legal ability – having the right to do something. Now, whereas power indicated capability, right indicates legal ability. And Howard’s deceptive argument about representation required Jemmy to address the difference between Great Britain’s House of Commons and Parliament. In a sense, the colonies are represented in Parliament, but Howard’s argument “was not of the sole and separate power and authority of the House of Commons but of the authority of that august and transcendent body the Parliament.” To say that the colonies are represented in Parliament is not to say that they are represented in the House of Commons. To make the point clear, Jemmy adds:
The supreme legislative indeed represents the whole society or community, as well the dominions as the realm; and this is the true reason why the dominions are justly bound by such acts of Parliament as name them. This is implied in the idea of a supreme sovereign power; and if the Parliament had not such authority the colonies would be independent, which none but rebels, fools, or madmen will contend for.
Of course Parliament controlled the colonies; if it didn’t then the colonies would be independent. So Otis first agrees with the opposing argument that Parliament has full control over the colonies, and then he neutralizes it by redefining the primary operators. While Otis confirmed that the colonies were not actually represented in the House of Commons, he agreed that non-voting regions in England were “justly deemed as represented.” Nonetheless, he asserted that the colonists were “as perfect strangers to most of [members of the House of the Commons] as the savages in California,” and such government was, at least, impractical. Yet Otis veered again, concluding that
‘Tis admitted the Parliament have the same right to levy internal taxes on the colonies as to regulate trade, and that the right of levying both is undoubtedly in the Parliament. Yet ‘tis humbly conceived and hoped that before the authority is fully exerted in either case it will be thought to be but reasonable and equitable that the dominions should be in fact represented.
Howard had recommended that Parliament “frame some code and therein adjust rights of the colonies,” to which Jemmy retorted:
If I mistake not, there is in the air of this period the quintissence of a mere martial legislator, the insolence of a haughty and imperious minister, the indolence and half-thought of a petit-maitre, the flutter of a coxcomb, the pedantry of a quack, the nonsense of a pettifogger. A strange gallimaufry this .... Codes, pandects, novels, decretals of popes, the inventions of the d___l [devil] may suit the cold, bleak regions [of] Brandenburg and Prussia or scorching heats of Jamaica or Gambia; but we live in a more temperate climate, and shall rest content with the laws, customs, and usages of our ancestors, bravely supported and defended with the monarchy, and from age to age handed down.
And yet in this Vindication and in Considerations, to be published three months later, Otis maintains the right to depose a ruler who attempts to establish a “tyranny” or “enslave” the people. But despite much analysis, Jemmy develops no means to limit parliamentary power, and per
haps he couldn’t, for the establishment in England has issued a stern and definitive warning. To a significant degree, Vindication is as much Otis’s response to Howard’s Halifax Letter as it is to Blackstone’s Commentaries. Blackstone was a failed lawyer-turned-Oxford professor who began to write down his lectures on English common law; the first volume of his lectures was printed in 1765 and quickly dispatched to the colonies.
Blackstone’s objective in Commentaries was to buttress the establishment, and he was conscientious of offending those in power and sought to reassure them that their behavior was just and prudent. In 1761, as Blackstone was writing Commentaries, he was appointed a Kings’ Counselor, a decade after Otis was appointed to a similar position in Massachusetts Bay colony. Also in 1761, Blackstone was elected to the House of Commons, where a few years later he would vote against the Stamp Act’s repeal. Opposition in Parliament even then accused Blackstone of being an unthinking cog in the Whitehall machine, and when confronted with passages from Commentaries that seemed not to support Whitehall’s positions, Blackstone rewrote the passages for the next edition. Blackstone’s solicitude of the establishment was repaid when he was knighted and appointed Justice of the Court of Common Pleas in 1770.
