by Nathan Allen
Under the leadership of Otis, Cushing, and Sam Adams, the House then decided to make perhaps the most audacious pre-1776 gambit; they would issue what amounted to a summary of Otis’s earlier pamphlets in an official declaration. Otis writings, called everything from “Letters of Gold” to the ramblings of a treasonous madman, would now be the official proclamation of the people of Massachusetts. And furthering Otis’s objective to increase communication and cooperation among the colonies, the letter would be directed not to the colonist’s lobbyist, Parliament or the King as the Stamp Act Resolves were, but rather the letter would be directed to the people’s assemblies of the other colonies. The letter was soundly defeated in the House by a two to one margin, with many members fearing that Whitehall and the King would conclude that the letter sought to establish a government outside of Britain’s control. Two weeks later, many House members had left to go home; Otis and Sam Adams quickly moved first to vote again on the letter and then to vote to expunge the record of the previous vote. Both passed, and the result was issued on February 11, 1768 with the laborious title “A circulatory Letter, directed to the Speakers of the respective Houses of Representatives and Burgesses on this Continent ; a Copy of which was also sent to Dennis DeBerdt, Esq; their Agent, by Order of the House, that he might make use of it, if necessary, to prevent any Misrepresentations of it in England.” Bernard quickly dispatched a letter to Lord Shelburne, writing on February 18 that the House’s Letter was “calculated to inflame the whole Continent.”
The Letter has the hallmarks of a typical Otis “counterwork.” It begins innocently, stating its purpose to address “a common concern” and its goal that the colonies “should harmonize with each other.” Then it quickly confirms that “his Majesty’s high Court of Parliament is the supreme legislative power over the whole empire,” which echoes Otis’s declaration from Considerations confirming that Parliament and the King are “the supreme and universal legislature of the whole empire.” After these assurances, the Letter makes its brazen declaration:
That it is an essential unalterable right in nature, ingrafted into the British constitution, as a fundamental law, and ever held sacred and irrevokable by the subjects within the realm, that what a man hath honestly acquired is absolutely his own, which he may freely give, but cannot be taken from him without his consent : That the American subjects may therefore, exclusive of any consideration of charter rights, with a decent firmness, adapted to the character of free men and subjects, assert this natural, constitutional right.
This statement is in essence a summary of Otis’s previous positions regarding natural rights, the irrelevance of the charters, and the necessity of consent. The Letter quickly performs a “counterwork” and asserts in the same paragraph that this is “their humble opinion, which they express with the greatest deference.” Otis in Rights makes a similar claim to natural rights “with all humble deference,” and in all his pamphlets asserts his opinion with humility.
The Letter continues to hammer the point about natural rights and consent: “ … imposing Duties on the people of this province, with the sole and express purpose of raising a revenue, are infringements of their natural and constitutional rights, because, as they are not represented in the British Parliament, his Majesty’s Commons in Britain, by those Acts, grant their property without their consent.” Representation in parliament is the only solution, as Jemmy had observed, and yet, “This House further are of opinion, that their constituents, considering their local circumstances, cannot by any possibility be represented in the Parliament.” The only solution is “That his Majesty's royal predecessors, for this reason, were graciously pleased to form a subordinate legislative here.” In 1702, the first session of the new Massachusetts House of Representatives with John Otis as one of its leaders produced a resolve claiming that the “house may use and exercise such Powers and Privileges here as the house of commons in England may and have usually done there allways having Respect to their Majesties Roy[al] charter. …” This new legislative body in 1702 immediately staked claim to a position equivalent to the House of Commons and subject only to the King and charter, which was just as quickly rejected by Parliament. And so almost seven decades later the issue was revisited, and yet the demographic characteristics and national debt made representation in Parliament or local control dead issues. Otis, Cushing and Adams almost certainly knew this, and yet, again employing Jemmy’s strategy, they needed to appear reasonable and offer solutions along with making claims. A component of appearing reasonable included listing grievances specific enough so that the referent was clear to all readers yet general enough so the grievance applied to all colonies. The crowning complaint of the short list was “officers of the Crown may be multiplied to such a degree, as to become dangerous to the Liberty of the people.” Inherent in this complaint was that the size of government, regardless of purpose or justification, must be limited in order to protect the “Liberty of the people.” The Letter made clear the dire consequences of not heeding the House’s warning, as it advised that the Ministry should “take notice” in order to prevent “mutiny.” It was as close as any official document had come to invoking the specter of independence.
The remarkable Circular Letter was not only a nimble summation of Otis’s previous pamphlets, but it was also a bridge from those early rebellious pamphlets to the Declaration of Independence issued seven years later. The “essential unalterable right in nature, ingrafted into the British constitution, as a fundamental law, and ever held sacred and irrevocable” became the “certain unalienable Rights” in the Declaration. “The consent of the people” became “the consent of the governed” and “imposing Duties … without their consent” became “imposing Taxes on us without our Consent.” Tellingly, Jefferson’s draft of the Declaration employed “consent” twice among the 1,685 words that comprise the body. When edited, chiefly by John Adams, 363 words were deleted, rendering the Declaration 22% shorter, and yet the emphasis on consent was increased, and the word was inserted a third time just to be certain that no one could misunderstand the source of government authority.
Perhaps the most direct connection from Jemmy’s early pamphlets to the Declaration is the latter’s treatment of property. For many, the Lockean notion of “property” had provided both the foundation for and justification of government. Jemmy took great pains to abolish a direct connection between government and property; while in Rights, he stated, “The end of government being the good of mankind, points out its great duties: It is above all things to provide for the security, the quiet, and happy enjoyment of life, liberty, and property,” he quickly averred that government by consent directly results in the protection of property. Therefore, as long as government authority is founded on consent, property rights are protected, thus rendering “property” and “consent” redundant. In Considerations, Jemmy observed, “If a man has but little property to protect and defend, yet his life and liberty are things of some importance,” thus illustrating that government’s focus should be the “happy enjoyment of life, liberty.” Perhaps the most astonishing aspect of the Declaration is that while Jefferson’s draft contained but a single reference to property, Adams and the drafting committee excised this single reference so that it did not once directly refer to property. A document that failed to reference property cannot properly be called a child of Locke, and this was a philosophical position Otis initially staked out in the colonies in 1762.
The Declaration replaced “property” with a phrase that seems so curious to the modern mind: “the pursuit of Happiness.” And yet the phrase employed as the people’s interest and the government’s objective was not remotely exotic to the Massachusetts rebels. The Circular Letter makes clear that a problem of corrupt governments is that they “endanger the happiness” of the people. And “the pursuit of Happiness” is a phrase that directly echoed Jemmy’s Considerations, in which he declared that the principal purpose of his political activism was that “The inhabitants … of th
e dominions of the British crown … who I hope e’er long to see united in the most firm support of their Prince’s true glory, and in a steady and uniform pursuit of their own welfare and happiness.” People pursuing “their own welfare and happiness” connoted a small government that derived authority through consent. It’s not happenstance that Jemmy employed some variation of “happiness” 34 times in Vindication, Rights and Considerations.
The Declaration referenced the “patient sufferance of these Colonies” and asserted that “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms. …” Such a statement was made possible by both Jemmy’s repeated assertions of humility and the Circular Letter’s proclamation that its firm message was delivered “in the most humble terms” – the precise phrase that’s repeated in the Declaration. The Massachusetts House’s Circular Letter of 1768 is as a remarkably prescient predecessor to the Declaration of Independence as it is a summation of Jemmy’s radical pamphlets.
The Circular Letter was also transmitted to the province’s lobbyist “to prevent any Misrepresentations of it in England” precisely because the House had long suspected that Governor Bernard was sending letters to the ministry impugning their motives and distorting their objectives. After the issuance of the Circular Letter, the House demanded copies of Bernard’s letters; expectedly, Bernard refused, and the rebels took this as an admission of guilt, a conclusion with which the Boston papers largely concurred. The Gazette judged Bernard “totally abandoned to wickedness.” The Council deemed the article “impudent libel” while a House committee that included Otis and John Hancock affirmed freedom of the press as a foundation of liberty. Bernard, apoplectic as usual, asserted that Jemmy “behaved in the house like a madman” in defense of the Gazette article and admonished the Council members against pursuing the matter lest they jeopardize their political futures. The Council and Bernard declined to indict anyone involved with the Gazette article for libel doubtless out of fear; Bernard knew that “two of the chief leaders of the faction in the House (Otis and Adams) are the principal managers of the Boston Gazette.” Indictment of a sitting House member for libel was not only legally dubious but also existentially foolish. Between the August 1765 nights of terror that destroyed homes and businesses and the May 1766 statewide political campaign that castrated the once powerful Council, the oligarchy feared any official moves against Otis and Adams. Hutchinson, though, saw no reason not to move against Edes and Gill; the chief justice argued for a grand jury indictment, hoping to shutter the Gazette and “eradicate the absurd notion of the liberty of the press,” as he confessed was his goal in a March 23 letter to Richard Jackson. Out of a probable confection of fear and loyalty, the grand jury refused to indict anyone.
And just as the House had never previously formally issued a summation of Jemmy’s pamphlets, the ministry had never formally declared such words seditious. In April, a mere two months after its issuance, the whispers of sedition could be no longer ignored. On April 21, the Secretary of State for the Colonies
Lord Hillsborough, upon direct order from King George, sent a copy of the Massachusetts Circular Letter along with a list of “his Majesty’s commands” to all colonial governors. He reported that the Letter would “encourage an open opposition,” and each governor was to “exert your utmost influence to defeat this flagitious attempt to disturb the public peace by prevailing upon the Assembly of your province to take no notice of it, which will be treating it with the contempt it deserves.” Hillsborough, and by direct implication the King, challenged the colonial assemblies to prove “their reverence and respect for the laws, and of their faithful attachment to the constitution” by “showing a proper resentment of this unjustifiable attempt to revive those distractions which have operated so fatally to the prejudice of this kingdom and the colonies.” If any assembly exhibited anything other than contempt for “this seditious paper,” then it was the governor’s “duty to prevent any proceeding” by suspending or dissolving the assembly. And so upon the King’s command, Governor Bernard had no choice but to attempt to obtain the rescission of “this seditious paper.” A week before the rescission vote, Jemmy delivered a rousing speech against the oligarchy and deference. He observed that “the unthinking multitude are taught to reverence …. as little deities” the men of the oligarchy while the oligarchy looks down upon everyone else as “vulgar.” And yet, he questioned why such men were esteemed, for “there are no set of people under the canopy of Heaven more venal, more corrupt and debauched in their principles.” He urged the Bostonians not to revere the English oligarchs for their Cambridge and Oxford educations, as such places teach little other than “whoring, smoking, and drinking.” Otis’s harangue transformed Captain Kidd’s derrière salute into a political position, an issue of freedom of speech and of the press. And “his Majesty’s commands” as communicated in Hillsborough’s letter transformed what could have been akin to a local Land Bank fiscal crisis into a continental emergency. “His Majesty’s commands” would ensure that Massachusetts’s bold claims about “natural and constitutional rights” and “consent” would not “waste its sweetness on the desert air.”
Of the 109 House members in the 1767-68 legislative year, only 17 conceded to Bernard’s request and voted for rescission. The “Glorious 92” who brazenly rejected “his Majesty’s commands” were celebrated throughout the colonies. Bernard obediently dissolved the assembly, several other assemblies approved the Circular Letter in some fashion, and the disparate colonies previously tepid to the Boston rebels’s talk of rights and consent and repeated efforts to “harmonize with each other” transformed into an energetic and increasingly unified group dedicated to resisting authority. The dissolved House then petitioned the king to have Bernard removed from office; shockingly, the cowed Council concurred. Bernard believed that given the direction that Massachusetts politics had taken, he wouldn’t be able to find 10 supporters in the House the following year – and that was perhaps optimistic. There was no doubt that the Court Party was dead.
The “Glorious 92” “Anti-Rescinders” were celebrated throughout the colonies. Paul Revere smithed a silver punchbowl engraved with the names of the 92, and the bowl was baptized in rebellion when 18 of the “Anti-Rescinders” including Otis, Adams, Hancock and the notorious smuggler Daniel Malcolm drank from it on August 1, the same day that Sons of Liberty mobs roamed the streets of Boston strictly enforcing the non-importation of many British goods. Parties were held in Newport and Marblehead; in Philadelphia, the lyrics of the official march of the Royal Navy were changed, thus transforming “Heart of Oak” into the “Liberty Song.” Before the end of the year, every colonial legislature save for New Hampshire had in some way concurred with the Circular Letter. In Pennsylvania, Governor Penn observed that “even those persons who are the most moderate are now set in a flame and have joined in the general cry of Liberty.”
The Circular Letter wasn’t rescinded, but neither was the tax. To enforce the tax, Whitehall created the American Board of Customs Commissioners and three additional juryless Vice-Admiralty Courts; one of the new courts would be in Boston, where the Board of Customs would be headquartered. And the man chosen to direct the Board of Customs was none other than the most hated customs official in the colonies, Charles Paxton. The first recorded opposition to the Revenue Act in Boston was a town meeting chaired by Jemmy Otis. The meeting concluded that the response to a new tax on imported goods would be not to import the goods. The non-importation movement’s slogan as printed in the Gazette on November 30, 1767 was “No Mobs and Tumults, let the Person and Properties of our most inveterate Enemies be safe – Save your Money and you save your Country.” Of course there would be no public approval of mob violence, but the mobs would certainly encourage merchants to comply with the non-importation pact. And to which “Country” did the slogan refer? At the meeting, Otis urged calm and reminded the assembled crowd that a previous generation had to petition Charles I for fifteen y
ears “before they would betake themselves to any forceable measures.” On January 12, 1768, the House sent the argument to their London agent in a letter Otis wrote: “We are taxed, and can appeal for relief, from their final decision, to no power on earth; for there is no power on earth above them.” Otis could not bring himself to print the logical conclusion, but perhaps it need not be printed. Years earlier, Otis had already referenced the final resort: an appeal to heaven and the longest sword. And the reference to the “fifteen years” was an uncanny coincidence, for it would be fifteen years from what John Adams labeled the first shot Jemmy fired in the court room at the Writs of Assistance case to the shots fired at Lexington and Concord.
The Customs Commissioners concluded that Otis’s Circular Letter refuted their basic authority and was blatantly seditious; they requested that Whitehall send armed men to assist in the collection of taxes. Bernard agreed that any enforcement of taxes would be futile without a significant police force but feared making any official request himself. He asked the Council to make the request in a secret poll, but the Council members unanimously declined. The mob responded to the Commissioners’s presence by hanging an effigy of Commissioner Paxton on the Liberty Tree, near Boston Common, on March 18, the anniversary of the Stamp Act’s repeal. On June 8, the ministry finally concurred and Hillsborough ordered General Gage to send at least one regiment to Boston. Otis noted that the presence of armed men escorting customs officers and marching down the streets would only serve “to hasten on with great rapidity events which every good and honest man would wish delayed. …” He still couldn’t say independence, but the conclusion was clear. Bernard agreed that the news of the troops impending arrival may only “hasten” riots, so he plotted to withhold official proclamations until the troops were already in Boston. In September, Gage sent a deputy to Boston to make arrangements for the troops. Bernard informed the Council that he had private knowledge of the troops’s arrival but did not have any official information. The news quickly spread throughout Boston, and a town meeting was scheduled for September 11, 1768. Bernard then learned that a barrel of turpentine had been affixed to a pole in Beacon Hill and was to be lit when the British troops arrived in order to alert the mobs. Bernard asked the Council to address the issue, and the Council asked the town’s Selectmen to address the issue. The Selectmen refused, and the Council next asked the Sherriff to remove the barrel, which he did.
