Читать книгу Collected Political Writings of James Otis - Otis James - Страница 8

HISTORY REMEMBERS James Otis Jr. (1725–83) for three things.¹ According to John Adams, Otis’s argument in the Writs of Assistance case of 1761 “began the revolution in the principles, views, opinions, and feelings of the American people.”² By asking the court to render a law “void,” Otis also presaged our modern ideas of judicial review. In addition, Otis is remembered for his intellectual and political leadership of the colonial cause in the 1760s. He wrote some of the most influential essays in opposition to the Stamp Act and coined the phrase “taxation without representation is tyranny.” The Stamp Act Congress was his idea. Finally, Otis is remembered as “crazy James.” In the late 1760s Otis gradually lost his mental composure, and was ultimately exiled from Boston to the countryside. Otis was not so consistent a patriot as Samuel Adams or Patrick Henry, and he could be violent in political combat, leading to speculation that his mental instability had something to do with his political inconstancy and his passionate outbursts against his enemies. All of Otis’s claims to fame—his argument in the Writs case, his revolutionary writings, his intemperance, and his rhetorical or real inconstancy—can be seen in this volume of his writings.

This volume has three parts, containing Otis’s writings on the Writs of Assistance case, on intracolonial matters in Massachusetts in the early 1760s, and on the dispute between Anglo-America and Great Britain of the 1760s, in addition to a few other newspaper essays from Otis’s pen. As a whole, these texts represent the vast majority of Otis’s identifiable political writings.

James Otis, Jr., was born in Barnstable County, Massachusetts, in 1725 to James and Mary Allyne Otis. The Otises were an old Plymouth family of

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some distinction. In the seventeenth and eighteenth centuries, Otises had been known to sit on the Massachusetts council. His father, Colonel Otis, was a second son. As such, he inherited fewer claims to power and place than did his elder brother. One could say the same about the Otis family’s place of origin. Barnstable was in Plymouth. Although it was founded first, Plymouth had long played second fiddle to the Massachusetts colony, a trend that continued after the colonies were merged into the colony of Massachusetts Bay in 1691. Colonel Otis was a successful self-taught lawyer and politician. He rose to become speaker of the Massachusetts House of Representatives, and ultimately to a seat on the colony’s council. The elder James Otis rose through grim determination, penny counting, and deal making. The powers that be in Massachusetts sometimes regarded him as a bit of a political hack, and treated him accordingly. His eldest son and namesake sought to lead a more gentlemanly life.

Jemmy, as young James Otis was known, sought refinement in the republic of letters. He appears to have been an indifferent student as a youth, doing not much more than was required of him to enter Harvard College in 1739. When the Great Awakening hit the college in 1740–41, it energized young Otis, first in religion, but ultimately in study. Once lit, the fire of study burned in him to the end of his days. Determined to recover lost time, Otis locked himself up in his study. One day Jemmy’s classmates dragged him from his books and demanded that he play his fiddle so that they might dance. After complying, Otis halted abruptly and exclaimed, “So Orpheus fiddled, and so danced the brutes,” and ran off. A young man’s time was better spent with his books than at the dance. The college honored Otis with a speaking part at his graduation in 1743.

After leaving Harvard, Otis devoted himself to further study. In time, he would write a treatise on Latin prosody and another on Greek prosody. He published the former in 1760 but, as the colonies lacked the equipment to print Greek, he never published the latter, and ultimately destroyed the manuscript. When the time came to choose a profession, Otis turned to law. Law school not having been invented yet, students in Otis’s day learned the law as apprentices to members of the bar. Otis studied under the tutelage of Jeremy Gridley, the leading lawyer of the colony, and the most philosophical member of its bar. According to Gridley, law was a moral discipline. “It was a favorite saying of Gridley that a lawyer ought never to be without a book of moral philosophy on his table,” John Adams wrote.³ Members of the bar

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understood themselves to be servants of the law. And law, they thought, tethered communal standards of right to a higher law. That was the law to which Otis was attached when he joined the bar in 1748.

Otis rose quickly. He was a diligent student, and soon became deeply learned in the law. He also became an accomplished courtroom orator. James Putnum, a leading lawyer in the colony, said that “Otis was by far the most able, manly, and commanding character of his age at the bar.”⁴ That Colonel Otis was a rising politician and lawyer did not hurt his son’s ascent either. The elder Otis served the colonial governors of the 1750s well and ingratiated himself to the leading faction in colonial politics, which was led by Lieutenant Governor Thomas Hutchinson. His son’s obvious talents, his diligence, and his expanding practice, combined with his connections, allowed him to marry Ruth Cunningham, the beautiful daughter of a wealthy merchant, in 1755. In the late 1750s he became a justice of the peace for Suffolk County (the county in which Boston sits), and he also served as the colony’s deputy advocate general.

Otis’s steady rise in the Massachusetts political establishment changed in 1760 and 1761, when he abruptly resigned from his post as deputy advocate general and took the side of Boston’s merchant community in the Writs of Assistance case. The reasons Otis deserted the government’s side have been the subject of speculation since his day. One side claims that personal pique motivated Otis. Otis, they say, was upset that Francis Bernard, the colony’s newly appointed governor, made Hutchinson chief justice of the colony’s Superior Court in late 1760. In so doing, Bernard passed over Colonel Otis, to whom Governor Bernard’s predecessors had promised the next vacant seat on the court.⁵ Others say that principle motivated Otis. He thought that writs of assistance were instruments of tyranny, and he could not in good conscience defend them, as he would have had to were he still the government’s lawyer.

Writs of assistance were a form of general search warrant that the court gave to customs agents. These writs granted broad discretion to search ships, docks, and other like places. Those who held the writs (and they could be transferred from one person to another) could claim a percentage of whatever contraband was found. Two events underlay the case. First was the French and Indian War, or Seven Years’ War, as it was called in London, between

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Britain and France (and other nations). New Englanders had a nasty habit of evading customs duties and trade restrictions. They did not cease trading with French colonies simply because Britain and France were at war. Writs of assistance were an effective enforcement tool. In addition, all writs terminated upon the death of a king and had to be reissued. In 1760, George II died, and his grandson was soon crowned George III. New writs had to be issued in his name. Not long after they were issued, Boston’s merchant community challenged them in court.

Because of personal animus toward Hutchinson, principled antagonism to the writs, or some combination thereof, Otis argued forcefully against writs of assistance, and the case became an important one. Years later, John Adams recalled how Otis’s argument had electrified the audience: “Every man of an immense crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”⁶

As the Writs case progressed in 1761, Otis took a leadership role in the Massachusetts lower house, to which the people of Boston elected him in 1761. He would remain in the House for a decade. More often than not he was the leader of the “popular party,” opposed to Thomas Hutchinson and his connections. At first, Otis hoped to cultivate Governor Bernard, and perhaps separate him from Hutchinson’s camp. By the mid 1760s that effort had failed, and Otis grew more willing to criticize the governor.

Otis’s writings from these years shed light on the rise and progress of his career in opposition politics and introduce many of his central political ideas. In his Boston Gazette essay of April 4, 1763, for example, Otis discusses the charge that his main political motivation was personal animus toward Hutchinson. Hutchinson claims that Otis threatened to “set the Province in a Flame” if he, rather than Otis’s father, took the vacant seat on the Massachusetts Superior Court in 1760. Otis wrote that he had “not the least Remembrance of my having ever used such Expressions” and asserted that his actions were best explained by his adherence to the true principles of British liberty. “The true Principles of Loyalty & Obedience,” he wrote, “are quite consistent with the warmest Love of Liberty and ones Country.”⁷ Resistance to tyranny was obedience to the British constitution.

When read closely, Otis seems to suggest that Lieutenant Governor Hutchinson is the one who threatens to set the province aflame—through

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his monopolization of high offices. Hutchinson was lieutenant governor, chief justice of the colony’s Superior Court, and a member of the colonial council, in addition to holding other offices. Members of his immediate and extended family held several other high offices in the colony. By monopolizing offices, Otis suggests, Hutchinson’s faction destabilized the colony. At times Otis seemed to look for excuses to argue with Hutchinson. Even so, he always tried to ground his arguments with principles. This comes through in his essays on monetary policy from these years, and his defense of Jasper Manduit, the agent for Massachusetts Bay in London. Hutchinson’s faction and Otis’s each had a different candidate for the agency.

In these early political writings, we see Otis’s engagement with the main currents of political thought in his day. Otis quotes the same passage of eighteenth-century French political philosopher Montesquieu that John Adams would quote in the first volume of his Defence of the Constitutions and that James Madison would quote in Federalist 47: “There is no liberty, if the power of judging be not separated from the legislative and executive power.”⁸ To be sure, it was convenient for Otis to cry up checks and balances when the principal recipient of his political fire held offices in all three branches of government. But it is not always possible, and might not always be wise, to draw a wall of separation between principled and interested motives. There was no greater example of arbitrary power, Otis thought, than the union of legislative, executive, and judicial powers. To join those three powers together was to make an officer judge in his own case.

If one reads Otis’s writings with great care, one might find that there is some truth to his claim that “Modern Politicians and modern Politics are my Aversion.”⁹ Even so, in these early essays Otis paid close attention to the political ideas of John Locke, the Whig political theorist of the seventeenth century. Otis’s first citations of Locke come in essays on monetary policy. Hutchinson, Massachusetts’s authority on money, supported a fixed silver standard, and he cited Locke as an authority. Otis, by contrast, was a bimetalist. To criticize Hutchinson, he had to criticize Locke. More important, Otis quoted extensively, and with approbation, Locke’s political ideas. The Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts-Bay, which Otis published in 1762, turned to Locke’s Second Treatise on Government to describe the nature, purpose, and limits

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of government in general and a house of representatives in particular. This Lockean argument made the Vindication of the House an important tract of the American Revolution.

Events soon drew Otis from merely provincial concerns to a larger stage. The end of the French and Indian War in 1763 precipitated a constitutional crisis in the British empire. Britain had amassed a sizeable debt during the war and needed to repay it, and Britons regarded the colonists as their brethren and saw that they were relatively prosperous. Hence it seemed perfectly reasonable to them to ask the colonists to help pay the debt. Since the war had been started in America and since the British spent a good deal of treasure taking Canada away from the French, it seemed doubly reasonable to tax the colonists. In 1764, Britain passed the Sugar Act, an effort to collect revenue from the colonies by enforcing a duty on molasses. At the same time, the British Ministry, under the leadership of George Grenville, indicated that it would soon propose a stamp tax, which became law in early 1765. Most of the American colonists objected. Regarding taxation without representation as tyranny, they were determined to resist. Otis was an early leader of that resistance, boldly declaring that Parliament had no right to tax the colonists.

Otis was not merely a leader of the opposition to Parliament; he was also an imperial theorist. In his political writings from 1764 onward, Otis thought through the imperial problem. In March 1763, Otis published a short advertisement in the Boston Gazette indicating that he would soon publish a piece on “the present social state of the Province of Massachusetts Bay, with . . . a state of the Rights of the Colonists in general.” The Sugar and Stamp acts would spur Otis to think deeply about the subject. In a series of essays he published between 1764 and 1766, Otis elaborated his thoughts about what the British Empire’s constitution was and what it ought to be. First and foremost, Otis held that there ought to be a just number of colonial representatives in Parliament. Parliament would then have the same right to legislate in the colonies as it had in Wales after it became part of the realm. In addition, Otis thought that the entire mercantile program ought to be rethought and all restrictions on colonial ports, industry, imports, and goods repealed—or at least made exactly the same as in London. According to the Hat Act of 1732, for example, colonists could catch, cure, and export furs and pelts, but not finished hats. Otis thought that the act was arbitrary and unjust, as it created an inequality between periphery and center. “Can any one tell me why trade, commerce, arts, sciences and manufactures, should not be as free for an American as for an

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European?”¹⁰ A reformed British Empire could not allow such discrimination to exist.

Otis’s most systematic political treatise is 1764’s The Rights of the British Colonies Asserted and Proved. In the pamphlet, Otis revealed his basic political premises. Government, he wrote, “has an everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary.” From that conclusion, he drew the implication that government is “founded on the necessities of our nature.”¹¹ However, he also held that “the form and mode of government is to be settled by compact.”¹² In other words, he held that where men live, there will be governments, a few hermits to the contrary notwithstanding. On the other hand, he also found that the best way to create a government, or to change its form, was by compact. No compact, however, could be absolute. As in 1762, he suggested that checks and balances were a useful instrument of prudence to keep the government in line. Among the checks he noted was the one he highlighted in the Writs case: judges rendering legislative actions void. Ultimately, Otis concluded that “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.” As in 1762, to discover the nature of colonial rights, he turned to John Locke. Otis did not fail to notice the broader implications of his argument. He made strong statements against slavery. “Does it follow that tis right to enslave a man because he is black?” he asks. “Will short curl’d hair like wool, instead of christian hair, as tis called . . . help the argument?”¹³

The great question that puzzled Otis’s contemporaries and has puzzled scholars since is whether Otis was consistent over time. In his major writings of 1765, A Vindication of the British Colonies, Against the Aspersions of the Halifax Gentleman, in his Letter to a Rhode-Island Friend; Brief Remarks on the Defence of the Halifax Libel on the British-American-Colonies; and a series of essays printed in the Boston Gazette from late July to early September 1765, later printed anonymously in London under the title Considerations on Behalf of the Colonists. In a Letter to a Noble Lord, in addition to a series of essays that appeared in the Boston Gazette in late 1765 and early 1766 under the pen name “John Hampden,” Otis seemed to retreat from the bold proclamations

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of colonial rights he made in 1764. After 1764, Otis seldom published such strong statements about the rights of men and almost never quoted Locke in print. He never again suggested that courts might void acts of Parliament. In some of these writings, he seemed to suggest that Parliament had a right to tax the colonists. In the spring of 1765 he called for a Stamp Act Congress, and when it convened in the fall of that year he was one of its leading lights. Yet he was reluctant to sign the proclamation of rights issued by that very congress. Readers will have to draw their own conclusions, but it might be helpful to keep a few things in mind. Otis never allowed that Parliament ought to tax the colonists unless and until they were represented in Parliament, and he never ceased to suggest that putting Americans in Parliament was the best solution to the problem. What changed was his discussion of Parliament’s rights in the matter. It might be that he simply changed his mind, or perhaps he simply changed his argument.¹⁴

After the repeal of the Stamp Act in early 1766, Otis began to disappear from the stage. He published little in the newspapers, and he began to play a smaller role in colonial politics. Otis had befriended John Dickinson at the Stamp Act Congress, and in 1767 Dickinson sent Otis the manuscript of his “Farmer’s Letters.” Otis saw to their publication in Boston. In his biographical sketch of Otis, Shipton suggests that Otis seems to have understood that he was gradually losing his mental composure and tried to wrap up his affairs.¹⁵ Between 1766 and 1770, Otis periodically did rouse himself and his fellow colonists against encroachments upon their rights.¹⁶ The second-to-last essay in this collection, Otis’s essay of April 27, 1767, much of which was advice to voters in Massachusetts, sounds, in part, like a valedictory. From his perch in the House, Otis continued to oppose Hutchinson and his connections. In September 1769, Otis took umbrage against customs agents in Massachusetts who had called him a traitor. He and John Robinson, one of the agents, soon came to blows. The most contemporary accounts of the brawl suggest that Otis walked away relatively unscathed. But according to subsequent accounts, which have become part of the Otis legend, Otis suffered a great blow to the head, and that is what did him in.

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Whatever the cause, by 1770 Otis was no longer the man he had been. His family and friends eventually saw to it that he was shipped out of Boston and cared for on a farm in the countryside. In his remaining years, he had occasional lucid intervals, and periodically returned to Boston and tried to restart his life, but he always relapsed. In these years, he also burned almost all of his personal papers, which is part of the reason his biography will always remain incomplete. Ultimately, he sided with his fellow Americans. When the revolution came, he disinherited his Tory daughter. The end for Otis came in 1783, as the Peace of Paris securing American independence from Britain was being finalized. On May 23 of that year, he stood in the doorway of the home at which he was staying and a bolt of lightning took him. Family and friends, shocked by the event, recalled that that was how he wished to go.