Collected Political Writings of James Otis. Otis James

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СКАЧАТЬ 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 СКАЧАТЬ