The Glorious Cause: The American Revolution, 1763-1789 (20 page)

Otis did not make much out of his disappointment until shortly after Francis Bernard replaced Thomas Pownall as governor in 1760. Colonists in Massachusetts knew Francis Bernard before they ever laid eyes on him. For Bernard was a familiar sort of figure in the colonies, a placeman who owed his appointment to his connection at "home." In this case the influential English backer was Lord Barrington, Bernard's brotherin-law and Secretary at War. Bernard had been governor of New Jersey, a place he thought beneath his ability, or at least beneath his hopes for financial reward. Bernard needed money to keep his growing family happy; all he had of his own was a rich ambition. Unfortunately, he lacked brains as well as money.
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Bernard arrived with instructions to enforce the Molasses Act -- to stop smugglers, in other words. There is reason to suppose that he regarded these orders approvingly, for the governor received one-third of

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the proceeds of all forfeitures of smugglers. Bernard immediately made his weight felt, light as it was, by remaining aloof from the Otis and Hutchinson factions and dealing with the Tyng interest in the House of Representatives. Tyng was a power in the House, but no governor could survive without coming to terms with either the Otis or the Hutchinson group.

Bernard had hardly been in Massachusetts a month when one of those opportunities presented itself that give politicians nightmares. The opportunity was to fill an office sought after by two powerful rivals ( Otis and Hutchinson) -- the office of chief justice left vacant by Samuel Sewall's death. By this time, Otis, fifty-eight years old, was speaker of the House, a formidable power there and among the inland farmers. He insisted that William Shirley, governor from 1741 to 1756, had promised to appoint him to a place on the superior court when a vacancy occurred. The vacancy was obviously there in September, but Francis Bernard quite understandably did not feel bound by Shirley's promise. To disappoint James Otis, Sr., and his tribe of family and followers was to court danger, and so Bernard, who only craved a peaceful and rewarding tenure as governor, delayed while he looked over the field.
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The only other seeker after the office was of course Thomas Hutchinson. Forty-nine years old in 1760, Hutchinson, like Otis, came from an old Massachusetts family. The establishment in Massachusetts had not always considered the family to be entirely honorable, for Anne Hutchinson, great-great-grandmother of Thomas, was one of its founders. Mistress Anne, a notorious antinomian, had been banished in 1638; Thomas Hutchinson had no spiritual leanings and seemed as unlikely a candidate for exile as could be found: a solid Harvard man, a prudent and successful merchant, and a pluralist second to none. A pluralist in eighteenth-century Massachusetts was not one who held several clerical livings; he was an amasser of public offices. Hutchinson in 1760 was a councillor, lieutenant governor of the colony, commander of Castle Island, and judge of probate in Suffolk County. These offices brought him around £400 sterling a year.
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Hutchinson's large appetite inspired his family to emulate his example (the only inspiration respected in the eighteenth-century clan). Andrew Oliver, his brother-in-law, was secretary of the Province, judge of the inferior court of common pleas in Essex County, and a councillor.
Two

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other relatives by marriage, Peter Oliver and Benjamin Lynde, were justices of the superior court and councillors. This list could be extended without difficulty.

Governor Bernard may have thought it unkind not to feed this voracious tribe; more likely, he learned that as Chief Justice Hutchinson would be more disposed to enlist in the fight against smugglers than Otis. In any event, Bernard appointed Hutchinson in November and the fight was on -- with the Otis family, their adherents, including many merchants, and a majority of the House opposed to the Bernard-Hutchinson administration.
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Otis had little trouble lining up enemies to the administration, for Bernard and the local vice admiralty court had been playing dirty in the rough game of suppressing smugglers. According to the law, forfeitures were to be divided into three equal parts, with the governor taking one, the officials making the seizure another, and the province the third. In practice, however, the province collected its third in a rather depleted state, for informers were paid out of it. Fairness seemed to require that such expenses be equally distributed. Fairness may not have moved Otis and his merchant supporters who, after the battle with the administration was joined, persuaded the House of Representatives to direct the province to sue for its full third. The case dragged through the year 1761 and into 1762, when the superior court, guided by Chief Justice Thomas Hutchinson, reversed a lower court ruling and decided against the province.
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While this case was being heard, another of greater consequence for merchant interests was decided. This involved the writs of assistance, the general search warrants used by Customs officials in the enforcement of the navigation acts. The warrants had expired at the death of George II and had to be renewed. The question before the Massachusetts courts involved the legality of writs issued by the superior court. That court could not claim chancery jurisdiction under which the court of Exchequer in England commonly issued the writs, for it after all could not hold the Customs accountable. Oxenbridge Thacher, representing the merchants with James Otis, Jr., made this point in a careful legal argument against the writs after Jeremiah Gridley, appearing for the Customs, argued that the needs of the state took priority over individual liberty. Young Otis ignored all such legal niceties in favor of constitutional argument: the writs of assistance, he maintained, violated fundamental principles of the constitution, and not even Parliament could issue such a

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writ. Thomas Hutchinson remained cool before this brilliant heat and, after consulting the authorities in England, upheld the legality of the writs.
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These struggles generated others: the two sides sniped at one another about the control of political office, the enforcement of Customs regulations, and a host of other matters. In 1763, Bernard, trying vainly to heal a festering wound with an inadequate poultice, offered Otis, Sr., a vacant judgeship in Barnstable County. The senior Otis took it and then proceeded to act in his usual independent way. Bernard enjoyed more success the next year, blocking the House's attempts to protest against the Sugar Act until after Parliament passed it.
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Understandably, the "popular" faction led by the two Otises felt overwhelmed by frustration and failure on the eve of the passage of the Stamp Act. When the legislature met in January 1765 -- barely a month before the Stamp Act was introduced in Parliament -- it discovered that its frustration was to be renewed, not by Governor Bernard or Thomas Hutchinson, but by James Otis, Jr. For Otis was now off on one of his curious aberrations, first voting for the governor's man, Richard Jackson, as colonial agent, and then joining those voting Thomas Hutchinson additional salary as chief justice, salary Otis had opposed successfully three years earlier.

If this performance shocked the House, Otis's next actions stunned all who knew him. In the spring, Otis published two pamphlets which seemed to repudiate the constitutional position he had taken earlier in
The Rights of the British Colonies
( 1764).
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These two new tracts conceded the English case for Parliamentary sovereignty, Parliament's right to tax the colonies, and, in the strangest twist of all, argued that the colonies were represented in Parliament in law if not in fact.

The consternation these arguments produced among his friends may have surprised Otis, who never thought that he had given away his earlier defense of colonial rights, And in a sense he was correct. Both positions rested on an assumption that Parliament was a body determined to correct its own mistakes, which is exactly what Otis urged it to do the year before in
The Rights of the British Colonies
.
At that time, he

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provided an elaborate case for the rights of the colonies; now in the efforts of 1765, he was redressing the balance somewhat by pointing to the sovereignty of Parliament.

To Massachusetts and to the House, Otis's assumptions mattered not at all. He seemed to be a late convert to Parliamentary orthodoxy, and his conversion to English political advocacy did not raise him to sainthood in Boston's eyes; in fact, the town almost decided it could play the game of repudiation too, and in the May election very nearly did not return him to the House. Newspapers in Boston -- never gentle or subtle -- suggested that the administration had bought Otis. The charge was plausible, though untrue, and Otis, a thoroughly shaken man, denied it in a piece he wrote for the
Boston Gazette
in the middle of May. The same day, Samuel Waterhouse, a Customs officer writing for another newspaper, went too far and hit Otis too hard with "light" verse called "Jemmibullero," a parody of Lillibulero. Boston's voters read:

And Jemmy is a silly dog, and Jemmy is a tool;
And Jemmy is a stupid curr, and Jemmy is a fool;
And Jemmy is a madman, and Jemmy is an ass,
And Jemmy has a leaden head, and forehead spread with brass.
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And they decided that perhaps Otis should be given another chance. He did not lead the list of representatives, but he won re-election nonetheless.