Patriots (3 page)

In his opening statement, Thacher argued that simply because the writs were being freely issued in London was no reason for Massachusetts courts to do the same. He denounced the fact that one writ could be used over and over as a wanton exercise of power. His argument might have carried the day. The writs were unpopular, and not every judge took the same pride Hutchinson did in flouting public opinion. But then, in wig and black gown, James Otis stood up to speak, and something profound changed in America.

To John Adams, Otis rose in the hall like a flame of fire. He seemed to overflow with dates, events, legal precedents, classical allusions. His erudition swept everything before him. Although he treated Gridley with great respect, Otis took on each of his arguments and demolished it. Adams thought that Gridley—who was merely doing his duty for the crown—seemed to be exulting in his pupil’s triumph.

What was Otis’ argument? He claimed to be doing nothing more than applying a lesson from the textbooks. Coke’s compilation of English law in the previous century had often challenged the king’s power and called upon judges to nullify any act that went against an Englishman’s common rights, or against reason, or was repugnant or impossible to enforce. Otis took Coke as his authority and made a strong case that any law was void if it violated England’s constitution. But a newcomer to the law like Hutchinson, who had not pored over Coke’s commentaries, accepted Gridley’s version of more recent history. For Hutchinson,
Britain’s Glorious Revolution of 1688 had not only deposed James II but also left Parliament the empire’s supreme authority. The British constitution was now only and whatever Parliament said it was.

But Otis soared beyond that argument. Every man lived in a state of nature, he said. Every man was his own sovereign, subject to laws engraved on his heart and revealed to him by his Maker. No other creature on earth could legitimately challenge a man’s right to his life, his liberty and his property. That principle, that unalterable law, took precedence—here Otis was answering Gridley directly—even over the survival of the state. Then Otis issued a guarded warning to the new king: The writs of assistance represented the sort of destructive and arbitrary use of power that had cost one king his head and another his throne.

Otis turned to the subject of English liberty, particularly freedom at home.
“A man’s house is his castle,” he said, and if a man behaves quietly there he must be as well protected as a prince. As John Adams listened and made notes, he found his attitude toward England changing. Otis’ argument was making him see the mother country as not only powerful but also haughty. This writs case could be merely the beginning. Britain’s politicians might be intending to impose complete control over the colonies’ finances and politics. From now on, every action from Parliament and the king’s ministers had to be weighed carefully to see what motive lay behind it.

Otis had spoken for more than four hours. When he finished, John Adams wanted to rush out and take up arms against the writs, and he was sure every man in the packed hall was ready to join him. The court adjourned with Thomas Hutchinson sensing that his fellow judges might have been stampeded along with Otis’ audience. During their conference, some judges began talking of compromise. One reported that in England writs were now being issued only in specific cases and after very detailed information about possible smuggling. Hutchinson was concerned that any tightening of the procedures might lead to an informant’s name being made public, which would stop men from coming forward to report smugglers. No one else had heard of that change in the law, and the judge remembered only that he had read about it in
London Magazine.
Hutchinson used the uncertainty to buy time and agreed to write to England for clarification. Receiving an answer could take months. Meanwhile, the court held off its ruling until the following year.

Throughout Massachusetts, however, it was clear that James Otis had won his case. When he appeared at Boston’s next Town Meeting, he was greeted with loud applause. Three months later, the town voted overwhelmingly to send him to the House of Representatives. It dismayed Hutchinson that Bostonians seemed to agree that Otis had acted out of a sincere concern for liberty rather than from spite, and around Massachusetts other conservatives sensed that a dangerous new adversary was arising. John Adams was dining with prominent lawyers in Worcester when he heard one of the king’s loyalists, Timothy Ruggles, say, “Out of this election will arise
a damned faction, which will shake this province to its foundation.”

—

James Otis’ opponents weren’t the only ones who worried about sending such an explosive man to a deliberative body. As Otis took his seat in the House after the election of May 1761, a friend who would be sitting nearby approached him with a warning: “Mr. Otis, you have great abilities but are too warm, too impetuous. Your opponents, though they cannot meet you in argument, will get the advantage by interrupting you and putting you in a passion.”

Otis said, “Well, if you see me growing warm, give me a hint and I’ll command myself.”

A dispute soon arose and Otis murmured that he intended to speak. Remember, his friend said, don’t get irritated. Otis took the floor and was crushing the opposition when Timothy Ruggles interrupted him. Otis flushed and intensified his attack. From behind him, his friend pulled lightly on his coat. Otis turned with a scowl but checked himself and softened his tone.

He had barely resumed when another man, Choate of Ipswich, interrupted. Once more, Otis began to flare up. The friend pulled on his coat a little harder. This time, Otis turned around and said, “Let me alone! Do you take me for a schoolboy?” And he proceeded to devastate the conservative opposition.

House members learned that when Otis was out of control even past loyalties couldn’t restrain him. On an occasion when he and Oxenbridge Thacher took opposite sides, the younger Otis became so abusive that Thacher had to ask the elder Otis, the House speaker, for protection. In court, Otis went out of his way to attack the judges who would be hearing his cases. Finally, Hutchinson’s brother-in-law, Judge Peter Oliver, complained to John Adams that Otis had slandered the entire judiciary. Adams had his own reservations about Otis, but he pointed out that he had many fine talents.

“If
Bedlamism is a talent,” said Oliver, “he has that in perfection.”

The early 1760s were supplying a wealth of controversies to keep Otis agitated. He blocked the conservatives who wanted to punish counterfeiting with the death penalty, and he succeeded in ousting William Bollan from his job as the Massachusetts agent in England, the man paid to look after the colony’s interests. Otis admitted that he didn’t much care who held the post; he simply hated to see Hutchinson win at anything. In a light mood, he proposed a law charging with high treason any man who believed in “certain imaginary
beings called devils.” His motive wasn’t religious. At home, Otis did not hold family prayers, and, in a time when gentlemen were expected to attend church, he had never joined a congregation.

By the time the job of London agent went to a draper named Jasper Mauduit, Otis was as determined to thwart Governor Bernard as Hutchinson. He was overheard describing Bernard as a bigot and a plantation governor interested only in filling his own pockets. When those insults appeared anonymously in print, the governor knew who was responsible. Bernard had redeemed himself with Otis’ father by letting him disburse all the patronage in Barnstable County, and Speaker Otis hadn’t hesitated to pick off the two best judgeships for himself. That peace offering had also appeased James Otis long enough for him to back a grant of land that Bernard coveted. But no sooner was one hatchet buried than Otis was brandishing another. Thomas Hutchinson concluded that whenever Otis was annoyed by anyone, anywhere in the colony, he would take his revenge on Hutchinson.

The strain of his temperament told on Otis. During his second
session in the House, he angrily resigned his seat and then asked for it back the next day. But even at his most erratic, he had a sure touch for language that touched Boston’s heart, and he fought the conservatives effectively by contrasting himself with Hutchinson and his circle.

“I know it is the maxim of some,” Otis wrote in an antigovernment weekly, the
Boston Gazette
, “that the common people in this town live too well; however . . . I do not think they
live half well enough.”

Carpenters and bakers, along with the men who ran shops and taverns, had watched their incomes decline until their work was paying less than in their grandfathers’ day. Meanwhile, the colony’s benefits seemed to be flowing to the small circle of the lieutenant governor and his friends. At the beginning of 1762 Otis wrote, “My dear friends, fellow citizens and countrymen, I am forced to get my living by the labors of my hand and the sweat of my brow, as most of you are.” He pledged to go on defying those men who owed “their grandeur and honors to grinding the faces of the poor and other arts of
ill-gotten gain and power.”

Thomas Hutchinson considered suing for libel.

By now, Otis found reasons to oppose almost any action by the governor or his lieutenant. Despite England’s victory over France, Frenchmen in Newfoundland were continuing to threaten British fisheries. Governor Bernard intended to allocate a few hundred pounds to protect Britain’s interests by sending an armed sloop up the coast. The conservative Council approved the project. But Otis and his allies saw a peril in bypassing the House on a revenue measure, and he drew up a protest. If the House gave up its right to raise revenue, he wrote, Massachusetts might as well be ruled by the king of France instead of George III. If either king could levy taxes without a House vote, the two kings would be equally arbitrary.

When Otis read his protest on the House floor, a conservative delegate objected to his reference to Britain’s new monarch and shouted, “Treason! Treason!”

Otis defended his language, and it passed the House easily. But the governor also found the allusion to the king improper and sent the message back to the House to have the sentences expunged. Otis inserted a few diplomatic words expressing all due reverence for the king’s sacred person but kept to his original point.

When the protest was back on the House floor, the man who had shouted “Treason!” listened to Otis’ compromises and cried, “Erase them! Erase them!” A majority of the House agreed, and the provocative language was dropped. James Otis learned that his countrymen were not ready to attack the power of the British crown.

Samuel Adams, by John Singleton Copley

MUSEUM OF FINE ARTS, BOSTON

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, the new young king had been struggling since his coronation to gain for himself the kind of power James Otis was suggesting he already had. His subjects saw Prime Minister William Pitt as their true leader, since it was under his command that England had won the Seven Years’ War, with its American phase known as the French and Indian War. When the prince assumed the throne as King George III in October 1760, he might have ensured a tranquil reign by keeping Pitt as his prime minister and contenting himself with being a royal figurehead.

At first, George seemed headed for that serenity. A Virginian wrote home from London that the only crisis facing the tall, fair young man with full lips and protruding gray eyes was the danger of being kissed to death by the ladies of his court. But in the House of Commons, one member was less sure. “The young man,” said Charles Townshend,
“is very obstinate.”

Young George had come to the throne full of resentments. Power had been draining away from the crown to Parliament for seventy years, even before George’s ancestors had come from Germany to found the Hanoverian dynasty and accelerate the monarchy’s decline. The London court had regarded George I, his great-grandfather, and George II, his grandfather, as Teutonic oddities. When George I became Britain’s king, he spoke no English, and his ministers had to speak to him in simple Latin. George I had questioned whether he was the father of his heir, Prince George Augustus, and as the young man grew up the two quarreled so violently that the king had his son arrested. When the king died abruptly of apoplexy, however, the prince became George II, but he spent much of his reign at Hanover and left ruling England to his wife, Caroline, and Sir Robert Walpole.

George II and Caroline had shared a distaste for their own son, Frederick. Then, soon after Caroline’s death in 1737, Frederick’s wife gave birth to a son so frail that he was baptized at once and was expected to die. Instead, the third George survived, grew into his large frame and showed from infancy that he had inherited his grandfather’s bulging eyes. It was Frederick who died young, and George II began to take a bullying interest in his thirteen-year-old grandson. He chided him for his solitary nature and for days spent playing cards with his attendants. When the king tested him with a history question and the tense young man couldn’t answer, George II slapped him. “You are only fit for
reading the Bible to your mother,” the king said.