"The Honorable James Otis having, by advice of his physician,
retired into the country for the recovery of his health; Voted,
That thanks of the town be given to the Honorable James Otis for
the great and important services, which, as a representative in
the General Assembly through a course of years, he has rendered
to this town and province, particularly for his undaunted
exertions in the common cause of the Colonies, from the beginning
of the present glorious struggle for the rights of the British
consituation. At the same time, the town cannot but express
their ardent wishes for the recovery of his health, and the
continuance of those public services, that must long be
remembered with gratitude, and distinguish his name among the
patriots of America."
During short periods of sanity, or of only partial aberration,
Otis's wit and humor, rendered more quaint and striking by the
peculiarities of his mental condition, made him the delight of a
small circle of friends. The following anecdote, admirably told
by President Adams, presents in a very graphic manner the
peculiarities of his character:
"Otis belonged to a club, who met on evenings; of which club
William Molineux was a member. Molineux had a petition before
the legislature, which did not succeed to his wishes, and he
became for several evenings sour, and wearied the company with
his complaints of services, losses, sacrifices, etc., and said,
'That a man who has behaved as I have, should be treated as I am,
is intolerable,' etc. Otis had said nothing; but the company
were disgusted and out of patience, when Otis rose from his seat,
and said, 'Come, come, Will, quit this subject, and let us enjoy
ourselves; I also have a list of grievances; will you hear it?'
The club expected some fun, and all cried out, 'Ay! ay! let us
hear your list.'
"'Well, then, Will; in the first place, I resigned the office of
the Advocate-General, which I held from the crown, that produced
me--how much do you think?' 'A great deal, no doubt,' said
Molineux. 'Shall we say two hundred sterling a year?' 'Ay, more
I believe,' said Molineux. 'Well, let it be two hundred; that
for ten years, is two thousand. In the next place, I have been
obliged to relinquish the greatest part of my business at the
bar. Will you set that at two hundred more?' 'O, I believe it
much more than that.' 'Well, let it be two hundred; this, for
ten years, is two thousand. You allow, then, I have lost four
thousand pounds sterling?' 'Ay, and much more, too,' said
Molineux.
"'In the next place, I have lost a hundred friends; among whom
were the men of the first rank, fortune, and power, in the
province. At what price will you estimate them?' 'D--n them,'
said Molineux; 'at nothing: you are better without them than
with them.' A loud laugh. 'Be it so,' said Otis.
"'In the next place, I have made a thousand enemies; among whom
are the government of the province and the nation. What do you
think of this item?' 'That is as it may happen,' said Molineux.
"'In the next place, you know, I love pleasure; but I have
renounced all amusement for ten years. What is that worth to a
man of pleasure?' 'No great matter,' said Molineux; 'you have
made politics your amusement.' A hearty laugh.
"'In the next place, I have ruined as fine health, and as good a
constitution of body, as nature ever gave to man.' 'This is
melancholy indeed,' said Molineux; 'there is nothing to be said
on that point.'
"'Once more,' said Otis, holding his head down before Molineux;
'look upon this head!' (Where was a scar in which a man might
bury his finger.) 'What do you think of this? And, what is
worse, my friends think I have a monstrous crack in my skull.'
"This made all the company very grave, and look very solemn. But
Otis, setting up a laugh, and with a gay countenance, said to
Molineux, 'Now, Willy, my advice to you is, to say no more about
your grievances; for you and I had better put up our accounts of
profit and loss in our pockets, and say no more about them, lest
the world should laugh at us.'"
This whimsical dialogue put all the company, including Molineux,
in a good humor, and they passed the rest of the evening very
pleasantly.
One of the few fragments in Otis' handwriting now extant, is a
memorandum made during the two years of transient sanity just
preceding his tragic death. Returning one Sunday from public
worship, he wrote: "I have this day attended divine service, and
heard a sensible discourse; and thanks be to God, I now enjoy the
greatest of all blessings, mens sana in copore sano" (a sound
mind in a sound body). But this gleam of reason was as transient
as others that had preceded, and with Bowen we willingly draw a
veil over the sad record of this most terrible misfortune of our
hero. "To be among men, and yet not of them; to preserve the
outward form and lineaments of a human being, while the spirit
within is wanting, or is transformed into a wreck of what it has
been; is surely one of the most impressive and affecting
instances of the ills to which mortality is exposed. It enforces
with melancholy earnestness the moral lesson, that the only
objects of the affections are the character and the intellect;
and when these are destroyed, we look upon the external shape and
features only as on the tomb in which the mortal remains of a
friend repose. We even long for the closing of the scene, and
think it would be far better if the now tenantless and ruined
house were levelled with the ground."
A nice sense of honor was perhaps the second most striking point
in Otis's energetic and strongly-marked character. Called by
reason of his fame as an advocate to the management of suits even
at a distance from home, and receiving the largest fees ever
given to an advocate in the province, he yet disdained to suffer
the success of any of his cases to rest on any petty arts or
undue evasions. Conscious of possessing eminent abilities and
sufficient learning he undertook to advocate no cause that he did
not truly and fully believe in. His ardent pleading and the
fairness of his dealing before the courts was the result of his
firm belief in the justice of his cause. Nothing but truth could
give him this firmness; but plain truth and clear evidence can be
beat down by no ability in handling the quirks and substitutes of
the law.
It was from this source as from no other that Otis drew his power
as a pleader. He was as John Adams records concerning his speech
on the "Writs of Assistance," "a flame of fire," but he was a
flame of fire set burning to consume the dross of injustice and
to purify and rescue the gold of liberty and fair-dealing.
Thomas Hutchinson, before whom Otis often pleaded and whose
testimony is of the greatest weight when we remember that Otis
was his political opponent, has said that he never knew fairer or
more noble conduct in a pleader than in Otis; that he always
disdained to take advantage of any clerical error or similar
inadvertence, but passed over minor points, and defended his
causes solely on their broad and substantial foundations. In
this regard Otis seems to satisfy Emerson's definition of a great
man, when in his essay on the "Uses of Great Men" the latter
declares: "I count him a great man who inhabits a higher sphere
of thought, into which other men rise with labor and difficulty;
he has but to open his eyes to see things in a true light, and in
large relations; whilst they must make painful corrections, and
keep a vigilant eye on many sources of error."
Indeed, it can be said of Otis as Coleridge said of O'Connell,
"See how triumphant in debate and action he is. And why?
Because he asserts a broad principle, acts up to it, rests his
body upon it, and has faith in it." The world is upheld, as
Emerson says, by the veracity of good men; and so the great power
of Otis as an advocate before the civil bar in the minor cases of
his career, and as an advocate of the people in the larger court
in the great case of his life, for the liberty of opposing
arbitrary power by speaking and writing the truth, arose almost
entirely from his absolute integrity and fairmindedness.
Clarendon's portrait of Falkland applies equally as well to Otis,
--"He was so severe an adorer of the truth that he could as
easily have given himself leave to steal as to dissemble." In
short, Otis acted aright, and feared not the consequences, and
thus became a power in the community because of his personal
character.
The great popularity that he immediately acquired he used for no
sinister or selfish ends. He stooped to none of the arts of the
demagogue; he was never carried away by a blind spirit of
faction. He opposed the arbitrary design of the English ministry
with great spirit and firmness, though with some indiscretion;
but he was no advocate of turbulent dissensions or causeless
revolt. He allowed himself to be ruled by the greater moderation
and prudence of his associates, while he inspired them with his
own resistless energy and determination.
No imputation can justly be thrown on the sincerity of his
patriotism, although the attempt was made by some of his
contemporaries.
When in 1764, Otis, as chairman of a committee of the Assembly
appointed to consider the status of the Sugar Act, favored the
commission of Hutchinson as a special agent of the Colony to go
to England and present the claims of the colonists, he was
accused of inconsistency in opinion and action, and of
dereliction of duty as the acknowledged leader of the patriotic
party. Combined with the extraordinary appointment of
Hutchinson, which however never took effect owing to the
opposition of Governor Bernard, Otis was also charged with a too
absolute recognition of the supremacy of Parliament in his
pamphlet on the Rights of the Colonies. As his father had
recently received a judicial appointment, of no great importance,
however, some persons went so far as to suspect Otis's fidelity
to the cause, among whom was John Adams, as we see from his diary
quoted elsewhere in this paper. People talked of a compromise in
which he was supposed to be engaged for gradually withdrawing all
resistance to the proceedings of the ministry.
Such charges, however, were but the indications of the
unsteadiness and injustice of fickle popular favor. The
sacrifices which Otis made for the cause, as told of by himself
in the narrative given in this paper, were far too heavy for his
patriotism to be doubted for an instant, and any remaining doubt
must certainly be removed by a glance at the official
correspondence of Governor Bernard in which he is from first to
last regarded as the chief opponent of the prerogative and is
subjected to much calumny on that account.
The selection of Lieutenant-Governor Hutchinson as the special
agent of the Colony, though appearing at first sight somewhat
strange, is easily explained and appears as the best possible
choice. He was a native of the province, and as such thoroughly
acquainted with its interests and desirous of promoting them. A
few years before he had given sound advice to both Houses in
relation to the very matter of the Sugar Act, counselling them
not to apply for a reduction of the duty, lest they should appear
as indirectly consenting to pay it under any circumstances;
advice which had prevailed against the preconceived opinion of a
majority of both branches of the legislature. Moreover,
Hutchinson's attachment to the interests of the crown, and his
intimate relations with the ministry, would enable him to
prosecute the suit of the province to great advantage, whereas a
known leader of the popular party in Massachusetts would not be
received with much favor at the Board of Trade, whatever his
errand.
As to Otis's rather unstinted recognition of the prerogatives of
the crown and the right of Parliament to tax the Colonies, we
remark that he had undoubtedly the same ends in view as the other
popular leaders, but he differed from them in the choice of the
means, the selection of arguments, and the proper mode of
conducting the controversy. All certainly desired to be exempt
from taxation and to secure freedom of trade; the question was
how best attain these ends and reconcile their pretensions with
the acknowledged principles of English law? Otis opposed both
the Sugar Act and the Stamp Act on the same broad principle on
which Hampden in England resisted the payment of ship-money,
namely, that neither measure was sanctioned by the
representatives of the people on whom these contributions for the
support of the government were to be levied. He was too good a
lawyer to question openly the abstract supremacy of Parliament,
or to deny the technical "right" of this body to tax America, or
to do anything else. But he affirmed that he could not
justifiably exercise this right unless representatives elected by
America were admitted to sit in the House of Commons. "When
Parliament," said he, "shall think fit to allow the colonists a
representation in the House of Commons, the equity of their
taxing the colonists will be as clear as their power is at
present of doing it, if they please." These opinions did not
coincide with the sentiments of the greater part of the people at
this period, and they were displeased with the explicit and
comprehensive terms in which Otis acknowledged the authority of
Parliament; they did not care to be reminded of their subjection
in such positive language. Otis's incautious use of words may
have led him to exaggerate the sovereignty of England over her
Colonies, but the course which he pursued was undoubtedly the
most judicious one for the interests of America.
That this criticism and disaffection concerning Otis was of short
duration, and justly so, is shown by the fact that at the end of
the legislative session he was appointed chairman of the
committee charged with securing the co-operation of the other
Colonies in a united effort of opposition to the scheme for
taxing America. That he was sufficiently alive to the true
interests of the Colonies and watchful of any imposition upon
their rights as subjects under the English Constitution, we may
cite one or two brief extracts from the letter of instructions to
the provincial agent in England, written by him and adopted by
the representatives. "The silence of the province," he says in
regard to the Sugar Act, "should have been imputed to any cause,
even to despair, rather than be construed into tacit cession of
their rights, or an acknowledgment of a right in the Parliament
of Great Britain to impose duties and taxes upon a people, who
are not represented in the House of Commons." "Ireland is a
conquered country, which is not the case with the northern
Colonies, except Canada; yet no duties have been levied by the
British Parliament on Ireland. No internal or external taxes
have been assessed on them, but by their own Parliament."
"Granting that the time may come, which we hope is far off, when
the British Parliament shall think fit to oblige the North
Americans, not only to maintain civil government among
themselves, for this they have already done, but to support an
army to protect them, can it be possible that the duties to be
imposed and the taxes to be levied shall be assessed without the
voice or consent of one American in Parliament? If we are not
represented, we are slaves."
The charge that Otis turned from his support of the government
policy because his father failed to receive the desired
appointment as Chief Justice is as unfounded as it is improbable.
The office of Chief Justice was worth not over a hundred and
twenty pounds sterling a year, and as Colonel Otis's practice at
the bar was worth much more than this, and his seat in the
legislature gave him all the power and reputation he needed, the
loss of the Chief Justiceship could not have been a very great
concern to him. On the other hand one of the first measures of
Otis in coming into public life was to resign his office as
Advocate-General which was worth twice as much as the seat on the
bench. Of course a person of his fiery disposition felt keenly
the insult involved in the rejection of his father, and doubtless
the event imbittered his language towards Hutchinson; but it
would hardly be likely to shape his whole political career when
public questions of such great moment were at stake.
There was no trace of meanness or selfishness in his disposition.
To be sure, Otis's admitted superiority over his legal associates
and the natural impetuosity of his nature sometimes made him
excessively dogmatic, and his manner though courteous even to a
fineness towards those whom he liked was imperious and even
unguarded toward his political enemies. At one time, having
cited Dormat (the noted French jurist, 1625-1696, author of "The
Civil Laws in their Natural Order," 1689) in the course of an
argument, Governor Bernard inquired "who Dormat was." Otis
answered that "he was a very distinguished civilian, and not the
less an authority for being unknown to your excellency." Yet
notice the high-minded courtesy exhibited in the following
incident: When Charles Lee was in command of the left wing of
the army with his headquarters at Winter Hill, in what is now
Somerville, he refused to have an interview and conference with
his old friend Burgoyne, then lately arrived in Boston, looking
toward the restoration of an amicable understanding between the
colonies and the mother country. Four months later, a letter
came from the Old World containing a warning that Lee was not a
man of trustworthy character. Otis was at that time the
executive head of the provisional government which had been
formed in Massachusetts, during one of the last of his lucid
intervals. On behalf of the government he sent a letter to Lee,
quite touching for its fairminded simplicity. The council had
come into possesssion of a letter from Ireland making very
unfavorable mention of Lee. It produced no impression upon the
council. "On the contrary," says Otis, "we are at a loss to
know which is the highest evidence of your virtues--the
greatness and number of your friends, or the malice and envy of
your foes." This was a most delicate and effective way of
offering good advice.
When he had suffered so cruelly at the hands of Commissioner
Robinson and his companions at the British Coffee House, and had
been awarded damages by the court, Otis's high spirit revolted at
the idea of receiving pecuniary compensation for a personal
insult; and Robinson's release drawn up by Otis himself is to be
found in the files of the Supreme Judicial Court of
Massachusetts, along with Robinson's written acknowledgment and
apology.
Next to his impetuous devotion to the true relations of things,
the source of Otis's power lay in his adequate preparation for
the life of an advocate. Bred to the law at a time long before
the pathway had been smoothed by the multiplication of elementary
works and other modern improvements, he yet fully mastered that
abstruse science, which perhaps does more to quicken and
invigorate the understanding than many of the other kinds of
learning put together. As a sufficient foundation for his later
legal studies he had pursued at Harvard, the foremost college in
the colonies, not only the regular undergraduate classical
course, but also the three years of work required for the
Master's degree. Moreover, in conformity with his views on the
necessity of a generous and comprehensive culture of the mind as
a means of success at the bar, or in any professional career,
Otis did not plunge at once from his collegiate courses into the
routine of the legal office; but allowed himself two years of
self-directed general study with a view toward further
disciplining his mind and widening his information. The subjects
thus pursued and the general culture which he acquired served to
open and to liberalize his mind in nearly the same proportion as
the assiduous study of the law was next to invigorate and quicken
it. In conversation with his brother he remarked, "that
Blackstone's Commentaries would have saved him seven years' labor
pouring over and delving in black letter." He appears to have
formed a very correct judgment respecting the nature of
professional education and the best means of mastering its
abstruse details. He constantly inculcated upon the young men
who came to study in his office the maxim, "that a lawyer ought
never to be without a volume of natural or public law, or moral
philosophy, on his table or in his pocket."
After two years of practice in Plymouth, he removed to Boston
(1750), where he found the larger field which was demanded by his
superior training and abilities; and he very soon rose to the
front rank of his profession.
The regard which he entertained for his master in the law is well
shown by his conduct as the opposing advocate during the hearing
on the Writs of Assistance, when Otis having resigned his post of
Advocate-General of the Province in order to champion the
people's cause, the vacancy was filled by the appointment of
Gridley. Otis held the character and abilities of his former
teacher in very high respect, and allowed this differential
feeling to appear throughout the trial. "It was," says John
Adams, who was present on this occasion, and from whom nearly all
the details of the course of this affair are derived, "it was a
moral spectacle more affecting to me than any I have ever seen
upon the stage, to observe a pupil treating his master with all
the deference, respect, esteem, and affection of a son to a
father, and that without the least affectation; while he baffled
and confounded all his authorities, confuted all his arguments,
and reduced him to silence." Nor was a suitable return wanting
on the part of Mr. Gridley, who "seemed to me to exult inwardly
at the glory and triumph of his pupil."
Though he made no pretensions to scholarship, some of his
writings showed a cultivated taste and a love of literary
pursuits, which were gratified so far as his numerous engagements
in public service would permit. With a literary taste formed and
matured by the study of Latin and Greek prosidy as constituted in
the best models of antiquity, it is not surprising that his
opinions on matters of criticism and scholarship were those of
the Odd school, and that he decried all the forms of innovation
in letters which had begun to show themselves in his day, and
which he regarded as affectations. His constant advice to young
people was if you want to read poetry, read Shakespeare, Milton,
Dryden, and Pope; throw all the rest in the fire. And with the
addition of but one or two names which have appeared since his
time, such counsel is judicious advice even to-day.
His abilities were, perhaps, somewhat overrated in the admiring
judgment of his contemporaries. His style as a writer was
copious and energetic; but it was sometimes careless, coarse and
even incorrect. His eloquence was better adapted to popular
assemblies than to the graver occasions of legislative debate; in
the halls of justice, it produced a greater effect on the jury
than on the judge. "The few fragments of his speeches that were
reported and are now extant give no idea of the enthusiasm that
was created by their delivery. The elevation of his mind, and
the known integrity of his purposes, enabled him to speak with
decision and dignity, and commanded the respect as well as the
admiration of his audience." While his arguments were sometimes
comprehensive and varied, they generally related only to a few
points which they placed in a very clear and convincing light.
His object was immediate effect. He had studied the art of clear
expression and forcible argument in order to act with facility
and force upon the minds of others to such an extent as to
convince them, and then to convert their conviction into action.
He employed the facility and the power thus gained not for any
personal agrandizement, but to advocate political reform for the
good of the whole people.
In the latter part of his speech on the Writs of Assistance, he
discussed the incompatibility of the acts of trade as lately
adopted by the English Ministry with the charter of the colony.
In so doing "he reproached the nation, Parliament, and King,"
says John Adams, "with injustice, illiberality, ingratitude, and
oppression, in their conduct towards the people of this country,
in a style of oratory that I never heard equalled in this or any
other country." As to the effect of this oration in increasing
the courage of the colonists, inciting them to scrutinize more
closely and resist more strenuously, the claims of the British
Ministry and Parliament, we have Adams's significant statement,--
"I do say in the most solemn manner that Mr. Otis's oration
against Writs of Assistance breathed into this nation the breath
of life."
The longest and most elaborate production from his pen is the
pamphlet on the "Rights of the Colonies." It affords a fair
specimen of his impetuous and inaccurate rhetoric, his rapid and
eager manner of accumulating facts, arguments, and daring
assertions, and the "glowing earnestness and depth of patriotic
feeling with which all his compositions are animated." It is not
surprising that a book written in this style caused the author to
be suspected of wildness and even of madness. But there was, as
Bowen remarks, a method and a good deal of logical power in his
madness.
The pamphlet was reprinted, circulated, and read in Great Britain
and even attracted the attention of the House of Lords. In
February, 1766, during a debate in that body on the disturbances
in America, Lord Littleton made some allusion to the peculiar
opinions of Mr. Otis, and spoke slightingly of his book. Lord
Mansfield replied, "With respect to what has been said, or
written, upon this subject, I differ from the noble Lord, who
spoke of Mr. Otis and his book with contempt, though he
maintained the same doctrine in some points, although, in others,
he carried it further than Otis himself, who allows everywhere
the supremacy of the crown over the colonies. No man on such a
subject is contemptible. Otis is a man of consequence among the
people there. They have chosen him for one of their deputies at
the Congress, and general meeting from the respective
governments. It was said the man is mad. What then? One madman
often makes many. Massaniello was mad, no body doubts; yet for
all that, he overturned the government of Naples. Madness is
catching in all popular assemblies, and upon all popular matters.
The book is full of wildness. I never read it till a few days
ago, for I seldom look into such things."
In some of his arguments he lays down general principles with a
quaint extravagance which marks the peculiar humor of the man.
"No government has the right to make hobby-horses, asses, and
slaves of the subject; nature having made sufficient of the two
former, for all the lawful purposes of man, from the harmless
peasant in the field to the most refined politician in the
cabinet; but none of the last, which infallibly proves that they
are unnecessary." "The British constitution of government as now
established in his Majesty's person and family, is the wisest and
best in the world. The King of Great Britain is the best as well
as the most glorious monarch upon the globe, and his subjects the
happiest in the universe. The French King is a despotic,
arbitrary prince, and, consequently, his subjects are very
miserable." The last specimen which we shall quote comes from
his defence of the objectionable passage in the remonstrance
drawn up by Otis on behalf of the Assembly of 1762 against
Governor Bernard's conduct in increasing the expenses of the
colony without previously obtaining the consent of the
Legislature. This passage was as follows: "No necessity can be
sufficient to justify a House of Representatives in giving up
such a privilege; for it would be of little consequence to the
people, whether they were subject to George or Louis, the King of
Great Britain or the French King, if both were arbitrary, as both
would be, if both could levy taxes without Parliament."
Afterwards in commenting on this passage he made the following
defense of its apparent unpatriotic sentiment. "It may be
objected, that there are some differences between arbitrary
princes, in this respect, at least, that some are more rigorous
than others. It is granted; but, then, let it be remembered,
that the life of man is a vapor that soon vanisheth away, and we
know not who may come after him, a wise man or a fool; though the
chances, before and since Solomon, have ever been in favor of the
latter."--"That I should die very soon after my head should be
struck off, whether by a sabre or a broadsword, whether chopped
off to gratify a tyrant by the Christian name of Tom, Dick, or
Harry, is evident. That the name of the tyrant would be of no
more avail to save my life, than the name of the executioner,
needs no proof. It is, therefore, manifestly of no importance
what a prince's Christian name is, if he be arbitrary, any more,
indeed, than if he were not arbitrary. So the whole amount of
this dangerous proposition may, at least in one view, be reduced
to this, viz.: It is of little importance what a king's
Christian name is. It is, indeed, of importance, that a king, a
governor, and all good Christians, should have a Christian name;
but whether Edward, Francis, or William, is of none, that I can
discern."
A passage ascribed to Otis during a session of the legislature at
Cambridge gives some idea of the character of his invective. It
had been said in defence of some measure that it had been taken
by the advice of Council, when Otis exclaimed, "Ay, by the advice
of Council, forsooth! And so it goes, and so we are to be
ruined! The Council are governed by his Excellency, his
Excellency by Lord Hillsborough, Lord Hillsborough by his
Majesty, his Majesty by Lord Bute, and Lord Bute by the Lord
knows who. This recalls to mind what used to be said when I was
a student in this place. It was observed at that time, that the
President directed the scholars how they should act, madame
directed the President, Titus, their black servant, governed
madame, and the devil prompted Titus."
The most comprehensive and just appreciation of the character and
work of Otis is given us by Francis Bowen in Jared Spark's
Library of American Biography. In part he says: "The services
which Mr. Otis rendered to this country were so conspicuous and
important, that it is difficult to form an estimate of his
character with the impartiality that history requires.
Gratitude might justly efface the memory of his faults from the
minds of those who have profited so largely by his patriotism and
his virtues. But it is not necessary thus to seek excuses for
his failings, or reasons for covering up the errors that he
committed. The defects of his temperament and conduct may be
freely mentioned, for they are not such as materially lessen our
respect for him as a man.
* * * * * * * * * * *
"As the vindicator of American rights, during the period of
colonial subordination, as the acknowledged leader, in
Massachusetts, of the constitutional opposition to ministerial
influence and parliamentary usurpation, the services of Mr. Otis
cannot be too highly appreciated.
* * * * * * * * * * *
"He was not permitted to witness the grand result of his labors.
He did not live to enjoy the final triumph; he can hardly be said
to have survived till the opening of the struggle. But the
historian who searches into the causes of this great event, and
seeks to determine the comparative merits of the men who achieved
it, will dwell long upon the services, and pay a just tribute of
admiration and respect to the memory of James Otis."
THE USE AND ABUSE OF ARBITRARY POWER, Including Tracts from
Burke, 0tis and Wilkes. By Charles K. Edmunds, Ph.D.
It is the honor of England that she had deposited in the virgin
soil of her colonies the germ of freedom. Nearly all at their
foundation, or shortly after, received charters which conferred
the franchises of the mother country on the colonists. These
charters were neither a vain show nor a dead letter, but really
did establish and allow powerful institutions which impelled the
colonists to defend their liberty, and to control the power by
participating in it as constituted in the grant of supplies, the
election of public councils, trial by jury, and the right of
assembling to discuss the general affairs. To us of to-day these
appear as common-sense or logically necessary rights; but we must
remember that in those early days of colonization they were
distinct privileges accorded in power to the colonists. And it
is in these very privileges that we behold the germinating
principle which was ultimately to bring to life the new republic
then as yet unborn. For as Thomas Jefferson afterward wrote,
"where every man is a sharer in the direction of his
town-republic, and feels that he is a participator in the
government of affairs, not merely at an election one day in the
year, but every day; when there shall not be a man in the State
who will not be a member of some one of its councils, great or
small, he will let the heart be torn out of his body sooner than
allow his power to be wrested from him by a Caesar or a
Bonaparte. How powerfully did we feel the energy of this
organization in the case of the embargo!"
Notwithstanding the widely different origin of the various
colonists, the circumstances in which they were placed were so
similar, that the same general form of personal character must
inevitably have developed itself, and produced a growing
consciousness of power and impatience of foreign imposition. The
proximate independence of America need not have been a certainty,
however, had the eyes of English statesmen not been blinded to
the truth of the principles urged by such men as Otis in America
and Burke in England. The causes which were to produce a final
rupture were, to be sure, already at work (their full operation
being delayed by the lack of union among the different
provinces), but there was at the same time a warm hereditary
attachment to the parent country, under whose wings the provinces
had grown up, by whose arms they had been shielded, and by whose
commerce, in spite of jealous restrictions, they had been
enriched.
Indeed life in the Colonies was so closely related to that in the
mother country that in a very marked degree, the history of the
Colonies is only the more practical and laborious development of
the spirit of liberty flourishing amid the conditions of life in
the new country under the standard of the laws and traditions of
the old country. As the eminent philosophical historian, M.
Guizat, has said, "It might be considered the history of England
herself." The resemblance is the more striking when we remember
that the majority of the American Colonies and the more important
of them were founded or increased the most rapidly at the very
epoch when England was preparing to sustain, and in part already
sustaining, those fierce conflicts against the pretensions of
absolute power which were to obtain for her the honor of giving
to the world the first example of a great nation free and well
governed.
How similarly the state of affairs appeared, in the eyes of those
who were not blinded by self-interest, on both sides of the
Atlantic, is shown by the following extracts from Burke and Otis.
In 1770 Burke thus described the social and political conditions
both at home and in the Colonies: "That the government is at
once dreaded and contemned; that the laws are despoiled of all
their respected and salutary terrors; that their inaction is a
subject of ridicule and their enforcement of abhorrence; that
rank, and office, and title, and all the solemn plausibilities of
the world, have lost their reverence and effect; that our foreign
politics are as much deranged as our domestic economy; that our
dependencies are slackened in their affection and loosened from
their obedience; that we know neither how to yield nor how to
enforce; that hardly anything above or below, abroad or at home,
is sound and entire; but that disconnection and confusion, in
office, in parties, in families, in parliament, in the nation,
prevail beyond the disorders of any former time, these are facts
universally admitted and lamented."
When in 1768 troops were sent to Boston to prevent a repetition
of the disturbances which had resulted from the arbitrary and
insulting manner in which the commissioners of customs exercised
their office, Otis was chosen moderator of the town meeting held
in protest, and is reported to have declared "That in case Great
Britain was not disposed to redress their grievances after proper
applications, the inhabitants had nothing more to do, but to gird
the sword to the thigh, and shoulder the musket." Another
account presents a somewhat more temperate tone, representing
Otis as "strongly recommending peace and good order, and the
grievances the people labored under might in time be removed; if
not, and we were called on to defend our liberties and
privileges, he hoped and believed we should, one and all, resist
even unto blood; but at the same time, he prayed Almighty God it
might never so happen."
The change from favorable conditions both in England and in the
Colonies to the state of unrest depicted by these passages from
Burke and Otis, had been brought about by the attempt to use
strong measures, enforced with no just regard for the welfare of
the whole people. The English Ministry failed to realize that it
is of the utmost importance not to make mistakes in the use of
strong measures; that firmness is a virtue only when it
accompanies the most perfect wisdom. Their course of political
conduct, combined with the establishment of a system of
favoritism both at home and abroad like that adopted by Henry the
Third of France, produced results of the same kind as the latter.
Members of parliament for the most part were practically
convinced that they did not depend on the affection or opinion of
the people for their political being, and gave themselves over,
with scarcely the appearance of reserve, to the influence of the
court. There was thus developed both a ministry and parliament
unconnected with the people, and we have the deplorable picture
of the executive and legislative parts of a government attempting
to exist apart from their true foundation--the opinion of the
people. How signally such attempts have always failed is a
matter of historical record. And the steadfast belief that they
always will so fail constitutes the great force of public opinion
to-day.
Had the English Ministry and the Colonial Governors, in
particular Governor Bernard of Massachusetts, recognized certain
cardinal principles of individual and national liberty, which
were so strongly advocated by Burke and Otis, the course of
events in their dealing with the colonists would in all
probability have been greatly different from that actually
developed. Burke declared that as long as reputation, the most
precious possession of every individual, and as long as opinion,
the great support of the state, depend entirely upon the voice of
the people, the latter can never be considered as a thing of
little consequence either to individuals or to governments. He
pointed out that nations are governed by the same methods, and on
the same principles, by which an individual without authority is
often able to govern those who are his equals or even his
superiors, namely, by a knowledge of their temper, and by a
judicious management of it; that is, when public affairs are
steadily and quietly conducted, not when government descends to a
continued scuffle between the magistrate and the multitude, in
which sometimes the one and sometimes the other is uppermost;
each alternately yielding and prevailing in a series of
contemptible victories and scandalous submissions. "The temper
of the people amongst whom he presides ought, therefore, to be
the first study of a statesman. And the knowledge of this temper
it is by no means impossible for him to attain, if he has not an
interest in being ignorant of what it is his duty to learn."
Of course it will not do to think that the people are never in
the wrong. They have frequently been so, both in other countries
and in England; but in all disputes between them and their
rulers, the presumption is at least upon a par in favor of the
people. History justifies us in going even further, for when
popular discontents have been very prevalent something has
generally been found amiss in the constitution, or in the conduct
of the government. As Burke declares, "the people have no
interest in disorder. When they do wrong, it is their error, and
not their crime. But with the governing part of the state it is
far otherwise. They certainly may act ill by design, as well as
by mistake. * * * If this presumption in favor of the subjects
against the trustees of power be not the more probable, I am sure
it is the more comfortable speculation; because it is more easy
to change an administration than to reform a people."
Very much the same ideas are presented by Otis in his article on
the "Rights of the Colonists," and the passage bearing on this
present topic will be given for comparison with Burke's
treatment. The pamphlet is divided into four parts, treating
respectively of the origin of government, of colonies in general,
of the natural rights of colonists, and of the political and
civil rights of the British colonists. The writer maintains,
that government is founded not as some had supposed on compact,
but as Paley afterwards affirmed, on the will of God. By the
divine will, the supreme power is placed "originally and
ultimately in the people; and they never did, in fact, freely,
nor can they rightfully, make an absolute, unlimited renunciation
of this divine right. It is ever in the nature of a thing given
in trust; and on a condition the performance of which no mortal
can dispense with, namely, that the person or persons, on whom
the sovereignty is conferred by the people, shall incessantly
consult their good. Tyranny of all kinds is to be abhorred,
whether it be in the hands of one, or of the few, or of the many.
The colonies were not at all unwilling to pay revenue to the home
government, if the manner of payment was just and right. They
were so far from refusing to grant money that the Assembly of
Pennsylvania resolved to the following effect: "That they always
had, so they always should think it their duty to grant aid to
the crown, according to their abilities, whenever required of
them in the usual constitutional manner." This resolution was
presented by Franklin, who was a member of the Pennsylvania
Assembly, to the Prime Minister of England, Mr. Grenville, before
the latter introduced the Stamp Act into Parliament. Other
colonies made similar resolutions, and had Grenville instead of
the Stamp Act, applied to the King for proper requisitional
letters to be circulated among the colonies by the Secretary of
State, it is highly probable that he would have obtained more
money from the colonies by their voluntary grants than he himself
expected from the stamps. Such at any rate is the claim of
Franklin, who was surely in a position to feel the pulse of the
colonies better than any other one man. "But he (Grenville)
chose compulsion rather than persuasion, and would not receive
from their good-will what he thought he could obtain without it.
Thus the golden bridge which the Americans were charged with
unwisely and unbecomingly refusing to hold out to the minister
and parliament, was actually held out to them, but they refused
to walk over it."
The action of the English Ministry in the matter of the tea tax
in particular, and of the whole question of American taxation in
general, is thus spoken of by Burke in his famous address in the
House of Commons:
"There is nothing simple, nothing manly, nothing ingenious, open,
decisive, or steady, in the proceeding, with regard either to the
continuance or the repeal of the taxes. The whole has an air of
littleness and fraud. * * * There is no fair dealing in any part
of the transaction."
* * * * * * * * * * *
"No man ever doubted that the commodity of tea could bear an
imposition of three-pence. But no commodity will bear
three-pence, or will bear a penny, when the general feelings of
men are irritated, and two millions of people are resolved not to
pay. The feelings of the colonists were formerly the feelings of
Great Britain. Theirs were formerly the feelings of Mr. Hampden
when called upon for the payment of twenty shillings. Would
twenty shillings have ruined Mr. Hampden's fortune? No, but the
payment of half twenty shillings, on the principle it was
demanded, would have made him a slave. * * * It is then upon the
principle of this measure, and nothing else, that we are at
issue."
* * * * * * * * * * *
"I select the obnoxious colony of Massachusetts Bay, which at
this time (but without hearing her) is so heavily a culprit
before parliament--I will select their proceedings even under
circumstances of no small irritation. For, a little imprudently,
I must say, Governor Bernard mixed in the administration of the
lenitive of the repeal no small acrimony arising from matters of
a separate nature. Yet see, Sir, the effect of that lenitive,
though mixed with these bitter ingredients; and how this rugged
people can express themselves on a measure of concession.
"'If it is not in our power,' (say they in their address to
Governor Bernard), "in so full a manner as will be expected, to
show our respectful gratitude to the mother country, or to make a
dutiful and affectionate return to the indulgence of the king and
parliament, it shall be no fault of ours; for this we intend, and
hope we shall be able fully to effect.'
"Would to God that this tender had been cultivated, managed, and
set in action; other effects than those which we have since felt
would have resulted from it. On the requisition for compensation
to those who had suffered from the violence of the populace, in
the same address they say, 'The recommendation enjoined by Mr.
Secretary Conway's letter, and in consequence thereof made to us,
we will embrace the first convenient opportunity to consider and
act upon.' They did consider; they did act upon, it. They
obeyed the requisition. I know the mode has been chicaned upon,
but it was substantially obeyed, and much better obeyed than I
fear the parliamentary requisition of this session will be,
though enforced by all your rigour, and backed with all your
power. In a word, the damages of popular fury were compensated
by legislative gravity. Almost every other part of America in
various ways demonstrated their gratitude. I am bold to say,
that so sudden a calm recovered after so violent a storm is
without parallel in history. To say that no other disturbance
should happen from any other cause, is folly. But as far as
appearances went, by the judicious sacrifice of one law, you
procured an acquiescence in all that remained. After this
experience, nobody shall persuade me, when a whole people are
concerned, that acts of lenity are not means of conciliation."
"0PP0SITI0N T0 ARBITRARY POWER," By John Wilkes, 1763.
While Otis and other patriots were opposing the arbitrary
measures of the English Ministry in their dealings with the
Colonies, certain men in England were equally as ardent in their
opposition to such a course whether pursued at home or abroad.
Most prominent among these were Edmund Burke and John Wilkes,
both members of Parliament. In this connection the following
extracts frown Wilkes' article on "Opposition to Arbitrary Power"
will be of interest. This article appeared in the famous No. 45
of "The North Briton," edited by Wilkes, who was very clever but
somewhat profligate.
* * * "In vain will such a minister (referring to Lord Bute), or
the foul dregs of his power, the tools of corruption and
despotism, preach up in the speech that spirit of concord, and
that obedience to the laws, which is essential to good order.
They have sent the spirit of discord through the land, and I will
prophesy, that it will never be extinguished, but by the
extinction of their power. Is the spirit of concord to go hand
in hand with the Peace and Excise, through this nation? Is it to
be expected between an insolent Excisemen, and a peer, gentleman,
freeholder, or farmer, whose private houses are now made liable
to be entered and searched at pleasure? The spirit of concord
hath not gone forth among men, but the spirit of liberty has, and
a noble opposition has been given to the wicked instruments of
oppression. A nation as sensible as the English, will see that a
spirit of concord when they are oppressed, means a tame
submission to injury, and that a spirit of liberty ought then to
arise, and I am sure ever will, in proportion to the weight of
the grievance they feel. Every legal attempt of a contrary
tendency to the spirit of concord will be deemed a justifiable
resistance, warranted by the spirit of the English constitution.
"A despotic minister will always endeavor to dazzle his prince
with high-flown ideas of the prerogative and honor of the
crown, which the minister will make a parade of firmly
maintaining. I wish as much as any man in the kingdom to see the
honor of the crown maintained in a manner truly becoming Royalty.
* * * * The prerogative of the crown is to exert the
constitutional powers entrusted to it in a way not of blind favor
and partiality, but of wisdom and judgment. This is the spirit
of our constitution. The people too have their prerogative, and
I hope the fine words of Dryden will be engraven on our hearts:
'Freedom is the English Subject's Prerogative.'"
JOSEPH WARREN'S OPINION OF GOVERNOR BERNARD, OTIS'S PRINCIPAL
ENEMY.
Governor Bernard's bad temper and bad taste in dealing with the
legislature may justly be ranked among the principal causes which
gradually, but effectually, alienated the affections of the
people of Massachusetts, first from the persons immediately
charged with the government of the province, and finally, from
the royal authority and whole English dominion. "With an
arrogant and self-sufficient manner, constantly identifying
himself with the authority of which he was merely the
representative, and constantly indulging in irritating personal
allusions, he entirely lost sight of the courtesy and respect due
to a co-ordinate branch of the government, and made himself
ridiculous, while he was ruining the interests of the sovereign
whom he was most anxious to serve. Even Hutchinson, as we learn
from the third volume of his History, though he was attached to
the same policy, and favored the same measures, censures the tone
of Bernard's messages as ungracious, impolitic, and offensive."
Popular animosity against Governor Bernard waxed exceedingly
strong during the controversy concerning the circular letter sent
by the Massachusetts Assembly to each House of Representatives in
the thirteen Colonies, in which the Colonies were urged to
concert a uniform plan for remonstrance against the government
policy. Bernard sent advices to England declaring that stringent
measures were imperative. Among those who were particularly
vehement in their denunciation of Bernard's character and conduct
was Joseph Warren, a young physician of twenty-seven years,
Otis's brother-in-law, for some time a writer for the papers,
who was even more drastic than Otis in his arraignment of
Bernard's tactics as governor, and who caused somewhat of a
sensation by publishing the following in the "Boston Gazette" of
February 29, 1768. (Warren was killed while serving as a
volunteer aide at the battle of Bunker Hill.)
"We have for a long time known your enmity to this Province. We
have had full proof of your cruelty to a loyal people. No age
has, perhaps, furnished a more glaring instance of obstinate
perseverance in the path of malice. * * * Could you have reaped
any advantage from injuring this people, there would have been
some excuse for the manifold abuses with which you have loaded
them. But when a diabolical thirst for mischief is the alone
motive of your conduct, you must not wonder if you are treated
with open dislike; for it is impossible, how much soever we
endeavor it, to feel any esteem for a man like you. * * *
Nothing has ever been more intolerable than your insolence upon a
late occasion when you had, by your jesuitical insinuations,
induced a worthy minister of state to form a most unfavorable
opinion of the Province in general, and some of the most
respectable inhabitants in particular. You had the effrontery to
produce a letter from his Lordship as a proof of your success in
calumniating us. * * * We never can treat good and patriotic
rulers with too great reverence. But it is certain that men
totally abandoned to wickedness can never merit our regard, be
their stations ever so high.
'If such men are by God appointed, The Devil may be the Lord's
anointed.' A TRUE PATRIOT.
Hutchinson tried to induce the grand jury to indict Warren for
libel on account of this intemperate attack. The jury, however,
returned "ignoramus," and the Governor had to bear the affront,
which was but one of a series directed against him during his
remaining days in America.
On the other hand, direct attacks were also made against Otis,
and some were marked by scurrility and coarseness of language,
which could not fail to arouse a man of his temper and fine sense
of honor. How he did regard them appears from the following
extract from a letter to his sister, Mrs. Warren:
"Tell my dear brother Warren to give himself no concern about the
scurrilous piece in Tom Fleet's paper. It has served me as much
as the song did last year. The tories are all ashamed of this,
as they were of that; the author is not yet certainly known,
though I think I am within a week of detecting him for certain.
If I should, I shall try to cure him once for all, by stringing
him up, not bodily, but in such a way as shall gibbet his memory
in terrorem. It lies between Bernard, Waterhouse, and Jonathan
Sewall. The first, they say, has not wit enough to write
anything; the second swears off; and the third must plead guilty
or not guilty as soon as I see him. Till matters are settled in
England, I dare not leave this town, as men's minds are in such a
situation, that every nerve is requisite to keep them from
running to some irregularity and imprudence; and some are yet
wishing for an opportunity to hurt the country."
OTIS'S AFFECTION FOR ENGLAND IN SPITE OF HIS OPPOSITION TO THE
ARBITRARY MEASURES OF HER MINISTRY. By Charles K. Edmunds, Ph. D.
Otis defended the rights of his countrymen by vindicating their
enjoyment of English liberty, not by asserting the demand for
American independence. He, however, sowed the seed without
knowing what kind of harvest it was to produce, for his writings
and speeches did more than those of any other man toward
preparing the minds of others for the final separation from
England. That such was his purpose he steadfastly repudiated,
and the following quotations from his pen exhibit full well his
attachment to the mother country and to the principles of her
constitution.
When in January, 1763, the joyful news was received at Boston
that the preliminaries of peace between Great Britain and France
had been signed, and that Canada was permanently annexed to the
former country, the colonists justly rejoiced, and a town meeting
was held of which Otis was chosen moderator. In the course of
his speech, Otis declared in his usual earnest way that "the true
interests of Great Britain and her plantations are mutual, and
what God in his providence united, let no man dare attempt to
pull asunder." Similar sentiments expressed by other leaders
among the various Colonies might be quoted. We give one more
from Otis's pamphlet on the "Rights of the Colonies," published
in 1765. In speaking of the colonists, he says: "Their loyalty
has been abundantly proved, especially in the late war. Their
affection and reverence for their mother country are
unquestionable. They yield the most cheerful and ready obedience
to her laws, particularly to the power of that august body, the
Parliament of Great Britain, the supreme legislative of the
kingdom and its dominions. These, I declare, are my own
sentiments of duty and loyalty." He angrily repels the charge
that the Colonies were seeking for independence, insisting that
the people had a "natural and almost mechanical affection for
Great Britain which they conceive under no other sense, and call
by no other name, than that of home. We all think ourselves
happy under Great Britain. We love, esteem, and reverence our
mother country, and adore our King. And could the choice of
independency be offered the colonies or subjection to Great
Britain on any terms above absolute slavery, I am convinced they
would accept the latter."
In 1769 he wrote: "The cause of America is, in my humble
opinion, the cause of the whole British empire; an empire which,
from my youth, I have been taught to love and revere, as founded
in the principles of natural reason and justice, and upon the
whole, best calculated for general happiness of any yet risen in
the world. In this view of the British empire, my Lord, I
sincerely pray for its prosperity, and sincerely lament all
adverse circumstances. Situated as we are, my Lord, in the
wilderness of America, a thousand leagues distant from the
fountains of honor and justice, in all our distresses, we pride
ourselves in loyalty to the King, and affection to the mother
country."