The Rights of the British Colonies Asserted and Proved, Part IV: The Otis Theorem

Here is where things get interesting.

As these past weeks have hopefully made clear, James Otis was particularly keen in the text of Asserted and Proved to demonstrate the degree to which his case on behalf of his fellow Americans and against the recently-implemented Sugar Act (1764) was entirely in keeping with British law, custom, and tradition. In calling for the invalidation of the offending statute, he argued, he was not in any way seeking to simultaneously invalidate the authority of Parliament or the Crown over Britain’s American dependencies or in any way call into question the reigning constitutional order. Indeed, to cast doubt upon these things – to toss aside a tradition of government born out of the Magna Carta (1215), the Petition of Right (1628), and the Glorious Revolution (1688) – would have meant imperiling the very liberties Otis believed that the Sugar Act had violated. Asserted and Proved may thus be accurately characterized as being largely an argument in favor of preserving the status quo. By claiming that the relevant legislation was invalid because it violated the civil rights of the Crown’s American subjects, Otis was not asking the sitting government – led by Prime Minister George Grenville – to do anything that would have been at odds with the many long-standing precedents embedded in the British Constitution. Rather, he was asking on behalf of his countrymen only that these precedents be rightly and firmly enforced. To that end, he cited a number of prominent British legal authorities, made frequent reference to the great documents of state upon which the British government grounded its authority, and repeatedly affirmed his and his countrymen’s loyalty to the reigning sovereign and his ministers of state.

In spite of how cohesive an argument this kind of approach seems to entail, however, there was yet more to what Otis believed about the nature of government – and evidently felt the need to express – than a paean to the status quo appeared ready to contain. Certainly he did hold with the supremacy of Parliament, the duty and respect owed to the Crown, and the general quality of Britain’s political and legal institutions. That was not, however, where his understanding of government – in a general sense or Britain’s in particular – began and ended. Otis, it seemed, in addition to placing his faith and his confidence in the laws and leadership of the empire of which he was a proud and steadfast citizen, believed that there were yet higher considerations to which even monarchs and ministers were rightly beholden. “The supreme power in a state,” he accordingly declared in Asserted and Proved,

Belongs alone to God […] Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void [.]

Speaking thusly – invoking such concepts as “natural law” and “eternal truth” – Otis may as well have stated outright that his personal ideology was based as much upon the principles of the European Enlightenment as it was on any hide-born English devotion to order and precedent.

In this, he was hardly alone among his intellectual contemporaries in British America. Fellow member of the Massachusetts political opposition Samuel Adams, famed Pennsylvania statesman and man of letters Benjamin Franklin, and Virginia planter, naturalist, and philosopher Thomas Jefferson were all heavily influenced in their ideology and rhetoric by the lessons of the Enlightenment as they pertained to such concepts as freedom of conscience, the purpose and origins of government, and the sovereignty of the individual. That many of these same topics had been famously explored by Englishmen – John Locke (1632-1704), for example, as well as his intellectual predecessor Thomas Hobbes (1588-1679) – was in fact a well-attested source of encouragement to the generation upon whom it fell to weather Britain’s repeated attempts in the 1760s and 1770s to consolidate the relationships that bound its empire together. By attempting to combine respect for the precedents upon which the British state was built with an assertion of the higher concerns from which noted British scholars had previously argued those same precedents derived, therefore, Otis was neither particularly unique among his countrymen nor particularly novel in his thinking. He was, however, among the first colonists to respond to the looming Anglo-American crisis with a treatise that brought to bear both of these strains of political thought. For that reason, Asserted and Proved represents something of a milestone in the history of American Revolutionary literature whose intricacies – and forcefulness of tone – most certainly warrants further investigation.

Consider, by way of introduction, the manner in which Otis described the nature of the relationship between the citizens of the British Empire – wherever they may reside – and the body to which they entrusted the authority to make law. “The power of parliament is uncontroulable,” he wrote,

But by themselves, and we must obey. They only can repeal their own acts. There would be an end of all government, if one or a number of subjects or subordinate provinces should take upon them so far to judge of the justice of an act of parliament, as to refuse obedience to it […] forceably resisting the parliament and the King’s laws, is high treason. Therefore let the parliament lay what burthens they please on us, we must, it is our duty to submit and patiently bear them, till they will be pleased to relieve us.

On its face, this would hardly seem to constitute a vigorous refutation of a supposedly unsound act of Parliament. Here, it seems, Otis was yet still keen to defend the propriety of an institution upon which generations of British subjects had come to depend for the security of their sovereign rights. Not wishing – ideologically or practically – to argue for the invalidation of Parliamentary authority over Britain’s dependencies in America, he instead affirmed the legitimacy of the same, to the point of describing the suffering created by the passage of potentially harmful legislation as a kind of duty in itself. “Submit and patiently bear them,” he advised. This was hardly a revolutionary statement, though in truth it was not all Otis had to say on the subject.

            Indeed, the following paragraph of Asserted and Proved expanded on its author’s conception of the relationship between Parliament and its nominal constituents to a degree that his otherwise dutiful and self-effacing tone would not have indicated. For instance, while again affirming the formal validity of all measures adopted by Parliament and the inability of any subject(s) of the Crown to disobey them at will, Otis simultaneously asserted that, “If our hands are tied by the passing of an act of parliament, our mouths are not stoped, provided we speak of that transcendent body with decency, as I have endeavored always to do.” After next proceeding to reiterate the personal pride he was given to invest in Britain, its empire, and its institutions – “If I have one ambitious wish,” he wrote, “’tis to see Great-Britain at the head of the world, and to see my King, under God, the father of mankind” – he went on to explain the meaning of this assertion. “The equity and justice of a bill may be questioned,” Otis affirmed, “with per-fect submission to the legislature. Reasons may be given, why an act ought to be repeal’d, & yet obedience must be yielded to it till that repeal takes place.” At a time in the history of Anglo-American politics when criticism of a sitting government was commonly met by defenders of that government with accusations of disloyalty or treason – an era which incidentally came to an end as formal political parties began to coalesce – the assertion made here by Otis of a public right to disagree with a piece of legislation without calling into question the authority under which it was passed was a novel one indeed. The doctrine of parliamentary sovereignty having become something of an absolute within contemporary British political life, Otis was treading upon hazardous ground.    

  

Two further statements from the same passage of Asserted and Proved built upon and clarified this notion of “loyal dissent,” transforming it from an act of conscience into a moral obligation. First, having argued that criticism of a given piece of legislation might in fact serve the interests of the larger community by providing impetus for the relevant court of justice to, “Adjudge such acts void [,]” Otis went on to declare,

I think every man has a right to examine as freely into the origin, spring and foundation of every power and measure in a commonwealth, as into a piece of curious machinery, or a remarkable phenomenon in nature; and that it ought to give no more offence to say, the parliament have erred, or are mistaken, in a matter of fact, or of right, than to say it of a private man, if it is true of both.

Here, it seemed, Otis characterized political dissent as an outgrowth of human curiosity. Not only should pubic criticism of government policy have been understood as inoffensive, he affirmed, but it was only natural for the citizens of Great Britain – or indeed any nation – to question, investigate, or appraise the actions of their administrators. Having earlier acknowledged the possibility of Parliament being at times misled as to certain of the subjects it seeks to address – “The parliament may be deceived,” he wrote, “they may have been misinformed of facts, and the colonies may in many respects be misrepresented to the King, his parliament, and his ministry” – Otis was doubtless of the opinion that this propensity for interrogation was far from unwarranted.

            Having thus declared the inoffensiveness of critical commentary in the public discourse of politics, the natural inclination of humans to question the meaning and significance of their environment, the probability of Parliament acting at times in good faith with bad information, and the ability of well-intentioned criticism to bring about needed reform, Otis then offered a distillation of his stated views in the form of a simple – and yet no less significant – imperative. “With regard to the public,” he asserted, “it is the duty of every good citizen to point out what he thinks is erroneous in the commonwealth.” While this might now seem a rather obvious exhortation towards the cause of good citizenship and civic responsibility, there was reason enough in 1764 for certain of Otis’ fellow subjects to perceive in the sentiment an inherent threat to the role and authority of Parliament. The foundational documents of the contemporary British Constitution, like the aforementioned Petition of Right (1628) or the Bill of Rights (1689), treated the national legislature as the repository and final arbiter of the will of the English people – by, for example, protecting freedom of speech therein, or asserting that taxes could not be collected without parliamentary consent. The cited declaration made by Otis in Asserted and Proved, however, seemed to imply that the people themselves possessed either an authority or a degree of insight which made their judgment superior to that of Parliament.

It wasn’t that he believed subjects of the Crown were entitled to invalidate or disobey statutes with which they found fault or disagreed – indeed, he had made it very clear that this was not his view on the matter at all. But by placing the duty of holding a government to account through a critique of its actions in the hands of the people, Otis was arguably investing them with a degree of moral authority – if not practical power – over the actions and judgments of Parliament. While the latter was free to make what laws it pleased – laws which every citizens was duty-bound to obey – the former were not only capable of passing judgment upon the same, but was in fact required to determine whether these laws were good or bad, sustainable or in need of reform. The separation which this implied between the interests and authority of Parliament and its nominal constituents was both at odds with the logic of the contemporary constitutional order and bore more than a passing similarity to the socio-political theorizing of the aforementioned John Locke. Indeed, it was Locke who, in the second of his Two Treatises on Government (1689), expanded upon the “social contract” theory of Thomas Hobbes by marking the existence of a so-called “right of revolution.”

In brief, this principle – an outgrowth of the notion that government constitutes an uncodified but no less binding pact between rulers and subjects – wholly denies any absolute or inherent claim to authority in the face of error, corruption, or tyranny. Loyalty, Locke asserted, is always conditional, and legitimacy always dependent of the proper exercise of the power in question. This applied not only to kings and princes, he made sure to note, but in equal measure to the elected representatives of the relevant community. “Whenever the Legislators endeavor to take away, and destroy the Property of the People,” he affirmed accordingly,

Or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence.

The tacit implication of this claim – in effect a right which would preferably never be invoked but would remain forever implicit –would seem to be the cultivation of a degree of vigilance among the affected peoples. In order to determine when a given authority had violated the trust placed in them by their subjects/constituents, said communities would need to be watching constantly, judging constantly, and develop a keen understanding of the nature and extent of their sovereign rights. That this would necessarily prejudice the conviction of the people above that of their rulers speaks strongly to the power dynamic that Locke was attempting to describe. Individuals, he argued at length in Two Treatises on Government, were the true and final resting place of sovereignty within the bounds of human civilization. All forms of government representing delegations thereof, and no king, lord, or legislature could claim a higher authority or a superior understanding of what was acceptable in the face of overwhelming popular opposition.

            Otis, as it happened, wrote something very similar in Asserted and Proved. Turning once more to the topic of unjust – i.e. unrepresentative – taxation, he declared in no uncertain terms that,

In a state of nature, no man can take my property from me, without my consent; If he does, he deprives me of my liberty, and makes me a slave. If such a proceeding is a breach of the law of nature, no law of society can make it just [.]

Note here both the use of the phrase “state of nature” – a prominent aspect of Locke’s argument in the aforementioned Two Treatises – and the distinction Otis drew between the “law of nature” and the “law of society.” Much of what he seemed keen to asset in Asserted and Proved was that these two categories had separate origins and carried distinct responsibilities. The law of society was the law of humanity, created by governments, institutions, and individuals for the purpose – in theory – of serving the needs of the community as a whole. The law of nature was conversely what Otis called the law of God, to be observed and obeyed unquestioningly by peasant and king alike as the universal guarantor of justice on earth. While the former was subject to change, revision, repeal, or invalidation as the needs of the community required, the latter was absolute, immutable, and paramount. To this distinction, Otis drew frequent attention. He once rather colorfully affirmed, for instance, that, “To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5; Omnipotency cannot do it [.]” Later, feeling perhaps less waggish but no less assured, he declared that, “All power is of GOD. Next and only subordinate to him […] is the King and Parliament.” This latter citation is of particular importance, for it arguably points the way to the constitutional order that Otis believed he was defending.

            “All power is of GOD [,]” he claimed. Doubtless this was not an assertion with which either the British government of the day or the sitting monarch would have found fault. Nor, indeed, were they likely to disagree that they were “only subordinate to him [.]” Where these parties differed from the author of Asserted and Proved was in precisely what it meant to observe subservience to the Almighty. Otis, like Locke before him, believed that there were certain liberties to which every human being was fundamentally entitled. Combined, these liberties constituted the law of nature, to which all people, all institutions, and all governments were bound. In consequence, when a given entity – be it a king, a court of law, or a legislative assembly – violated the law of nature by, say, failing to respect the property rights of an individual within their jurisdiction, the crime having been committed was not simply a matter of personal injury. While the wounded party was certainly entitled to seek restitution, it was not their authority that had been violated, but God’s. The claim earlier made by Otis and cited above, that, “it is the duty of every good citizen to point out what he thinks is erroneous in the commonwealth [,] was therefore seemingly intended as both a defense of personal freedom and the rights of the affected community as well as an assertion of an obligation to a higher power than the Crown or Parliament.

            The mechanism by which this obligation was to be fulfilled was described somewhat rapturously by Otis in Asserted and Proved as nothing less than the Constitution itself. Specifically, it was the balance of powers, responsibilities, and jurisdictions that combined to form the contemporary British state that served to ensure that security of the law and nature and the wellbeing of society as a whole. Erroneous legislation – the subject which Asserted and Proved was written to address – was bound to be,

Adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so. When such mistake is evident and palpable […] the judges of the executive courts have declared the act “of a whole parliament void.”

Evidently struck by the effectiveness of this system, Otis went on to exhort his readers to,

See here the grandeur of the British constitution! See the wisdom of our ancestors! The supreme legislative, and the supreme executive, are a perpetual check and balance to each other. If the supreme executive errs, it is informed by the supreme legislative in parliament: If the supreme legislative errs, it is informed by the supreme executive in the King’s courts of law. —Here, the King appears, as represented by his judges, in the highest lustre and majesty, as supreme executor of the commonwealth; and he never shines brighter, but on his Throne, at the head of the supreme legislative. This is government! This, is a constitution!

While not mentioned in this panegyric by name, Otis had already made it clear that the public served an essential function within this socio-political framework. By remaining vigilant, loyal, and active, the common citizenry served to remind the various institutions operating within the bounds of the Constitution of the source and purpose of their authority.

            Otis summed up this position – and once more affirmed his debt to the philosophy of John Locke – in the final paragraph of Asserted and Proved. It was his contention, he wrote,

That the civil government is of God: That the administrators of it were originally the whole people: That they might have devolved it on whom they pleased: That this devolution is fiduciary, for the good of the whole [.]

While here the concept of a state of nature is only tacitly invoked, its significance within Otis’ argument was not in the least diminished. “The administrators of it were originally the whole people” he asserted, speaking of government in terms of its abstract origins. This administration was thereafter delegated to individuals and institutions upon the basis of trust and with the intention of providing for the well-being of the general population. And while this act of delegation could not be revoked at will – i.e. by disobeying a given statute or edict – the act itself did not constitute a wholly free grant of power to the authority in question. King, princes, and legislatures alike must act “for the good of the whole,” Otis affirmed. To do otherwise would effectively call into question the nature of the influence that they claimed. The downfall of James II via the Glorious Revolution, cited by Otis at the beginning of Asserted and Proved, was very much a case in point. Having violated the trust placed in him as protector/administrator of the rights of his subjects – by, for example, negating certain acts of Parliament and proroguing that same body upon it objection – James had broken both the law of society and the law of God. His subsequent removal and replacement – accomplished by Parliament and the people in cooperation, for each had suffered their liberties to be violated – was thus both necessary and just.

There was, of course, some difference between the events of 1688 and 1764. While the latter witnessed a king infringe upon the rights of his subjects and their elected representatives, the former – as Otis described it – saw a legislature invade the rights of its constituents. This inevitably made for a somewhat hazier accounting of the crisis at hand. Whereas a number of the major precepts of the British Constitution established protections against the misuse of royal authority, similar safeguards against the abuse of legislative prerogatives were virtually unheard of. Parliament, after all, was supposed to function as both the protector of the people’s liberties and the repository of their will. Why, then, would there have been any need to protect the people from Parliament’s authority? Parliament was the people, as far as the Constitution was concerned. Confronted by this orthodoxy, and while still advocating loyalty and obedience to the contemporary constitutional order, Otis was forced to look elsewhere for sources of relief. That he did not have to go very far was doubtless a comfort. Certain English philosophers – men who had lived through the English Civil War and the Glorious Revolution, collectively the crucible of the contemporary British state – provided precisely the rationale and the language that the opposition to the Sugar Act required. Maybe Parliament hadn’t violated any of the principles of the British Constitution. And maybe it hadn’t exceeded its authority as it was then understood. But it had, by the reckoning of Otis, violated the natural rights of some portion of its constituents. It had, in short, done something wrong. Until this was remedied – until such time as Parliament heeded the respectful criticisms of its American subjects – the sole and rightful legislature of the British people and the guarantor of their sovereignty risked nullifying the rationale of its very existence and rendering itself arbitrary, tyrannical, and, ultimately, void.

The Rights of the British Colonies Asserted and Proved, Part III: Hail Britannia, contd.

            James Otis was also given, within the text of Asserted and Proved, to call specific attention to what he regarded as the most significant legal or documentary sources of this uniquely British species of liberty. The Magna Carta, for example, signed by John I (1166-1216) and an assemblage of barons in 1215 as a means of securing and affirming the inviolable privileges of the latter, was a frequent point of reference. Indeed, Otis at times seemed to characterize it as the essential backstop of English civil rights – beyond which chaos reigned and within the scope of which the most fundamental rights of English citizenship were protected – and in others as an object of instructive commentary by one of Britain’s foremost legal authorities – namely Sir Edward Coke (1552-1634), Chief Justice of the King’s Bench under James I. Evidently this document was at the very center of Otis’ understanding of individual rights in the contemporary British Empire. Not only were its various guarantees – asserting the right of habeas corpus, for example, or guaranteeing the right of trial by jury – the common possession of every subject of the Crown in Britain and America alike, but it formed the basis upon which all subsequent legal structures forming the British Constitution had subsequently been built.

            While popular interest in the Magna Carta in the centuries since its passage had indeed taken to characterizing it as a fundamental guarantor of civil liberties – as did the aforementioned Coke in the early 17^th century, as did Otis himself at the end of the 18^th century – this was in truth a somewhat rosy recollection. Certainly it was a highly significant document. Never before in their reign over England had the Norman kings been forced to acknowledge the inviolability of the rights of any of their subjects. The rights in question, however, were generally not those to which most subsequent commenters and admirers were wont to refer. The Magna Carta was not, contrary to popular belief, a covenant between a monarch and the great mass of his subjects, but rather a kind of contract between a feudal lord and his vassals. It did not, in consequence, affirm the validity of habeas corpus, confirm that freemen could only be taxed with their consent, or assert the universality of trial by jury. Rather, it confirmed the liberties and customs of the City of London, permitted barons to take guardianship of monasteries in the absence of an abbot, and determined that earls and barons should be fined only by other earls and barons. How a list of very specific feudal guarantees transformed in the minds of political philosophers and statesmen into the very broad protections of individual rights that men like Otis freely referenced in pursuit of justice against arbitrary authority is not entirely clear, though it seems to have begun sometime in the 16^th century. What matters for the context of the present discussion, however, is not why this change occurred, or even when, but rather how the reframing of the Magna Carta shaped subsequent public discussions of English citizenship and English law.

            Thanks in large part to the efforts of the aforementioned Lord Coke – whose commentaries upon the Magna Carta were quoted at length in Asserted and Proved – James Otis could feel confident in asserting in 1764 that the Great Charter formed the bedrock of the English liberties to which the passage of the Sugar Act had caused him to appeal. The right to be exempt from taxation levied without consent, for example, was declared by Otis to have originated and been guaranteed by the document in question. “This right,” he accordingly declared,

If it could be traced no higher than Magna Charta, is part of the common law, part of a British subjects birthright, and as inherent and perpetual, as the duty of allegiance; both which have been bro’t to these colonies, and have been hitherto held sacred and inviolable, and I hope and trust ever will.

Mistaken though he may have been in his attribution, the fact that Otis – and indeed several generations of English scholars, statesmen, and jurists – believed this claim does nothing to lessen its significance as an indicator of his perception of contemporary British law and the rights of British citizenship. Seeking a source upon which he could anchor his assertion of the illegitimacy of the Sugar Act, Otis chose the Magna Carta as a kind of legal default upon which he believed all subjects of the Crown – whether they lived in Britain proper or one of its American dependencies – could depend for protection. In so doing, Otis was hardly attempting anything novel, unprecedented, or revolutionary. On the contrary, though the logic of his claims may have been flawed, both his primary source and his methodology were exceedingly well-worn.

            In addition to the Magna Carta, Otis also made reference to the Glorious Revolution and to the British Constitution in general while presenting his case for the illegitimacy of the Sugar Act in the text of Asserted and Proved. As to the former, he spoke of the events of 1688-1689 as though they were a kind of signpost in the history of civil rights in Britain, before which liberty was in question and after which liberty was firmly secured. “The next universal monarchy,” he wrote accordingly, “will be favourable to the human race, for it must be founded on the principles of equity, moderation and justice. No country has been more distinguished for these principles than Great-Britain, since the revolution.” He echoed much this same sentiment in a later passage, declaring that,

A continuation of the same liberties that have been enjoyed by the colonists since the revolution, and the same moderation of government exercised towards them, will bind them in perpetual lawful and willing subjection, obedience and love to Great-Britain [.]

Note here both the informality of the reference – Otis was apparently confident that “the revolution” would communicate all that he needed it to – and the use of the word “since” as a temporal marker. That the author of Asserted and Proved evidently assumed about his audience that they would understand what he was trying to say speaks to his identification of a shared community between them. “Since the revolution” referred not only to a particular era, but to the set of social, legal, and political norms that characterized it. By demonstrating his fluency in these norms and by rooting his argument within them, Otis doubtless aimed to make clear to his readers that the concerns and assumptions of his fellow Americans had their origins in the same frame of reference as – and were thus fundamentally inseparable from – those of their British counterparts.  

            Within this common Anglo-American socio-political context, the Glorious Revolution loomed large as a foundational – or perhaps re-foundational – event in the history of government, civil rights, and constitutionalism in Britain. The abdication of James II, the ascension of William & Mary, the passage of the Bill of Rights, and the general affirmation of parliamentary sovereignty that resulted arguably represented a long-delayed realization of the liberal promise of the English Civil War and its aftermath. Never again would an English monarch attempt to establish themselves on absolutist grounds, arbitrarily dismiss the rights of their subjects, or substantially interfere in the prerogatives of the legislature. Generations of jurists, scholars, and statesmen evinced wholly justifiable pride at this manifest accomplishment, and “revolution principles” became a byword for the values upon which the modern British state was supposedly based. Otis, being as self-consciously British as any Londoner despite having been born and raised in Barnstable, Massachusetts, accordingly expressed much this same understanding in two specific passages of Asserted and Proved. “That the colonists,” he first asserted,

Black and white, born here, are free born British subjects, and entitled to all the essential civil rights of such, is a truth not only manifest from the provincial charters, from the principles of the common law, and acts of parliament; but from the British constitution, which was reestablished at the revolution, with a professed design to lecture the liberties of all the subjects to all generations.

We shall lay aside the stunningly casual – and for the period exceedingly radical – claim to racial equality with which this citation begins in the name of cleaving to the topic at hand. For indeed, the thrust of Otis’ message here – that Americans possessed as their birthright all the rights and liberties of British subjects as guaranteed by the Constitution and reaffirmed by the Glorious Revolution – is more than enough to satisfy the present discussion.

            Consider, to that end, the manner in which Otis described the event in question. Not only did the Glorious Revolution to his thinking constitute a reestablishment of the British Constitution, but this reestablishment was supposedly accomplished “with a professed design to lecture the liberties of all the subjects to all generations.” The pride Otis felt is clear enough, as is his conviction that the Glorious Revolution represented the confirmation of some existing settlement rather than the assertion of something novel or unprecedented. By way of comparison, a passage from one of Cato’s Letters – written between 1720 and 1723 by British opposition polemicists John Trenchard (1662-1723) and Thomas Gordon (1691-1750) – offers a similar conception. Writing in twenty-fourth entry of their one hundred and thirty-eight part series, the authors asserted on behalf of their fellow subjects that, 

It is their undoubted right, and acknowledged to be so in the Bill of Rights passed in the reign of King Charles I and since, by the Act of Settlement of the crown at the Revolution; humbly to represent their publick grievances, and to petition for redress to those whose duty it is to right them, or to see them righted [.]

Mark here how this citation begins. Trenchard and Gordon claimed that the right of petition was “undoubted” – as in certain, absolute, or indisputable – while also noting that its inalienability was further “acknowledged” by the events of the Glorious Revolution. As with the later Otis, the authors of some of the most esteemed political commentaries of the 18^th century thus both referenced the events of 1688-1689 with casual confidence and characterized them as having formally validated something which was – on some level – already known to be true.

            The author of Asserted and Proved accordingly placed himself in enviable – and well-established – company when he chose to make reference to the Glorious Revolution in the tone and manner cited above. A second passage from within the text of the same offers yet more evidence of the degree to which Otis grounded his own sense of liberty, citizenship, and constitutionalism upon the significance of that great touchstone in the British state’s socio-political evolution. Summarizing his case at the conclusion of Asserted and Proved, he declared of the core relationship between the British people and their government,      

        

That by the abdication, the original compact was broken to pieces: That by the revolution, it was renewed, and more firmly established, and the rights and liberties of the subject in all parts of the dominions, more fully explained and confirmed [.]

By speaking with such reverence of the compact between subject, Crown, and Parliament which he believed had sustained the British state through chaos and war – and would in time, he hoped, allow it to rise to a position of absolute dominance over the nations of the world – Otis arguably confirmed the adherence of himself and his countrymen to the same. Were he intent upon the disintegration of the Anglo-American relationship – as some in Britain evidently believed – such praise would have served little purpose. Rather, he might have confined his argument to more general, universal claims as to his and his countrymen’s “natural rights,” the validity of which would not have been contingent upon precedent or custom. As it stood, however, Otis was not interested in defying the contemporary constitutional order by appeals to universal truth. His stance, his sources, and his points of reference were all emphatically English in origin, and the core of his argument accordingly an avowal and celebration of the status quo. In consequence, while he was born and raised in Massachusetts and would never set foot upon the shores of England, it would nonetheless appear a fair characterization to claim that Asserted and Proved as much embodied an English argument for basic civil rights as an American protest against an arbitrary English government.   

The Rights of the British Colonies Asserted and Proved, Part II: Hail Britannia

            As compared to the later Stamp Act (1765), whose widespread application led to a widespread response among the residents of British America – up to and including public protests, riots, vandalism, vigilante activity, and the first collective political action campaign in the history of the Thirteen Colonies – the Sugar Act (1764) was something of a trifle in its day. Its direct effects were felt by few in America – i.e. merchants and distillers – and the public response was accordingly somewhat slight. Granted, the legal implication that so aroused the anger of many Americans in 1765 – that Parliament reserved the right to lay direct taxes upon the people of British America – was fundamentally present in the text of the earlier legislation. The narrow scope of the Sugar Act, however, seemed to limit the degree to which this became a major cause for public concern. The few instances in which substantial protest was offered, while often thorough, earnest, and even forceful in tone, were accordingly less outraged than concerned, less accusatory than consultative. The Rights of the British Colonies Asserted and Proved, by one James Otis, was very much of this character.

Whereas, following repeated assertions by Parliament as to the legitimacy of its claim to tax the colonies of British America “in all cases whatsoever,” American opposition responses were as likely to decry the existence of a conspiracy within the British government aimed at subjugating the people of America as they were to assert the deference all American continued to owe to Parliament and the Crown, Asserted and Proved was exceedingly respectful in its treatment of the institutions and officers of the British state. Indeed, one of this selfsame document’s most striking aspects is the degree to which its author sought to frame his various assertions within a context of affection, reverence, and even adoration for British history, law, customs, and culture. It was not merely that he was eager to stress the pride he felt in being a subject of the British Crown or that he believed the British Constitution to be the best in the world as a means of dispelling any suspicions of disloyalty. Rather, it seemed that the essence of the argument embodied by Asserted and Proved – that Parliament lacked the authority to lay taxes directly upon the people of British America – was so completely lodged in British history, and statute, and case law as to make the assertion of one essentially impossible without resort to the other. In this sense, Asserted and Proved ought not to be understood as a fiery denunciation of contemporary British tax policy. It would instead be more accurate to characterize its approach and its tone as one of dutiful remonstrance. Otis was not interested in delegitimizing either the British state in general or even the sitting government of the day, but rather sought to correct behavior which he felt threatened to unravel the very essence of British – and, by extension, American – liberty. 

To be clear, it was to the form and logic of the British state as it existed at the end of the 18^th century that Otis professed his allegiance and affection. This would normally go without saying – save in the instance that the subject in question was an ardent Jacobite – but for the fact that Otis made a point of declaring so in the opening paragraphs of Asserted and Proved. The Magna Carta and the Bill of Rights were the great symbols of his faith in British law and government, he asserted, and the monarchs and pretenders of the House of Stuart the ogres whose wickedness stood in stark opposition to the justice upon which the modern British state was founded. “The present happy and most righteous establishment,” he further enthused,

Is justly built on the ruin, which those Princes bro’t on their Family; and two of them on their own heads – The last of the name sacrificed three of the finest kingdoms in Europe, to the councils of bigoted old women, priests and more weak and wicked ministers of state: He afterword went a grazing in the fields of St. Germains, and there died in disgrace and poverty, a terrible example of God’s vengeance on arbitrary princes!

In point of fact, the “last of the name” was a reference to James II (1633-1701), who, though he did indeed die and was buried in exile at the Château de Saint-Germain-en-Laye in 1701, was neither the last of his name – his daughters Mary II (1662-1694) and Anne (1665-1714) reigned after him – nor lived his final years in “disgrace and poverty.” The effect of these misstatements, however, has little to do with the argument that Otis was attempting to make. In so repudiating the Stuart monarchs and describing their downfall as self-inflicted and richly deserved, he accomplished the dual purpose of affirming his fealty to the current – i.e. post-Glorious Revolution – constitutional order and providing insight into his own moral cosmology. To his thinking, it would seem, iniquity always met with punishment and justice always met with reward. Otis elaborated upon the mechanism by which this was accomplished in the paragraphs that followed.

            Of the momentous events that resulted from the deposition of James II in 1688, Otis declared that, “The deliverance under God wrought by the prince of Orange, afterward deservedly made King Wm. 3rd. was as joyful an event to the colonies as to Great-Britain: In some of them steps were taken in his favor as soon as in England.” In addition to expanding his personal affirmation of the post-1688 British state on behalf of the American colonies at large, this passage gave evidence of a belief on the part of Otis that the British/American people were the means by which the relevant change was made possible. “Steps were taken in his favor,” he wrote, referring to William III (1650-1702), in the colonies, “as soon as in England.” That the prospective king would need steps to be taken in his favor – indeed, that his ascension to the throne was as much the product of an internal revolution as a foreign invasion – would seem to indicate that popular affirmation was an essential element of his rise to power. Otis appeared to verify this conviction when, in the following paragraph, he said of the aforementioned colonies that, in 1688, “They all immediately acknowledged King William and Queen Mary as their lawful Sovereign.” The fact that he felt this worth stating – that he thought it mattered within the context of the Anglo-American relationship from where the Crown derived its authority – further indicates that Otis drew a distinct connection between the validity of a change in the political order of the British state and the response of the people to the same. It was not merely a question of loyalty to Otis – though he certainly made clear the degree to which he believed the colonists had been loyal to Britain, its governments, and its monarch – but of responsibility, vigilance, and honor.

            The passage that would seem to make this clearest – that speaks most strongly to its author’s belief that the surpassing quality of the British nation to a significant degree hinged upon the virtue of its people – is ironically grounded upon a somewhat arcane legal doctrine. After first declaring – as he often did throughout the text of Asserted and Proved – that he and his countrymen were wholly pleased and prepared to yield, “To the power of that august body the parliament of Great Britain,” Otis proceeded to assert that a statute dating from the reign of Queen Anne further encapsulated his personal understanding of the relationship between the Crown, Parliament, and the people. The act in question, he explained,

Which makes it high treason to deny “that the King with and by the authority of parliament, is able to male laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution [.]

The specific legislation to which Otis referred was the Succession of the Crown Act (1707). Essentially a companion piece to the Act of Settlement (1701), it laid out certain of the logistical details by which a Protestant succession to the throne was to be secured, the procedures that would be undertaken in the event of a vacancy of the throne between the death of the previous monarch and the ascension of their successor, and the means by which interference in any of these processes would be punished. The section cited by Otis fell under third heading, declaring, as it did, the denial of the right of Parliament and the Crown to make laws that affected the succession of the latter to be a form of treason.

            What this has to do with Otis’ understanding of the constitutional order of the British state is not directly stated, though the line that follows would seem to make his intention clear enough. Having declared, as cited above, that the statute in question was “founded on the principles of liberty and the British constitution,” Otis thereafter stated,

He that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, in not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country.

Provided with this declaration, it becomes possible to surmise the meaning that Otis likely hoped to impart. Parliament, as guaranteed by documents like the Bill of Rights (1689) and the Magna Carta (1215), was the repository, protector, and instrument of the will of the British people. The Crown, while possessed of certain essential prerogatives, was likewise bound to respect and obey the sovereignty of the same. The outcome of the English Civil War (1642-1651) and the Glorious Revolution (1688) served to ratify these principles to the greatest effect possible. It therefore stood to reason that Parliament – on behalf of the British people – must have also possessed the authority to limit or alter the mechanism by which the Crown descended from one holder to another. To deny this assertion – by, for example, claiming the right of “the Pretender” James Francis Edward Stuart (1688-1766), son of James II, to inherit the throne – was to effectively deny the right of the people to alter the composition of their government as they say fit and in keeping with “the laws of God, of Nature, and [their] Country.”

            By the reasoning of James Otis, therefore, while the people of Britain and America indeed owed their loyalty and their obedience to the Crown and to Parliament, they owed an even greater fealty to the laws upon which both of these institutions were grounded. Note, by way of confirmation, the exact phasing utilized in one of the passages cited above. The colonies of British America, upon receiving news of the overthrow of James II in 1688, “immediately acknowledged King William and Queen Mary as their lawful Sovereign.” The use of the word “lawful” here would seem to be essential to the message that Otis was trying to communicate. From his perspective, the colonists did not simply opt to replace one monarch with another as their believed it served their common interests. Rather, they determined to forsake a king whose behavior had invalidated his claim to the throne and acknowledge the superior – i.e. lawful, just, right, correct – prerogative of his declared successor. William and Mary were accordingly owed obedience, not because they claimed a right to it but because the British people had affirmed that the laws of the nation – and perhaps of even higher things than that – were on their side. While it would accordingly seem fair to characterize the people – as guided by law, justice, and precedent – as the prime mover within Otis’ conception of the constitutional order of the British state, the exact nature of his understanding of the power dynamics therein was yet more complicated.

    Indeed, Asserted and Proved evinced a somewhat more nuanced and holistic view of what its author believed to be the signal virtues of the British system of government than the citations noted above might indicate. It was not only the degree to which British institutions recognized the inviolable sovereignty of the individual, for instance, but the quality of British law and the firmness of its civil guarantees. Of the former, Otis asserted that the British subject was particularly blessed for the style of title – “Common soccage,” by which the holder of a property customarily owed their landlord only a fixed payment rather than some form of military service – that secured their landed possessions. It was, he declared, “The freest feudal tenure, by which any hold their lands in England, or any where else.” In point of fact, compared at least to contemporary Europe, this statement was not at all far from the truth. Whereas serfdom wasn’t formally abolished in the extensive territories of the Hapsburg dynasty – i.e. Austria, Hungary, and central Europe – until 1781, and feudalism persisted in France until 1789 and in Poland and the major German states until the early 19^th century, Parliament legally ended almost all feudal title in England in 1660 via the Tenures Abolition Act. Thereafter, the majority of existing feudal obligations were converted into “free and common socage,” under the terms of which not even rent was to be any longer collected from the property holders in question. For Otis, this state of affairs – whereby the elected legislature of the British people made a point of limiting the means by which the Crown and its landed dependents could call upon their tenants for military service – was doubtless both a source of pride and confidence. Not only did the relevant legislation exemplify precisely the type of restraint upon arbitrary prerogatives that he was wont to celebrate, but it also served to affirm what he knew to be the unique and precious freedom to which every British subject was entitled.

The Rights of the British Colonies Asserted and Proved, Part I: Context

            Over the course of this series, much has been said about the role played by the Continental Congress in shaping the course of the American Revolution. Documents written by several of its members and published in its name have been explored at length, resolutions passed under its authority have been examined in detail, and the actions of certain of its officers – from Foreign Minister John Jay (1745-1829) to Commander-in-Chief George Washington (1732-1799) to committee chair John Dickinson (1732-1808) – have been discussed in the context of that selfsame body’s agenda and priorities. This is a proper and fitting state of affairs – in light of the influence Congress collectively exercised during the first crucial years of the United States of America – though not one which should be thought to represent the totality of the Revolutionary experience. Congress did not summon the Revolution into existence, after all, nor did it represent the first instance by which those citizens of British America who were dissatisfied with the evolving character of the relationship between their local governments and that of Britain proper make known the nature and quality of their grievances.

The aforementioned John Dickinson, for example, published a series of anonymous missives between 1767 and 1768 – the so-called Letters from a Farmer in Pennsylvania – giving voice to his considered opinion that the acts lately passed by Parliament for the raising of a revenue in America were invalid because they violated the internal sovereignty of the relevant colonies. Similar private efforts at spurring public debate were also made by the likes of Samuel Adams (1722-1803) with his Journal of Occurrences – chronicling the events of Boston’s occupation by British troops beginning in 1768 – Richard Bland (1710-1776), author of An Inquiry into the Rights of the British Colonies, and the Boston Committee of Correspondence, whose Boston Pamphlet (1772) strongly asserted the rights possessed by the citizens of British America and outlined the various ways in which those same rights have been repeatedly and unjustly subverted. Additional condemnations of British policy was rendered by, among others official bodies, the colonial legislatures of Massachusetts – with its Circular Letter (1768) – and Virginia – with its Virginia Association (1769) and Virginia Resolves (1765) – as well as by the combined representatives of nine colonies assembled in New York City as the Stamp Act Congress (October 7^th-25^th, 1765). Clearly, then, years before even the 1^st Continental Congress assembled in Philadelphia in September of 1774, public debate in the Thirteen Colonies over the nature of their relationship with Great Britain had been articulated, guided, and influenced by a number of individual and collective actors. Congress should therefore rightly be thought of as an inheritor rather than the originator of the Revolutionary discourse.

Even these early expressions of political discontent, however, had their antecedents. And while one may fairly venture far, far back into the mists of colonial history in search of precedent for either civil confrontation or armed rebellion between citizens of British America and representatives of Parliament and the Crown, one document in particular presents a fascinating example of political and philosophical dissent that predates all of those pamphlets, missives, articles, and circulars named above while still addressing the same historical context. The Rights of the British Colonies Asserted and Proved by James Otis, Jr. (1725-1783) was in fact written and published before the passage of the Intolerable Acts (1774), the Tea Act (1773), the Townshend Duties (1766), and even the Stamp Act (1765). Indeed, it was the promulgation of the Sugar Act (1764) which prompted Otis to make known his frustrations and his desires as to the present and future of the Anglo-American relationship. In consequence, whereas the abovementioned documents were all written and published within an atmosphere of increasing tension – as American petitions for relief were met with British ministerial retrenchment – Asserted and Proved was one of the first attempts by a resident of the colonies to address what was theretofore an unexpected – and to the thinking of Otis, quite possibly mistaken – shift in Britain’s policy towards its American possessions.

The tone of the piece is accordingly very calm, measured, and even humorous at times as its author seeks to illuminate and rectify what he evidently believed to be an error in judgement rather than a deliberate attack on his and his countrymen’s sovereign rights. Otis correspondingly presents himself as a loyal, affectionate, and respectful subject of the Crown, speaks with awe of the British Constitution and the empire grounded upon it, and makes clear that his fondest desire is only to see the bond between Britain and America strengthened and renewed. For all the praise it lavishes upon all things British, however, Asserted and Proved is far from an unqualified panegyric. Otis was dismayed by the passage of the Sugar Act, and particularly by what it seemed to augur for the Anglo-American relationship. By exploring and elaborating upon this sense of dissatisfaction, Otis revealed a personal understanding of law and political philosophy – within the particular context of British citizenship – very much in keeping with what would soon become the orthodoxy of the Patriot opposition. It was not mere precedent itself which ought to hold sway, he concluded – not only the Common Law tradition upon which the British Constitution was grounded – but the moral principles that the law was supposed to serve.  Asserted and Proved thus constitutes a subtle, moderate, and yet principled consideration of the issues which would soon give rise to an intractable crisis, a political standoff, and an armed revolution.  

Before attending to these heady topics, however, it would seem wise to first say a few words about the man who sought to address them. James Otis, Jr., it should come as no surprise, was the son of James Otis, Sr. (1702-1778), lawyer, one-time Attorney General of Massachusetts, and outspoken political opponent of Governor Thomas Hutchinson (1711-1780). From his father, the younger Otis appeared to inherit a taste for the law, strong political convictions, and a willingness to defy authority at the cost of personal advancement. Indeed, most of his immediate family seemed to possess some or all of these traits – from brother Samuel Allyne Otis (1740-1814), Massachusetts delegate to the Continental Congress, to sister Mercy Otis (1728-1814), Revolutionary playwright and historian, to nephew Harrison Gray Otis (1765-1848), Congressman, Senator, and later Mayor of Boston – doubtless owing both to the influence of patriarch James Sr. as well as the oft-fractious nature of contemporary Massachusetts politics. Of the latter, it bears mentioning that the Otis children – Mercy included – were encouraged by their father from an early age to prize education and public service above the pursuit of wealth or fame. James Jr. was accordingly sent to Harvard College in 1743, attained the provincial bar, and began a successful public legal career. Of the former – the impact of political events upon the early life and character of James Otis the younger – one incident in particular appears to stand out. When, in 1761, the elder Otis was passed up by Governor Francis Bernard (1712-1779) for the office of Chief Justice of the Massachusetts Supreme Judicial Court in favor of the aforementioned Hutchinson – then the sitting Lieutenant Governor – his son and namesake determined to resign his prestigious position as Advocate-General of the Admiralty Court in a gesture of protest. Shortly thereafter – as if to drive the point home – the younger Otis took on a series of pro bono cases on behalf of colonial merchants who sought to challenge the legality of the so-called “writs of assistance” that had been issued to British customs officials then operating in Massachusetts.

These writs essentially functioned as general search warrants that possessed no fixed expiry date, no limitations as to which premises could be searched, and no specifications as to whom they delegated authority. In consequence, a single writ could be used to justify a search of any dwelling at any time, could be transferred from one holder to another, and were valid for as long as their formal issuer – i.e. the British monarch – remained alive. Eager to ferret out smugglers guilty of violating the provisions of the Navigation Acts, the government of the Duke of Newcastle (1693-1768) began issuing these orders in significant quantities beginning in 1760 to the consternation of those merchants whose property became subject to virtually limitless search and seizure. When, upon the death of George II (1683-1760), all the writs in circulation faced a sudden expiry date of April 25^th, 1761, the merchants of Massachusetts seized the unexpected opportunity to challenge the validity of the practice itself. Otis, on behalf of a group of sixty-three clients, filed suit three weeks after news of the pending expiration reached British America, and went on to argue the case in Boston in February and November of 1761. His oration during the former hearing was nearly five hours long and reportedly quite passionate. No less than John Adams (1735-1826), then a young lawyer at the beginning of his career, was in fact present for this occasion, and recorded in his diary for the day’s entry that, "Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities." While the merchants ultimately lost their case and new writs were promptly issued, Otis had succeeded both in making a name for himself within the emerging opposition to contemporary British rule in America and in inspiring others – like Adams – to become more involved in the same.

The next ministerial policy to raise the ire of Otis and his contemporaries was the aforementioned Sugar Act (1764), proposed by the government of Prime Minister George Grenville (1712-1770) as a permanent extension of the earlier Molasses Act (1733). The latter, set to expire in 1763, had sought to promote the purchase by North American merchants of molasses produced in the British West Indies by imposing a tax of six pence per gallon on all examples of the same commodity originating in non-British overseas possessions. While the validity of this excise was generally accepted by the citizens of Britain’s American colonies – its intent being to regulate trade rather than generate revenue – smuggling nonetheless became a very common means by which New England rum distillers in particular skirted its enforcement. Incapable of offering stronger execution in the face of such a widespread trafficking regime – as well as the bribery and intimidation of customs officials – the British government effectively ceased to enforce the terms of the Molasses Act by the end of the 1740s. The conclusion of the Seven Years War (1754-1763), however, along with the changes it wrought upon the empire, ultimately prompted a reexamination of this admittedly failed program, both in terms of the opportunities that appeared to present themselves and the issues that seemed to warrant a definitive resolution.        

In an attempt to provide stable employment to thousands of British Army officers set to be demobilized following the end of hostilities in 1763 – many of whose families possessed significant influence among the ministerial elite – the short-lived government of the Earl of Bute (1713-1792) proposed to establish a garrison of ten thousand men on permanent station in Britain’s North American colonies. Bute’s successor, the aforementioned Grenville, seconded this scheme – a decision much aided by the outbreak of an uprising of Native American tribes in May of 1763 – while also seeking to locate a source of funding. In addition to the cost involved in paying and supplying such a large military force indefinitely, Grenville was eager to begin servicing the greatly-expanded national debt, which had grown from seventy-five million pounds before the war to almost one hundred and thirty million at the beginning of 1764. Looking to North America itself – the defense of which during the late war had contributed significantly to this same increase in spending – the government alighted upon a potential solution in the form of the aforementioned – and functionally obsolete – Molasses Act. If the tax was halved, and if the necessary measures were put in place to see it collected, it was felt that the sudden opening of trade brought about by the end of hostilities and the influx of consumers into the British imperial market facilitated by the annexation of Quebec would serve to generate a sizable revenue while generating a minimum of domestic resentment.

Signed into law as of April, 1764, the response that the Sugar Act received in British America was decidedly mixed. There were most certainly calls of protest, particularly among those whose livelihood was directly affected. Merchants suffering the consequences of a sluggish economy – brought on in large part by the sudden loss the British military as a principle customer – were quick to lay the blame for their newfound financial woes upon the excise its accompanying enforcement campaign. Rum distillers were louder yet in their complaints, declaring the increase in the price of their core raw material a knife in the back on an industry whose profit margins were already distressingly thin. And in a more general sense, the trade imbalance created by the shift in purchasing habits from the cheap smuggled molasses of the French or Spanish West Indies to the more expensive British West Indian product – at a time when these same British Caribbean colonies had far less need for American produce – threatened to drain hard currency out of the various colonial economies and weaken their respective currencies. The potentially significant consequences of this trend notwithstanding, however, the general level of discontent among the colonial populations regarding the Sugar Act and its effects was fairly low. Most colonists not directly involved in the Atlantic economy were likely not in a position to notice the difference if local traders and artisans began to pay slightly more for molasses than had previously been the case. Likewise, the other commodities enumerated by the Sugar Act as being due for taxation – of which there were several, in fact – were luxury goods like spices, fabrics, wine, and coffee imported from France, Portugal, Spain, or the East Indies, the great majority of which would have been beyond the ability of most colonists to afford even without the added duty.

There were, of course, those among the colonial populations not only concerned by the passage of the Sugar Act, but whose anxieties as to what it seemed to represent rose to the level of philosophical distress. The aforementioned Samuel Adams was among this small but vocal group, the principle apprehension of which lay in the manner that offending legislation described its central purpose. Three times in its introduction, the Sugar Act declared that it was “expedient,” “just and necessary,” or “desirous” for the government of Great Britain to endeavor to raise a revenue in America for the purpose of, “Defraying the expences of defending, protecting, and securing the same [.]” To this blatant statement of Britain’s changed intentions towards its American colonies – from merely regulating the trade thereof to profiting upon it – Adams replied in a report to the Massachusetts colonial legislature that the assertion of authority involved, “Annihilates our Charter Right to govern & tax ourselves – It strikes our British Privileges, which as we have never forfeited them, we hold in common with our Fellow Subjects who are Natives of Britain [.]” Frothy though his discontent may have been, however, Adams succeeded in swaying few to his banner. Granted, a number of Boston merchants agreed to stop importing British luxury goods, and movements also emerged in that city and in New York for the promotion of American manufacturing. But these efforts may have been in response to the aforementioned economic impacts of the relevant legislation, and in any case did little to sway the general public to a more active resistance. The situation, to put it simply, was not yet dire enough to arouse the interest of the average colonial American.

James Otis, Jr., however, was far from average by almost any measure of the term. Having already made something of a name for himself as a critic of contemporary British trade policy, the passage of the Sugar Act – and what he, like Adams, perceived to be its long-term implications – could not go unremarked by one whose career was increasingly centered upon the public defense of American liberties. More to the point, he was precisely the man to offer a substantial commentary upon the issues presented by the act in question. In 1762, amidst the death throes of the Seven Years War, Otis had written a fifty page pamphlet under his own name entitled A Vindication of the Conduct of the House of Representatives of Massachusetts Bay, the purpose of which was to offer a rebuke to Governor Bernard and validation to the membership of the lower house of the colonial assembly. Bernard, it seemed, had requested that the assembled legislature appropriate the funds necessary to pay for the construction of ships to serve as protection for the British fishing fleet operating off Newfoundland against the depredations of French privateers. The construction of these ships had already begun, at the behest of the Governor and on the advice of the Legislative Council, and all that was required of the House of Representatives was that they approve the associated expenses.

When that same body, after some consideration, chose to reject the request, claiming that to do so meant, “Annihilating one branch of the legislature [,]” its membership was met with a written rebuke by Bernard, followed by a train of assertions on the part of his office that the Governor and the Council possessed the right and the authority to allocate monies in furtherance of exclusively executive prerogatives. Otis, being himself a member of the legislative body whose authority was being thus impugned, asserted accordingly – at length and with substantial reference to the laws and history of England and Massachusetts – that allowing such a justification to go unchallenged would place effectively unchecked power over the treasury of the province and the property of its citizens in the hands of the Governor, to the point of rendering him a tyrant in all but name. There was nothing, he further declared, in the law of Great Britain, the law of Massachusetts, the law of “nature and nations” and the law of God that could ever account for so gross a usurpation.

Bernard’s reputation suffered greatly in the aftermath of this incident, and that of Otis fairly surged. It therefore bears considering the extent to which the response offered by Otis to the passage of the Sugar Act was inspired by personal conviction and how much was drawn from his personal enmity towards Bernard and the popularity he gained among his fellow countrymen for attacking policies supported by the same. Bernard was yet still the Governor of Massachusetts in 1764, and supported the implementation of the Sugar Act as ardently as would most anyone whose office was owed to Parliament and the Crown. Otis was doubtless aware, then, that whatever effort he made to discredit the offending legislation would in turn serve to further blacken the name of Bernard and his government. Just so, while the public response to the passage of the Sugar Act had been generally somewhat muted, he was surely likewise aware that his reputation was likelier to gain traction than lose it by offering a reproof to Parliament and its supporters. This is certainly not meant to imply that Otis cared only for the effect that his public pronunciations would have on his fame. The energy with which he criticized the use of writs of assistance by British customs officials in 1761 and Governor Bernard’s aforementioned claim to financial authority in 1762 gives strong indication of the sincerity of his efforts and the depth of his conviction. All the same, however, it would be difficult to deny that any man was better placed in 1764 to offer a substantial critique of the Sugar Act, or that anyone stood to benefit more from the attempt, than James Otis, Jr.