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.