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.
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