Discourse Concerning Unlimited Submission, Part I: Context

As noted previously in this series, there has been – and continues to be – some debate among historians of the period as to the precise timeframe of the American Revolution. While conventional wisdom would have it that the thing started in 1775 and ended in 1783, even a moment’s thought would recall that these dates actually conform to the commencement and conclusion of the Revolutionary War. Certainly this conflict lies at the very center of America’s revolutionary saga, acting as both crucible and catalyst for the personal, political, and philosophical horizons of an entire generation, but it, too, flowed into and out of something larger. With this admission, however – that the Revolution was bigger than the war that bears its name – things become slippery. When did the Revolution begin if not in 1775? Is 1774 the answer, when the First Continental Congress held its inaugural session in Philadelphia? Or is it 1765, during which the Stamp Act Congress met in New York City? Maybe 1764, when the Sugar Act was passed and the first rumblings of discontent rippled through British American society? Or perhaps one ought to go back as far as 1689, when the Bill of Rights was approved by Parliament and the “rights of Englishmen” were firmly laid down. In truth, there would seem to be valid cases for each of these dates, just as 1787, 1803, or even 1815 might reasonably be offered as valid end markers for the often discordant processes that gave birth to the United States of America. Bearing all this in mind – that there likely isn’t one answer so much as many potential answers, or perhaps more broadly that the Revolution was never as neat and tidy as we might like to imagine – let’s talk for a moment about something that happened in the year 1750.

There was a church in Boston then – still is, in fact, though it has since been rebuilt – in the West End of the city on Cambridge Street. It was a Congregationalist house of worship – a Calvinist faith in large part descended from 17^th century New England Puritanism – attended at the time by a twenty-nine year old minister named Jonathan Mayhew (1720-1766). On January 30^th, 1750, Mayhew delivered a sermon which he judged to be fitting to the occasion – one which he doubtless hoped would inspire those who heard it to understand certain aspects of the world in which they lived in a new and different way. In this he was quite successful, judged solely by the tenor of contemporary accounts. Transcribed and printed in Boston under the rather verbose title, A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers, it was purported by local resident John Adams (1735-1826) to have been, “Read by everybody.” Subsequent editions were even produced and sold in London in 1752 and 1767. The latter outcome is particularly surprising given Mayhew’s liberal theological leanings and his avowed antipathy for the Anglican Establishment. Its popularity, of course – if not necessarily the acceptance of its central thesis – may have had something to do with its subject matter. The occasion that Mayhew was responding to was the one hundredth anniversary of the execution of Charles I (1600-1649), and in particular the contemporary mainstream Anglican practice of marking the day with fasting and repentance. Charles was not a figure worth revering, Mayhew argued. Indeed, his punishment was warranted by his behavior.

Mayhew deployed scripture to this effect, arguing that the Bible did not provide cover for tyranny any more than its various passages could be fairly applied out of context to support that which the Almighty most obviously opposed. God wanted all of his children to live in peace, health, and security, he asserted, and accordingly had no patience for autocrats like Charles. By oppressing his people, this so-called martyr-king had violated the will of the Lord and sown the seeds of his own destruction. As sermons go, this would have been powerful enough as a description of the blessed wrath which even the most elevated of sinners could expect for their misdeeds. But there was yet more to what Mayhew had to say on the matter. His case was not that God had removed Charles from the throne – and, in turn, from the mortal plain of existence – in punishment for his sins. Rather, it was that Charles’ behavior towards his people had rendered his claim to their loyalty and obedience null and void and that their subsequent overthrow of his reign was not only justified but constituted something of a moral imperative.

The influence of English political philosopher John Locke (1632-1704) was strong in this argument. Just as the author of Two Treatises on Government had argued in 1689 that rulers who no longer served their essential purpose – i.e. promoting order in and protecting the liberties of the community they claimed to rule – could be legitimately overthrown, so Mayhew asserted in 1750 that the validity of a law, a magistrate, or a government was contingent on its promoting the happiness and prosperity that God desired for the whole of humanity. Granted, the minister of Boston’s Old West Church did not explicitly acknowledge the similarity of conviction between his argument and Locke’s. But the parallel was most certainly there, marking the deeply political resonance of Mayhew’s sermon. High Anglicans and High Tories were alike the targets of his ardent disapproval, and his zeal seemed to flow out of both the principles of his faith – Congregationalism being a persecuted sect in Britain – as well as his Whig political leanings. Mayhew’s Discourse thus skillfully blended the sacred and the profane – the Bible and political philosophy – in a way that was both demonstrably popular in its era and arguably prophetic as to certain events that loomed on the horizon. Not only did it seem to prefigure, at a time when Anglo-American relations were enjoying perhaps their last sustained period of harmony and concordance, the need for a durable argument against unconditional obedience to authority, but also it embodied the combination of religious and philosophical conviction that would yet form a cornerstone of the Patriot rationale of resistance.

Having hopefully established that his Discourse is indeed worth exploring in depth, let us now say a few words about this Mayhew fellow himself as well as the context from which he emerged. Born October 8^th, 1720 on Martha’s Vineyard, Jonathan Mayhew was the scion of a Puritan migrant family that was among the first to settle the coastal islands of the Massachusetts Bay Colony in the early 1630s. His father, Experience Mayhew (1673-1758) was a Congregationalist missionary and minister who preached among the local Wampanoag people for over six decades, while his mother, Thankful Hinkley, was the daughter of Thomas Hinkley (1618-1706), the last governor of the Plymouth Colony before its merger into the Province of Massachusetts Bay. Doubtless influenced by the dedication of his forebears to the spiritual and material wellbeing of their fellow man, Jonathan likewise pursued a life in the ministry. To that end he attended Harvard College between 1744 and 1749 and then received a doctorate of divinity from the University of Aberdeen in Scotland. Harvard, at that time in its history, was in the midst of a lengthy period of struggle between the traditionalist and liberal sects within its faculty. This environment, spurred in large part by the ongoing, continent-wide Protestant religious revival subsequently labeled “the First Great Awakening,” was surely a major influence on Mayhew’s theological and philosophical leanings, encouraging as it did a spirit of inquiry and activism. His time at Aberdeen is likewise noteworthy for having taken place in the middle of an era of scientific and philosophical innovation since described as a “Scottish Enlightenment” on par with contemporary trends in mainland Europe. Doubly educated in settings characterized by greater-than-average intellectual dynamism, Jonathan Mayhew was thus particularly inclined, upon the assumption of his duties at Boston’s Old West Church, to question both the spiritual and theoretical underpinnings of the reigning socio-religious order.

A significant element of that order, it turned out, was the cult of King Charles the Martyr. Though very much a product of the Restoration (1660), during which time – as Mayhew himself rather tarty remarked in his sermon – both Parliament and the public as a whole tended to be more than usually deferential to the monarchy in general and Charles II (1630-1685) in particular, the commemoration of the execution of Charles I remained a “state service” in the Anglican Book of Common Prayer until the middle of the 19^th century. In consequence, from the early 1660s onward, the title of the Church of England service for the 30^th of January read,

A FORM OF PRAYER WITH FASTING,

To be used yearly on the Thirtieth of January,

Being the Day of the Martyrdom of the Blessed King CHARLES the First;

to implore the mercy of God, that neither the Guilt of that sacred and innocent Blood, nor those other sins, by which God was provoked to deliver up both us and our King into the hands of cruel and unreasonable men, may at any time hereafter be visited upon us or our posterity.

While the sentiment here expressed was chiefly the product of – and intended to appeal to – High Tory sensibilities, January 30^th remained a mandated Anglican observance alongside the likes of November 5^th (the anniversary of the failed Gunpowder Plot of 1605) and May 29^th (the anniversary of the restoration of Charles II). As to how exactly this came to be, the answer would seem to lie in large part with the publication of a rather curious piece of socio-political propaganda called Eikon Basilike.

            Its title being Greek for “royal portrait,” Eikon was represented at the time of its first appearance in 1649 as the final testament of the lately executed Charles I. It was purported to have been written by the then-imprisoned monarch during his confinement at Carisbrook Castle on the Isle of Wight between 1647 and 1649, though this was impossible to confirm, and detailed the late king’s forgiveness of his executioners, his steadfast believe in the prerogatives of his office, and the personal and spiritual importance he continued to attach – even in the face of death – to the episcopal structure of the Church of England. The document presented Charles, in prose intended to elicit emotion rather than establish a firm and rigorous intellectual justification, as being at once steadfast and penitent, unwavering in his belief in monarchical authority and remorseful only for the sacrifices he had been forced to make to satisfy the demands of Parliament. In light of the freshness of the shock that still surrounded Charles’ execution – Eikon first saw print a mere ten days after the king was beheaded at Whitehall Palace – this appeal to the sentiment of a people yet still in the midst of an exceedingly tumultuous social and political climate was particularly well devised. In spite of official disapproval by the notoriously heavy-handed governments of the subsequent Commonwealth (1649-1653) and Protectorate (1653-1659) of England, Eikon went through almost forty editions in its first year of print alone, occasioned a rebuttal from poet and Commonwealth partisan John Milton (1608-1674) – the poorly-received Eikonoklastes – and was even restructured and set to music in 1657. Following the aforementioned restoration of Charles II to the throne in 1660 – in large part a consequence of the chaos that followed the death of English head of state Oliver Cromwell (1599-1658) – this widespread sense of public sympathy was finally given official sanction with the Church of England’s canonization of Charles I in 1660 and the memorialization of his execution in 1662. 

      

            Granting that all of these events occurred some sixty years before Jonathan Mayhew was even born – and in a land three thousand miles distant from his home in Martha’s Vineyard – he nonetheless had ample reason to rankle at the mere concept of Charles I as a saint and a martyr in the service of God. As a Non-Conformist Protestant minister of the Congregationalist faith, Mayhew would already have been disinclined to favor any aspect of Anglican worship which appeared in substance to resemble Roman Catholicism. Charles’ elevation to sainthood and his commemoration as a martyr both fit this description. At the same time, being descended from Puritans who migrated to New England in the 1630s to escape the oppressive religious policies of Archbishop of Canterbury William Laud (1573-1645) would have doubtless inclined Mayhew to view the reign of Charles I – who appointed Laud in 1633 – as having been particularly repressive and torturous for those who refused to adhere to tenets of the orthodox Anglian faith. As it happened, religious non-conformity was often harshly punished under the authority of Archbishop Laud though the use of the Court of High Commission and the Star Chamber – both extremely powerful judicial bodies answerable only to the monarch – with regular punishments including being whipped, branded, pilloried – i.e. being shackled by the neck and hands as a form of public humiliation – or cropped – i.e. having one’s ears forcibly removed.

In 1637, evidently hoping to export this draconian, state-sponsored form of Anglicanism into Scotland, Charles used his authority as nominal head of the Scottish Church to introduce a new psalter that was nearly identical to the English Book of Common Prayer. Having not been consulted beforehand, the Scottish Parliament and the General Assembly of the Church of Scotland essentially revolted, with the latter going so far as to abolish episcopacy – i.e. the rule of bishops – and declare the national church a Presbyterian polity governed by elders and deacons. Charles responded by declaring Scotland to be in a state of rebellion and spent the next three years attempting to assert his will by force of arms. Not only did the resulting campaign involve the raising and funding of armies without the consent of Parliament – whose members had not met since 1629 – but it also saw the king dismiss the first assembly of the commons of England summoned in eleven years after sitting for only a month. The second Parliament called in 1640 – the so-called “Long Parliament” – proceeded to imprison Laud and the Earl of Strafford (1593-1641), Charles’ Lord Deputy of Ireland and close advisor, hamstrung the king’s ability to dismiss its members in 1641, and eventually took up arms against the authority of the Crown in 1642.

The aggressive religious policy of Charles and Laud was at the center of this series of escalating incidents, and it accordingly stood to reason that the core of the resulting opposition to his reign came from among his Non-Conformist Protestant subjects. English Puritans and Scottish Presbyterians in particular proved themselves especially ardent in their hostility to Charles’ fleeting attempts to maintain the moral and practical basis for his rule, and enthusiastically participated in his capture, overthrow, and eventual execution in 1649. Little over a decade later, on the far side of a tumultuous experiment with republican government and radical church reform along Puritan lines, the restored Charles II and his High Tory/High Anglican allies proceeded to erect a series of laws intended to drastically restrict the civil rights of England’s non-Anglican population. The Corporation Act (1661) essentially forbade anyone not a member of the Church of England from holding public office of any kind. The Act of Uniformity (1662) made the use of the Book of Common Prayer mandatory in all Anglican services. The Conventicle Act (1664) forbade unauthorized public religious assemblies of more than five people. And the Five Mile Act (1665) prohibited Non-Conformist ministers from coming within five miles or an incorporated town or of teaching in most schools. Of these so-called “Penal Laws,” only the Five Mile Act was no longer in force as of 1750.

While once again granting that Jonathan Mayhew was removed from the reigns of Charles I and Charles II by a wide expanse of time and tide, it might fairly be argued that he was not exempt from the effects thereof. Though he spend his life and career in Massachusetts – a community founded and governed by Puritans and their descendants – he could not but have been aware that the faith professed by himself, his family and his neighbors remained a persecuted one by the laws of the British state. Loyal or not, obedient or not, Mayhew would nevertheless have been forbidden from holding public office in Britain or even attending a religious service that was not authorized by the Crown. Combined with the knowledge of how badly his coreligionists had suffered under the reign of Archbishop Laud and the efforts made by the Society for the Propagation of the Gospel in Foreign Parts – an Anglican missionary group founded in 1701 – to convert New England’s Non-Conformist population, he would indeed seem to have had little reason to view the Church of England in general, and its commemoration of January 30^th in particular, as moral affronts to his personal understanding of salvation.  

The Rights of the British Colonies Asserted and Proved, Part VIII: Conclusions and Implications

At the same time that he was casting doubt upon the significance of the colonial charters, Otis was evidently also given to affirm that the status quo indicated by the passage of the Sugar Act represented a distribution of burdens somewhat at odds with the dictates of justice, equity, and common sense. A representation in Parliament from the several Colonies,” he thereby asserted,

Since they are become so large and numerous, as to be called on not to maintain provincial government, civil and military among themselves, for this they have chearfully done, but to contribute towards the support of a national standing army, by reason of the heavy national debt, when they themselves owe a large one, contracted in the common cause, can’t be tho’t an unreasonable thing, nor if asked, could it be called an immodest request.

As it then indeed stood, the colonies of British America were expected to welcome and assist whatever British forces were stationed in their midst and pay whatever taxes were laid upon them by Parliament while also funding their own local defenses and seeing to the debts they had themselves accrued during the recent war with France. This not only meant that Americans would be forced to pay for two military establishments and support two sets of financial obligations, but it placed them in the position of funding a garrison in America over whose actions they exercised no control whatsoever. The Latin phrase that Otis next cited – Qui sentis commodum sentire debet et onus, meaning, “he who enjoys the benefit must bear the burden” – served to embody his objection to this arrangement. Applied in the reverse – i.e. “he who bears a burden must receive some benefit” – he regarded it as a customary guarantee that political authority would never exact costs without providing something of value in return. “That a man should bear a burden for other people,” he thus explained, “as well as himself, without a return, never long found a place in any law-book or decrees, but those of the most despotic princes.” Lest the British sovereign become just that, it followed that his American subjects ought to have been permitted to take their place in the halls of Westminster.                      

            It perhaps bears repeating that this was not necessarily a practical demand. For all of the reasons cited previously, sending American MPs to sit in Parliament was an exceedingly inefficient proposition by which both the British legislative process and the interests of the Crown’s subjects in America would likely have suffered. Indeed, it was surely for this reason that contemporaries of Otis like John Dickinson and Thomas Jefferson – in their Letters from a Farmer in Pennsylvania (1767-1768) and A Summary View of the Rights of British America (1774), respectively – restricted themselves to merely asserting the illegitimacy of Parliament’s claim to freely tax the people of America and calling for a repeal of the relevant legislation. What they shared with Otis, however – or indeed the manner in which they followed Otis – was in their common characterization of the issue at hand as being principally moral in nature. Dickinson and Jefferson alike were both firm and explicit in their conviction that Parliament’s claim to the right of taxation in America was fundamentally and inherently invalid. There were, of course, no laws on the books which clearly and unambiguously agreed with this conviction, nor much in the way of evidence to support any such restrictions upon the authority of Parliament. Nevertheless, they presented the issue as being a matter of right and wrong, natural and unnatural. The rights possessed by every subject of the British Crown, regardless of their place of birth or residence, demanded equal consideration under the British Constitution. No authority on earth could change that fact, and would deny it at their peril.

To be fair, Otis did endeavor to take things somewhat further, deploying in Asserted and Proved a host of legal citations and pragmatic assertions as to why it was improper, impolitic, and impractical for the present government in Britain to continue along the path that the Sugar Act portended. That being said, his core conviction – the thing that subsequent commentators most often echoed – was moral, spiritual, and essential. It wasn’t that Parliament couldn’t tax the colonies directly, for clearly they could. And it wasn’t that such taxation would drive the colonists to rebellion, though obviously that is what happened. Rather, it was the moral character of the British state that stood to suffer in the event that the Sugar Act was maintained. Speaking to this conviction, Otis declared in Asserted and Proved that,

When the parliament shall think fit to allow the colonists a representation in the house of commons, the equity of their taxing the colonies, will be as clear as their power is at present of doing it without, if they please.

While thus tacitly admitting that Parliament could, if its members were so inclined, tax whomever it wished in America to the extent it so desired, Otis simultaneously affirmed the primacy of a higher consideration. Certainly it was possible for Westminster to extract whatever wealth it set its sight upon from the American people. For that matter, it may even have been preferable to do so, though Otis ably claimed otherwise. But no matter how capable Parliament may have been of achieving this end, and no matter what benefits may have accrued in the meantime, nothing could have made it right.

            Asserted and Proved may thus be said to share the unwavering moral certitude of Thomas Paine’s Common Sense in support of nearly the opposite central thesis. Paine wanted to save America from British rapacity by directing it down the path of independence. Otis almost certainly labored in hope of this same result, but seemed to believe that the best way to achieve it was to save the British Empire as a whole. Endeavoring to convince his audience that seating American MPs in Westminster was a sound proposal was thus far from naïve or delusional. Impractical or not, costly or not, inefficient or not, it was the only means he could conceive by which the British state might preserve its status as the steadfast guardian of the rights and liberties of its citizens. Granted, the people of British America stood to benefit measurably and directly from having permanent advocates stationed in the halls of Parliament. The presence of American MPs, for example, would surely have made legislation like the Sugar Act harder to pass, and likewise lessened the ability of British lawmakers to garrison soldiers among communities whose objections never reached their ears. But such advantages did not strike at the true purpose of such a reform. Again, the intention was fundamentally moral. Even if the elected representatives of the American people failed to stop their colleagues in Westminster from levying taxes upon the commerce of Boston or the agriculture of Virginia, or from stationing military personnel in every city and town across the breadth of the Thirteen Colonies, they, their constituents, and their fellow subjects in every corner of the Empire could at least take comfort in the knowledge that the proper forms had been observed, the ancient precedents followed, and the rights of the people respected and observed.

It is perhaps worth noting that in spite of the ardent loyalty to the British state espoused by James Otis Jr. in the text of Asserted and Proved, he ultimately sided with the Patriot cause upon the outbreak of hostilities between Great Britain and the Continental Congress. His earlier dealings with Massachusetts Governors Francis Bernard and Thomas Hutchinson may well have contributed to this outcome, if not also his close personal and professional relationship with the incendiary Samuel Adams. In any case, he proved himself an impassioned critic of subsequent attempts by Parliament to bring British America to heel. He opposed the Stamp Act, for example, upon its passage in 1765 and penned a follow-up to Asserted and Proved entitled Considerations on Behalf of the Colonists. He was thereafter chosen to attend the resulting Stamp Act Congress, convened in New York City for the purpose of determining a collective response on the part of the participating American colonies. Though reportedly passed up as chairman of that body in consequence of his reputation as a firebrand, he was nonetheless described by colleague John Adams as having been the very soul of the gathering. As fate would have it, this may as well have been the man’s epitaph. Having suffered from intermittent bouts of mental illness since at least the 1740s, Otis became increasingly unstable and experienced shorter and shorter periods of lucidity as the 1760s progressed. His participation in the subsequent revolution – to whose language and logic he had so powerfully contributed – was thus severely limited. As if this were not tragic enough, he lived only until May of 1783, four months before the signing of the treaty that finally and firmly secured the independence of the United States of America. Struck by lightning, of all things, while standing in the doorway of a friend’s home, he was fifty-eight years old at the time of his death.  

Such a maudlin recounting of a subject’s last days admittedly represents a diversion from how these discussions usually come to a close. While the life of James Otis Jr. may fairly be considered too brilliant and too tragic to forego relating in full, the circumstances of his career and his contributions to the Patriot cause might also be said to weigh upon the significance of his work. He did not live very long and he was not very prolific. In consequence, Asserted and Proved may have been one of the most important things Otis ever did with his life. How intriguing it is, then, that it should also prove to be one of the most important documents in the history of the Revolution.

Or perhaps that’s going a bit too far. Otis was certainly a revered figure in his day, but his ultimate contribution to the cause of American liberty was – as noted above – necessarily limited. Just so, while it would not be hard at all to believe that Asserted and Proved exerted a significant influence upon the direction and tenor of the emerging Patriot dialogue surrounding the rights and liberties of Britain’s American subjects, it would be likewise difficult to say for certain how and when this might have been the case. Otis was undoubtedly among the first public commenters writing within the context of the late 18^th century Anglo-American crisis to characterize the rights possessed by British Americans – and lately abrogated by Parliament – as being of a natural derivation. This was not an idea that he originated, to be sure – Hobbes and Locke had first discussed the notion up to a century prior – but it was one that had yet to be applied to the increasingly fraught relationship between Great Britain and its American dependencies. It is also worth noting that John and Samuel Adams both reported  being particularly stuck by the power of Otis’ intellect and the strength of his convictions when they heard him speak in the 1760s, and that the events of the Stamp Act Congress doubtless left many more statesmen from far outside the environs of colonial Massachusetts similarly affected. In consequence, while it may once again be overstating matters somewhat to declare that James Otis singlehandedly gave rise to the natural rights discussion within the context of the American Revolution, it nevertheless bears recognition that he was one of the first public voices to so articulate the mounting crisis of the 1760s and that he very often left a distinct and lasting impression of those who encountered his voice.

It may be said with far less ambiguity, however, that Asserted and Proved is one of the most important documents in the historiography of the Revolution. This is to say – for those mercifully unfamiliar with the conventions of 21^st century academia – that while it might not have been the most demonstrably influential documents in its day, it says a great deal to those whose have since attempted to understand the nature of the Revolution about how and why that event came to pass.

Consider, for example, the context in which Asserted and Proved was written. Approved by Parliament in 1765, the Stamp Act is arguably the single piece of British legislation that was most responsible for catalyzing the nascent Patriot movement, inflaming the passions of statesmen from New Hampshire to South Carolina, and for the first time prompting independent, collective American political action. But Otis first wrote in response to the earlier Sugar Act. A comparative warning shot to the Crown’s subjects in America intended to alert them that change was afoot in the relationship between Parliament and the colonies, this claimed attempt at trade regulation angered principally those it affected and roused nothing like the degree of public discontent that 1765 would soon witness. That Otis nevertheless responded to the Sugar Act passionately and rigorously is thus a testament to the keenness of his intellect and the depth of his convictions, as well as a clear indication that discontent had been stirring in America for some time before taxes on newspapers, contracts, and playing cards brought vast swathes of the population to their feet. At a time when victory in war had lately served to bolster the affection these same people felt for the empire of which they were a part, this is no minor point of fact. Indeed, when one considers the nature of Otis’ claim in Asserted and Proved­ – that what mattered most under the British Constitution was not power but right – within the context of the high passion for British imperialism aroused by the successful conclusion of the Seven Years War, it certainly bears wondering whether Otis was the only person in American inclined to question the authority of Parliament or simply the only one to do so publically.    

More fascinating yet, given how influential many of the ideas he presented would eventually prove among his Patriot successors, is that Otis made his case against unlimited British authority in America in the context of loyalty to the institutions of the British state. Not only does this cast Asserted and Proved in a similar light to modern political journalism – i.e. criticism as a means of holding those in power to account – but it complicates popular narratives of the Revolution as being a wholesale rejection of all things British. As noted above, Otis seemed to believe that the best way to save the liberties of his fellow Americans and the integrity of their political institutions was to save Great Britain itself from becoming a state that tolerated the violation of the same. Far from washing his hands of Parliament and the British Constitution, he was thus intent on protecting these very institutions – which he unreservedly hallowed – from corruption, thoughtlessness, and the erosion of established political norms. Indeed, it would in some ways seem fairer to place Asserted and Proved next to something like Cato’s Letters than the aforementioned Common Sense. Like Trenchard and Gordon, Otis was prompted by recent events – the 1720 collapse of South Sea Company stock for the former, the 1764 passage of the Sugar Act for the latter – to diagnose the ills then plaguing the contemporary British state. That the authors of Cato’s Letters wrote from within the context of early Georgian Britain while the sole scribe of Asserted and Proved was a late 18^th century Massachusetts lawyer affected only the circumstances of their work and not its purpose. Otis was united with his predecessors Trenchard and Gordon in seeking to expose the failings of a particular government as a means of preserving the soul of an empire. 

If nothing else, the ease with which this kind of similarity may be drawn should suggest – as many of the discussions undertaken in these pages have attempted – that the America Revolution was indeed a process rather than a moment. Contrary to the most popular narratives – which so often seem to begin with the Boston Tea Party and end with the Battle of Yorktown – the crisis that gave birth to the United States of America defies simple description. It was the child of many mothers – religious, political, philosophical, economic – began when it began – 1775? 1765? 1764? 1688? – ended when it ended – 1783? 1787? 1803? 1865? – and was at no point as cut and dried as two centuries of retellings would have it appear. Asserted and Proved is arguably symbolic of this definitional slipperiness because the image it conjures seems to be so plainly at odds with what the Revolution is best known for. Jefferson’s Declaration of Independence and Paine’s Common Sense describe a people since exhausted by the strain of attempting to negotiate an acceptable solution to an ongoing political crisis. That was 1776. The critique rendered by James Otis of the recently-passed Sugar Act meanwhile evinces the loyalty and affection many Americans then sincerely felt for Great Britain and its institutions and the patience they were willing to exercise in seeing preserved the bond between that country and their own. That was 1764. The failure of one made the other possible. Such was the nature of the process. Such was the nature of the American Revolution.

Anyhow, that’ll do me. Take a look for yourself sometime. 

The Rights of the British Colonies Asserted and Proved, Part VII: Conclusions and Implications

Similarly intolerable to the author of Asserted and Proved – and doubtless intended to appear more alarming to his British readership than talk of corrupt magistrates in a distant land – was the latent relationship Otis described as being at play in America between standing armies, limited local oversight, and the lure of military glory. The principle element in this unfortunate triumvirate was of course the continued existence in America of a large British garrison after hostilities with France and Spain had ended and peace had returned to the continent. As aforementioned, the presence of these troops was the shared brainchild of Prime Ministers Lord Bute and George Grenville, both of whom agreed on the necessity of keeping large numbers of British officers commissioned and paid while also dissuading potential revolts in newly acquired territory. Not only did this policy irritate the political sentiments of many in the colonies whose inherited British social mores rankled at the notion of maintaining standing armies in a time of peace, but it once more seemed to draw a line under the fact that Britain’s American subjects were somehow inferior to their British-resident counterparts. There were no American MPs to vote for the relevant military expenditures, after all, or to debate the selection of a commanding officer. British representatives made those decisions, elected by British citizens for whom America was almost certainly something less than a distant speck on the horizon. In consequence, if the military forces in question abused their authority, took advantage of the populations they were supposed to protect, and in general made themselves the terror of the Crown’s American subjects, recourse could only be had through remonstrance and petition at a distance of three thousand miles.

And yet, Otis, avowed, America would not be the only region of Britain’s vast and growing empire to suffer from the stationing of military forces so far from the relevant authorizing body. Granted, Americans stood to suffer first and foremost, but Britain, too, would sooner or later feel the ill-effects. “History is full of examples,” he thus cautioned,

That armies, stationed as guards over provinces, have seized the prey for their general, and given him a crown at the expence of his master. Are all ambitious generals dead? Will no more rise up hereafter? The danger of a standing army in remote provinces is much greater to the metropolis, that at home. Rome found the truth of this assertion, in her Sylla’s, her Pompey’s and Caesar’s; but she found it too late: Eighteen hundred years have roll’d away since her ruin.

It is perhaps not terribly surprising in this instance that Otis should have resorted to a reference to classical antiquity. His education – between the tutors his father contracted for him and his siblings and his years at Harvard College – certainly would have left him both prepared and inclined to describe the political and philosophical questions he encountered through the lens of ancient Greek and Roman history. At the same time, it perhaps isn’t clear precisely whom the comparison of Classical Rome and 18^th century Britain was supposed to flatter. Was Otis, out of a sense of loyalty, attempting to rouse the supporters of Pax Britannicus to a keener suspicion of the military authorities they had seen fit to commission in America? Or was he speaking on behalf of the British people by seeking a pre-emptive defense against the rise of another tyranny on the order of Caesar? The answer would seem to depend on which era of Roman history he had intended to cite.

            In terms of sheer numbers, the scenario described by Otis – of a military commander in the provinces using his popularity among his troops to cease power in Rome – was far more common in the 3^rd century than in any other epoch of Roman antiquity. Indeed, between the years 235 and 268 as many as a dozen men succeeded to the imperial dignity through some form of military sponsorship. Maximinus Thrax (173-238), for example, used his position as commander of the legions in Pannonia – now the northern Balkans – to depose, assassinate, and replace Emperor Alexander Severus (207-235). Trajan Decius (201-251) similarly seized the imperial throne upon the acclamation of his troops during a campaign on the Danube, as did Aemilianus (213-253) after defeating a Gothic invasion of present-day Anatolia. So common was this practice that historians – doubtless for the sake of convenience – have since taken to describing these men as the “barracks emperors,” and the era in which they rose and fell as the “Crisis of the Third Century.” If this was the context to which Otis intended to allude, his comparison of Rome and Britain would indeed appear a flattering one. Granted, the Roman state of the third century was notoriously weak, corrupt, and bereft of capable leadership – thus opening the door for successive coups and usurpations. Nonetheless, it remained the most extensive empire the world had yet seen. That Britain could reasonably claim this same mantle in 1764 was very much a source of pride and confidence for its citizens and statesmen alike. The warning that Otis offered in ­Asserted and Proved could therefore easily have been aimed at protecting this glory from the chaos and tyranny previously suffered by imperial Rome.

            Preserve the liberties of the American people, Otis appeared to assert, and protect those of their British brethren in turn. This equation only makes sense, of course, if it can be believed that any of the military commanders appointed by Parliament to oversee the garrisons stationed in America following the Seven Years War were capable of either threatening the legitimacy of the sitting monarch or declaring the colonies a rival empire under their own authority. Certainly, these were the two paths universally trod by the barracks emperors of Rome’s tumultuous 3^rd century. But while a lack of oversight did much – had done, would do much – to create opportunities for ambitious generals to seize the initiative and succeed in rallying their troops to their own personal standard, this was perhaps the only similarity between the conditions existing in Rome’s provinces in the 3^rd century and Britain’s American colonies in the 18^th. British commanders in far-flung Quebec, in the region of the Great Lakes, and in chronically insecure Georgia indeed enjoyed significant flexibility – thanks to three thousand miles and three months distance – as to how and where their directed their troops. That being said, politics and the military were not so intrinsically intertwined in 18^th century Britain as they had been for nearly the entire duration of Roman history. British commanders during the 18^th century were not politicians-in-waiting in the way that their Roman counterparts traditionally had been, inclining instead for careers spent entirely in military service. In addition, while the pay of a soldier serving in the Roman Legions was in large part determined by the success of his commander in securing sources of plunder, British regulars in the 18^th century were paid a daily salary at the behest of the Treasury. In consequence, while the average solider in British service in the 1760s may well have felt a deeper sense of affection and loyalty towards his commander than his government, his commander could not guarantee his pay. Thus, without managing to secure some means of independently financing a rebellion against Parliament and the Crown – or of guaranteeing success on a short enough timeline as to ensure continuity of payment – the manner of usurpation Otis warned of in Asserted and Proved would have been next to impossible to carry out.

            Bearing all of this in mind, let us return to the quotation cited above and consider more closely the choice of words therein. While ostensibly attempting to warn his fellow subjects of the threat to the Crown posed by the loosely-supervised military forces then stationed in British America, Otis notably described the analogous danger to ancient Rome with the phrase “her Sylla’s, her Pompey’s and Caesar’s.” That Otis would have chosen Lucius Cornelius Sulla (138-78 BC), Gnaeus Pompeius Magnus (106-48 BC), and Gaius Julius Caesar (100-44 BC) as the collective embodiment of the perils of military tyranny would seem to cast a different light indeed on his perspective and intentions. These were not figures from Rome’s imperial history, after all, but rather three of the most prominent soldier-statesmen of its late republican era.

Sulla, talented general and statesman, marched on Rome twice in pursuit of his populist rival Gaius Marius (157-86 BC), thus famously breaking with ancient proscriptions against the presence of armies within the city limits. During his second occupation of the city (82-81 BC), after having convinced the Senate to grant him the office of Dictator, he put to death thousands of people deemed enemies of the republic and restructured the Roman constitution in a way that shifted power away from the common citizenry and strengthened the traditional elites. Pompey, an acolyte of Sulla, was likewise an exceedingly successful commander and politician whose popularity following a successful campaign in Anatolia made him a threat in the eyes of the Roman Senate. Thus stymied in his attempts to secure the passage of populist legislation in 60 BC – guaranteeing, among other things, the distribution of land to veterans and the urban poor – he formed an alliance with Marcus Licinius Crassus (115-53 BC), the wealthiest man in Rome, and the aforementioned Caesar that sought to set the direction of contemporary Roman politics via the popularity and patronage that the three men had at their collective disposal. When, following the death of Crassus at the hands of an Iranian dynasty called the Parthians, Caesar refused to surrender control of the armies under his command after eight years spent “subduing” the Celtic tribes in what is now France, this alliance collapsed and Rome was plunged into a civil war (49-45 BC) that saw the republic wholly undermined, Pompey killed in exile, and Caesar himself declared Dictator-for-life.

Granting that Sulla was considered essentially a conservative who championed the traditional prerogatives of the Roman ruling class while Pompey and Caesar were by and large populists whose support came primarily from the lower classes and the army, these three men nevertheless shared responsibility for fatally undermining – and later destroying – the foundations of republican government in ancient Rome. Doubtless this was precisely what Otis was driving at by naming them in Asserted and Proved. The barracks emperors of the 3^rd century may have been more numerous and perhaps more brazen in their attempts to seize the imperial throne by force, but they damaged nothing with their actions that wasn’t already in a state of decay. Sulla, Pompey, and Caesar, however, through their greed, ambition, and pride, brought about the collapse of a republic whose quality and virtue were idolized by men like James Otis. This evident disdain for Caesar in particular was made clearer still in a subsequent passage upon the same topic as cited above. “Whereas a good provincial militia,” Otis avowed,

With such occasional succors from the mother country, as exigencies may require, never was, and never will be attended with hazard […] The experience of past times will show, than an army of 20 or 30,000 veterans, half 3000 miles from Rome, were very apt to proclaim Cesars. The first of the name, the assassin of his country owed his false glory, to stealing the affections of an army from the commonwealth.

Again, while the scenario here described very much applies to the aforementioned soldier-emperors of the late Roman Empire, Otis’ fixation upon the figure of Caesar gives plain enough evidence of what he really feared.

            Doubtless influenced – as were any number of his countrymen who later supported the cause of American independence – by the works of British republican scholars and artists like Joseph Addison (1673-1719) and the aforementioned John Trenchard and Thomas Gordon, Otis was inclined to see in the image of renegade generals a threat to the liberties of the common people before any particular danger to the political status quo. The Roman Republic – regarded by contemporary Anglo-American critics of arbitrary government, corruption, and public immorality as an ideal of socio-political balance and integrity – had been brought low by the maneuverings of generals whose ambitions exceeded their virtue. They disregarded the great taboos of Roman political life in pursuit of the triumphs that their pride demanded and, in so doing, transformed an oligarchic republic into an autocratic dictatorship. Admitting that the rise of a figure like Caesar was unlikely to replay itself in any part of Britain’s 18^th century empire for the reasons cited above, however, could not obviate the danger posed by the equivalent emergence of ambitious British generals in America. So long as these military officials were permitted to exercise their power at so great a distance from the body responsible for holding them to account, and so long as they accordingly pursued their stated objectives without any need to respect the liberties of their people among whom they were stationed, the rights of every British subject were in substantial danger.

            As Otis asserted during a discussion of the implications he perceived at the center of the Sugar Act, even longstanding prohibitions were next to impossible to reassert once they had been violated. “This barrier of liberty being once broken down,” he wrote of the traditional British proscription against taxation without representation, “all is lost.” This same caution would seem equally applicable to Otis’ warnings against the garrisoning of standing armies in America. Just as Sulla’s violation of the pomerium of the city of Rome – being a ban upon the entrance of armies into the city – weakened the political conventions of the republic sufficiently to clear the way for Caesar to do the same, so Asserted and Proved seemed to argue that the violation of the rights of British subjects living in America by the commanders of standing armies would make their subsequent abrogation by these same figures in other parts of the empire that much easier. For the people of Britain to allow a general stationed in America to abuse the liberties of the populations he had ostensibly been ordered to protect – in the name, say, of promoting the collection of taxes approved by Parliament – would therefore potentially open the way for armies garrisoned in Cheshire, Middlesex, or even London itself to be put to work enforcing ministerial prerogatives at the expense of the rights of the general citizenry. The Crown had no reason to fear this eventuality. The Houses of Parliament would in all likelihood remain safe from harassment. It was the people who would suffer – American and British like – as that element of the British constitution thought of by critics of political centralization and the growth of patronage as being most republican and classically Roman in character was eroded by the greed and ambition of a well-placed few. 

            The point that Otis was trying to make with Asserted and Proved, of course, was that this need not have been the case. The Crown’s subjects in America need not have suffered the presence of military forces commissioned and paid by a government over which they held no influence. Nor did the citizens of Britain proper need to endure the abrogation of their liberties at the hands of generals empowered by the free reign their brethren were permitted in America. Allow the citizens of British America to elect representatives to sit in Parliament, Otis avowed, and these looming ills may yet be averted. Even in the face of the revocation of the various colonial charters – something which many of his countrymen particularly dreaded – the author of Asserted and Proved held to the efficacy of this proposition. “Even when the subordinate right of legislature is forfeited,” he wrote accordingly,

And so declared, this cannot affect the natural persons either of those who were invested with it, or the inhabitants, so far as to deprive them of the rights of subjects and of men [.]

This was an intriguing claim on the part of Otis, in light of both his largely Anglo-centric approach in Asserted and Proved and the significance his predecessors and countrymen had customarily attributed to the aforementioned colonial charters.

Across the history of the English/British colonial project in America, these selfsame documents were often closely – one might say at times jealously – guarded by the inhabitants of the various polities they described. The formal abrogation of the charters of Massachusetts, New Hampshire, Rhode Island, Connecticut, New York, and New Jersey as part of their amalgamation into the Dominion of New England between 1686 and 1688 was notably marked by widespread discontent, resentment, and acts of civil disobedience. The government of Connecticut was famously slow to acquiesce to this process, forcing Dominion officials to travel to Hartford in 1687 to take possession of the relevant charter in person. While it cannot now be conclusively proved, it was reported and believed thereafter that the document was then hidden in the trunk of a nearby oak tree and a copy presented to the waiting officials. Two years later, upon the deposition of James II and the ascension of William & Mary, the Dominion government collapsed amid an outpouring of popular frustration, caused in no small part by the nullification of property rights and local governments previously guaranteed under the revoked charters. The years that followed witnessed the rapid reassertion of the primacy of these documents and the governments they described, as well as the 1691 merger of the Massachusetts Bay Colony and the formerly charter-less Plymouth Colony into the Province of Massachusetts Bay.

As this saga alone would seem to demonstrate, the documents upon which the various colonies of British America were grounded occupied a special place in the minds of many of the inhabitants therein. Perhaps it was parochial of them to think so, but some portion of Connecticut’s governing officers serving in 1687 evidently believed the piece of paper that described the nature and limits of their authority to be of such great importance that they could ignore the directives of their nominal superiors so long as it remained in their possession. At the same time, the citizens of Massachusetts Bay were well-justified in lamenting the loss of their own colonial charter when its nullification resulted in the potential dissolution of their existing land grants and the wholesale restriction of their beloved town meetings. For James Otis Jr. to thus claim that America liberty, at its core, was not dependent upon the sanctity of these documents was a novel – perhaps even alarming – thing indeed. To his thinking, it seemed, being a British subject of any kind – whether one lived in Bermuda, Bath, or Boston, Massachusetts – entitled a person to the inalienable enjoyment of certain fundamental rights. “Deprived however of their common rights as subjects, they cannot be,” he thus declared, “while they remain such.” Full representation in Parliament was accordingly the best means of asserting that this essential moral truth was also a practical, undeniable fact.

The Rights of the British Colonies Asserted and Proved, Part VI: Conclusions and Implications

            Perhaps the most novel element of The Rights of the British Colonies Asserted and Proved, beyond either its manner of address or the core of its critique – both of which were emphatically, self-consciously British – was the solution it proposed to the crisis then looming over the Anglo-American relationship. The issue at hand, its author Otis claimed, was the distance that existed between the people of America and their nominal governors in Britain. Physically as well as administratively, neither information nor intention could travel quickly and directly from the Crown’s American subjects to Westminster and back again. Whether it was the efforts of appointed colonial governors to interpose their will in place of the monarch, governments in Britain attempting to make law for people in America they hailed as constituents but could hardly claim to know, the difficulty inherent in overseeing over a dozen different governments meeting in as many different locations, or the vast and rolling ocean that separated one from another and added months to even the simplest communication, America and Britain seemed ever to fumble at mutual understanding. What needed to happen, as near as Otis could tell, was a fundamental consolidation of the Anglo-American dynamic. No longer could Americans rely upon appointed envoys to convey their wishes to a distant monarch. And no longer could Parliament claim to act in accordance with the sovereign will of a people whose interests were known to it peripherally if at all. Instead, the British government would need to acknowledge the subordinate – but no less distinct and separate – authority of the provincial legislatures while at the same time making provision for the enlargement of the Houses of Parliament in order to accommodate the seating of members elected from America.

            Again, this was an unusual proposal on the part of Otis, and one which was freighted with logistical difficulties. Britain and America were indeed thousands of miles distant, separated by a notoriously turbulent and storm-prone ocean. Information thus travelled slowly from one region to the other, presenting a significant – one might say insurmountable – hurdle to efficient bi-continental administration. Parliamentary elections, for example, already took place over an average period of two months at the beginning of the 1770s. As each county or borough formulated its own procedures and set its own dates for voting and returns, results trickled in slowly and incoming members weren’t seated in full for months after the final ballot was counted. Adding members for the American colonies accordingly threatened to turn this already time and labor intensive process into an interminable, trans-Atlantic paper chase. A writ of election would need to be sent from Britain to America, and then vote tallies sent from America to Britain, followed by final results from Britain to America again. At this point the victors in America would need to make the journey to London to take their seats in Parliament – adding between six weeks and three months to an already lengthy process – secure places of residence, and adequately familiarize themselves with the relevant legislative procedures. Thus, before even calling a quorum at the first session of a new Parliament, the addition of American members would seem to turn a three month endeavor into one lasting half a year.

Delays on this order would appear to multiply when one factors in the necessity of these American MPs occasionally consulting with their assigned constituents. Whereas the member for, say, Orkney and Shetland – the farthest riding from the seat of Parliament in London – could expect in 1770 to take around two weeks to travel to their constituency and back in order to assess the mood of their electors, their theoretical counterpart from Boston or New York City could expect no better than three months to elapse between the time they either depart or send a request for information and when they might claim to be satisfied in having an answer. With such interruptions arising potentially at any time during a given legislative session, the likely result would appear to be either an intolerable arresting of the speed at which the business of Westminster was transacted or the habitual short-changing of the needs of American MPs. That neither of these outcomes was particularly desirable was surely apparent to the author of Asserted and Proved. And yet, for all the deficiencies inherent in the attempt, Otis believed the alternative – which is to say, the status quo – in so many ways to be so much worse. While this might perhaps appear a somewhat unrealistic argument – indeed, most of Otis’ American contemporaries were content to request that Parliament simply refrain from further direct taxation – Otis presented a typically thorough and convincing case which brought both practical and moral evidence to bear in its favor. Britain owed its American subjects, he argued, just as they owed Britain in turn.

One source of ire and confusion that Otis identified as being in particular need of reform was the relationship that existed between the citizens of the various colonies and their appointed chief executives. Excepting Pennsylvania and Maryland – both of which were formally the domain of individual Lords Proprietor – every one of the Thirteen Colonies as they existed in 1764 possessed a governor appointed by the Crown on the advice of the sitting ministry. In consequence, while the magistrates in question were indeed beholden to the authorization and oversight of the contemporary British government, their authority in America was at the same time largely unchecked. Speaking to this state of affairs, Otis lamented that,

Gentlemen have had departments in America, the functions of which they have not been fortunate in executing. The people have by these means been rendered uneasy, at bad Provincial measures. They have been represented as factious, seditious, and inclined to democracy whenever they have refused passive obedience to provincial mandates, as arbitrary as those of a Turkish Bashaw [.]

Colorful language aside, this was not a wholly uncharitable evaluation of the behavior of certain of British America’s late 18^th century chief executives. Some, like Virginia’s Lord Dunmore (1730-1809), took advantage of their wide-ranging responsibilities – and the opportunities they provided for the consolidation of both their popularity and their power – by leading exhibitions against neighboring native peoples while also ignoring the local legislature. Others, like North Carolina’s William Tryon (1729-1788), used tax increases to pay for personal luxuries and directed the provincial militia to suppress popular accusations of corruption and cronyism. Granted, these men did not necessarily represent the majority among their fellow office-holders. James Wright (1716-1785), for example, was both successful in his efforts to expand Georgia’s economy and popular as a result, while New Jersey’s William Franklin (1730-1813) oversaw an infrastructure expansion and criminal justice reform over the course of his fourteen years in office. The issue, therefore, was not so much that every governor was a tyrant in waiting, but that their propensity to do good or ill – to act selflessly or otherwise – was untethered from any public mandate or close official scrutiny. If they were good, in short, Americans were lucky. And if they were bad – heaven forbid – Americans were stuck with them all the same.

It thus fell to the individual governor to determine according to their own standards of behavior which among their subjects were loyal and virtuous and which were wicked and rebellious. And while the various colonial legislatures certainly had it in their power, in the event of what their perceived to be abusive or tyrannical actions on the part of their chief executive, to petition for redress from Parliament and the Crown, their access to and influence within the halls of power were likely to be comparatively limited. After all, many of the men appointed to govern Britain’s American dependencies were from influential families, were owed favors, or were a particular friend of the government of the day. In consequence, though it was certainly possible for the reigning ministry and the Crown to acquiesce to the plea of a given colonial assembly by removing the relevant officer – Sir Francis Bernard (1712-1779), for instance, was notably recalled from his post as Governor of Massachusetts in 1769 after a petition to that effect was dispatched by the relevant legislature – colonial governors tended to enjoy some degree of social and institutional insulation from popular discontent. This favored status also made it much harder for those colonial subjects accused of sedition, treason, or rebellion from easily making the case for their innocence. Faced with reports from America of popular demonstrations or riots – in response to a piece of legislation, say, or an executive edict – the sitting government in Britain could choose to believe either the pleas of the discontented or the assurances of their chosen magistrate. As the latter already occupied a position of trust, had likely been documenting expressions of purported disloyalty for some time prior, and was closer to the situation than anyone in Parliament, it naturally followed that most colonial governors in British America enjoyed the benefit of the doubt whenever turmoil arose in their assigned domain.

Having suffered his fair share at the hands of his colony’s own chief executive – the aforementioned Bernard – Otis was doubtless particularly keen to see this situation remedied. The cited logistical issues aside, American representation in Parliament would surely have achieved just that, or gone some distance toward it. Rather than attempt to have their petitions for redress heard in Westminster through the efforts of sympathetic British MPs or colonial agents whose access to the mechanisms of power was both limited and contingent, American dissatisfied with their appointed governor could simply write to their elected representative. Certainly this would not have guaranteed that the issue in question would be taken up on the floor of the House of Commons, but it would at least have provided Britain’s American subjects with something approaching equal access to ministerial influence. As colonial governors often held weight with the members of a sitting government – thus often guaranteeing them a sympathetic ear in the halls of power – Americans could simultaneously rest easy knowing that they possessed a representative in Parliament itself. Not only would this have made it easier for disgruntled colonists to make their case to those in a position to offer relief, but it would have ensured a permanent American voice in all Parliamentary business concerning the appointment or recall of American governors. Rather than have someone foisted upon them without their consultation, Britain’s American subjects could expect and enjoy a full and equal voice in deciding precisely who was chosen to oversee their domestic affairs. Again, this certainly would not have guaranteed that every individual granted the office of governor was exactly to the liking of his nominal constituents. All the same, it would have at least raised the political status of the Crown’s subjects in America to something like that enjoyed by their counterparts in Britain.

The Rights of the British Colonies Asserted and Proved, Part V: The Otis Theorem, contd.

            However successful James Otis may have been in his attempt to demonstrate – via the medium of his 1764 treatise Asserted and Proved – that the British Parliament had indeed erred by passing the Sugar Act and laying a tax upon a people which it did not represent, there remained the question of what to do next. It was one thing to prove that the Sugar Act was invalid, that its existence threatened the constitutional integrity of the British Empire, and that it was in need of repeal. Accomplishing all of these things would still have left unaddressed a larger and more serious problem. Having approved such legislation before, what structural elements existed within the contemporary constitutional order to prevent Parliament from doing so again? To put in another way, what reforms were needed for the British state to successfully avert the looming catastrophe that the passage of the Sugar Act had unwittingly revealed? These were big, consequential, and complicated questions, the answers to which may well have held within them the salvation of an empire at the height of its power and glory. Never the type to be easily dissuaded when he knew he was right, James Otis naturally attempted to answer them. Asserted and Proved therefore contains both a systemic critique of the Sugar Act and a thoroughly-reasoned proposal by which the flaws it had exposed in the contemporary constitutional order might have been successfully repaired.

            The problem, Otis seemed keen to impart, was largely one of clarity. It was not clear, to his thinking, precisely how the relationship between Parliament and the various colonies of British American was supposed to function. Specifically, it was nowhere spelled out which responsibilities fell within the jurisdiction of Westminster and which were rightfully the remit of the various colonial legislatures. Certainly the former were subservient to the latter – a contention which Otis repeated again and again – but what did this mean in a practical sense? To what degree did functional subservience give way to the God-given liberties of a sovereign people? In seeking to answer these questions, Otis formulated a rather subtle premise. “It is often very difficult,” he asserted,

For great lovers of power and great lovers of liberty, neither of whom may have been used to the study of law, in any of its branches, to see the difference between subordination, absolute slavery and subjection, on one side; and liberty, independence and licenciousness, on the other. We should endeavor to find the middle road, and confine ourselves to it.

The issue that Otis evidently hit upon was that subservience was possessed of a specific legal significance that did not necessarily conform to its casual usage within the contemporary public discourse between Parliament and the colonies of British America. To claim that the various colonial assemblies were subservient to Westminster should therefore not have been misconstrued to mean that Parliament was free to pass whatever legislation it pleased regarding America while the colonists were free only to obey and abide. The relationship was more complex than that.

            There were things that Parliament could do in America and things that it could not. It could make law for the colonies, for example, regulate their trade, establish courts, and assign military forces. In the sense that the colonial legislatures could not legitimately countermand actions that fell within these categories, Westminster was superior. At the same time, however, Parliament could not levy taxes upon the colonies in order specifically to generate revenue. That responsibility rested solely with the colonial assemblies. This did not necessarily make them superior to Parliament – in that they were not claiming a prerogative which Westminster had traditionally possessed – but it certainly placed a hard limit on what Parliament could achieve in America solely upon its own authority. Thus was America subordinate to Britain without being enslaved. Otis found evidence for this contention in the history of Britain itself, and specifically within the corpus of law and legal commentary relating to an integral component of the contemporary British Empire. “The laws, the proceedings of parliament, and the decisions of the judges, relating to Ireland,” he declared accordingly, “will reflect light on this subject, rendered intricate only by art.” What followed was a characteristically thorough analysis that favored a close reading of precedent over any broad assumption of power.

Before delving into the specifics thereof, however, a few points about the historic relationship between England/Britain and Ireland would first seem worthy of comment. First, and in all likelihood foremost, Ireland was indeed an independent political entity from the Kingdom of Great Britain at the time of the publication of Asserted and Proved in 1764. Indeed, there was no point in the history of England/Britain’s relationship with Ireland up to that point when this wasn’t the case. The Lordship of Ireland, created by Henry II (1133-1189) in 1171 with the nominal permission of the Papacy, was from its inception a distinct legal entity from the contemporary Kingdom of England. Henry and his heirs accordingly ruled as Lords of Ireland over a territory possessed of its own laws, customs, nobility, and legislature and were off-times forced to compete for practical influence over domestic affairs with both indigenous Gaelic Irish lords and transplanted English baronial families. Greater consolidation followed the proclamation of the Kingdom of Ireland in 1542 and a failed rebellion against Elizabethan rule in the late 1590s – notably resulting in the establishment of a highly Anglo-centric administration in Dublin – though the island continued to possess a distinct legal identity  well into the 18^th century. The Parliament of Ireland was perhaps the most potent symbol of this state of affairs, unrepresentative of the Irish population and detached from their will though it may have been.

Catholics, along with Protestant dissenters like Presbyterians, Baptists, and Methodists, were notably excluded from standing for election in the Kingdom of Ireland, and between 1728 and 1793 from voting for those who could stand. And while its members did possess sole formal authority over the levying of taxes upon the Irish people, numerous legal prohibitions were placed upon the autonomy of the Irish Parliament by both its own members and various English and British governments. Poynings' Law, for example, was approved by the former in 1494, to the effect of declaring that the Parliament of Ireland could not convene until its proposed legislation was approved by both the Privy Council and Lord Deputy of Ireland and the Privy Council and monarch of England. Granting that this restriction did not remove the singular right of the Irish Parliament to raise taxes, it most certainly limited the ability of the contemporary Irish government to practice the autonomy it legally possessed. The passage of the Dependency of Ireland on Great Britain Act (1719) by the Parliament of Great Britain carried this state of affairs further still by affirming in plain and unambiguous language that Westminster in fact possessed, “Full power and authority to make laws and statutes of sufficient validity to bind the Kingdom and people of Ireland [.]” While this statute also formally excluded any claims to an unlimited right of taxation, it nonetheless made it abundantly clear to all concerned in Britain and in Ireland that the latter was most certainly subservient to the former. That the Parliament of Ireland did not contest this fact doubtless lent it still further credence.  

As to Otis’ aforementioned desire to compare contemporary Ireland to America, therefore, the resemblance between the two was indeed substantial. As of the early 1760s, both of them formally acknowledged the British monarch as their sole and rightful Sovereign while maintaining separate domestic institutions from that of Britain proper. Both entities – or rather each of them, for British America of course contained over a dozen separate colonies – also granted the superiority of Parliament over their own local legislatures. Ireland could not and did not claim to countermand the edicts of Westminster, Otis affirmed, and neither did America. Indeed, their principle difference was more philosophical and moral than it was material or functional. Whereas Ireland had been conquered, America had been settled. This may now seem like something of a semantic distinction, but Otis argued at length in Asserted and Proved – via reference to numerous court decisions and legal commentaries – that it was anything but.

Having been brought into the orbit of the British Empire by force of arms, Otis believed that it was permissible by the commonly-understood rules of war for successive English and British governments to treat Ireland as though it were essentially the property of the reigning monarch. While this did not mean that Parliament was free to treat the Irish people in whatever way its members saw fit – “A conquered country has, upon submission and good behaviour, the same right to be free, under a conqueror, as the rest of his subjects [,]” Otis maintained – it was unquestionably the prerogative of said monarch to alter the government and/or laws of that island as they believed were necessary or desirable. The end result was something of a compromise. Ireland possessed a government, a parliament, justices, nobles, and laws of its own. Any of these could be altered or affected by the edicts of Westminster – in which this Irish people were not represented – but that body was at the same time incapable of levying taxes upon the citizens of Ireland directly. Thus, in practice, the Kingdom of Ireland existed as a subsidiary but legally distinct entity from Britain proper within a larger global empire. America, Otis maintained, was also both subsidiary to and legally distinct from Britain itself, and having been settled peacefully and independently would seem to have been entitled to at least the same degree of autonomy and justice as conquered Ireland. That this did not appear to be the case was accordingly the crux of Otis’ investigation. Indeed, it appeared to him, in spite of the authorities he cited from within British history and law in support of his claim, that America was increasingly worse-off than Ireland, particularly in light of the passage of the Sugar Act and the implications that it portended.

Adhering to the core conceit of the English Common Law tradition, Otis proceeded in Asserted and Proved to first seek out the precedents he believed could speak to the nature of the formal, legal relationship between England/Britain and Ireland. He cited several sources to that end, one of the most prominent being the aforementioned legal scholar Edward Coke’s seminal treatises, Institutes of the Lawes of England, printed in four parts between 1628 and 1644. As a practical digest of the major principles, cases, and statutes of contemporary English law, Institutes functioned as one of the primary authorities upon Common Law jurisprudence well into the 18^th century. Quoting from the fourth part of this series, page three hundred and forty-nine, Otis – via Coke – declared that, “Ireland being of itself a distinct dominion, and no part of the kingdom of England [...] was to have Parliaments holden there as in England.” Here, it appeared, in the words of one of the foremost legal authorities in English history, was a clear affirmation of the fundamental separateness of Ireland from England, to the point that the former was to possess a legislature of its own. Building upon the implications thereof, Otis next cited the third part of Institutes, page three hundred and fifty. “Sometimes,” Otis quoted Coke as writing, “the King of England called his Nobles of Ireland, to come to his parliament of England, &c. and by special words, the parliament of England may bind the subjects of Ireland [.]” Thus, Otis affirmed, yet further evidence of the distinctiveness of Ireland from England. Parliament could not simply pass laws for the Irish people – presumably including the laying of taxes – upon its own authority, but rather required the monarch in his capacity as King of Ireland to summon his lords there and proceed via their cooperation. This, of course, stood to reason. Westminster seated no Irish members prior to the Act of Union (1800). That the Crown and Parliament collectively acknowledged a need for the presence of the same upon the passage of certain measures thus appeared to confirm the validity of existing constitutional restrictions against governing unrepresented peoples.

This was not necessarily the end of the matter, Otis next admitted, though it was neither a wholly invalid point of fact. Since the publication of Coke’s Institutes in the middle of the 17^th century, certain events had indeed transpired to alter the nature of the relationship between the parliaments of England/Britain and Ireland. The aforementioned Dependency of Ireland on Great Britain Act – also known as the Declaratory Act, 1719 – was most certainly foremost among them, having clarified and asserted the ability of Westminster to make laws to bind the people of Ireland without the need to consult the government of that selfsame kingdom. In spite of how definitive this might sound, however, the circumstances of its passage seem to denote an aspiration after pride rather than power. Flowing out of a 1709 lawsuit between two cousins over the disposition of some property in County Kildare, the Declaratory Act was essentially intended to punish the Irish House of Lords for attempting to defy the authority of its British counterpart. When one of the plaintiffs in the relevant land suit appealed to the British Lords in their judicial capacity after the Irish Lords decided against them, the British Lords found in his favor and nullified the earlier judgment. The Irish Lords subsequently refused to acknowledge the invalidation of their finding and ordered the officers responsible for fulfilling the results of the suit imprisoned when they attempted to comply with the British ruling. In response to the controversy that resulted, the House of Commons at length determined to strip the Irish House of Lords of its judicial authority and affirm the right of the British Parliament to make law for the Kingdom of Ireland.

In light of these facts, it would indeed seem improper to characterize the Declaratory Act as anything other than a power grab. In response to what observers even then described as a trifling lawsuit, Parliament substantially increased the authority of both the House of Commons and the House of Lords over the government and people of Ireland. The assumption, however, was not absolute. Parliament did not take complete control of the government of the Kingdom of Ireland, a fact made plain by the continued existence of even a subsidiary Irish parliament. This accordingly begs the question of whether or not Westminster was in fact capable of doing reducing Ireland to an entirely unrepresented domain of the Crown. For his part, and based on the facts at hand, Otis concluded in Asserted and Proved that the Declaratory Act – in spite of its rather authoritative language – showed the limits of Westminster’s authority over a subsidiary government by failing to do exactly that. “This parliamentary power must have some bounds,” he wrote, referring to the statute in question,

Even as to Ireland, as well as the colonies who are admitted to be subordinate ab initio to Great Britain; not as conquered, but as emigrant subjects. If this act should be said to be a declaration not only of the general, but of the universal power of parliament, and that they may tax Ireland, I ask, Why it has never been done?

The point Otis raised was undeniably a cogent one. It would have been so much easier if Parliament had simply abolished its Irish counterpart and proceeded to levy whatever taxes it deemed expedient directly upon the Irish people. Indeed, it would have been easier still if an Irish Parliament had never been erected in the first place, thus alleviating any question as to whether Westminster’s authority was in any way limited upon that island. The fact that this did not take place – that conquered Ireland was granted a parliament whose authority Westminster was thereafter forced to contend with – was further more proof to Otis that, even in cases of subsidiary governments, the link between taxation and representation was well-attested in Britain’s Common Law tradition.

            Otis posited yet more proof of this principle in the text of Asserted and Proved by also drawing attention to the historical relationship between England and Wales. Like Ireland, he reminded his audience, Wales had been conquered through force of arms – specifically by Edward I (1239-1307) between 1277 and 1283 – and thereafter incorporated into England’s burgeoning feudal domain. Initially, through the promulgation of a document known as the Statute of Rhuddlan (1284), Wales was made a separate but subsidiary realm of the English monarch within whose jurisdiction a mixture of English Common Law and indigenous Welsh law was recognized and dispensed by a court situated at Caernarvon. This state of affairs remained in place until the reign of Henry VIII (1491-1547), under whose authority the Laws in Wales Acts (1535, 1542) were passed. Under these statutes – sought by Henry as a means of disarming certain local landowners – Wales was formally annexed by the Kingdom of England, divided into counties, and assigned representation in the English Parliament. In consequence, while the validity of Welsh law was no longer recognized and Wales could no longer consider itself even a subordinate realm of the English Crown, the Welsh people thereafter enjoyed equal status under English law and equal representation in the legislative process.

            As to how such a recounting of the legal and political status of Wales within the British Empire related to the equivalent status of either Ireland or America, Otis helpfully summed up the relevant implications. “A very strong argument arises from this authority, in favor of the unconquered plantations,” he wrote.

If since Wales was annexed to England, they have had a representation in parliament, as they have to this day; and if the parliament of England does not tax Ireland, can it be right that they should tax us, who have never been conquered, but came from England to colonize, and have always remained good subjects to this day?

Thus was Otis able to draw from English law and legal commentary a fairly definitive rejection of the recent passage of the Sugar Act. As the evidence he had compiled made clear, political subordination, representative government, and taxation were concepts that the Common Law and the British Constitution had come to define very narrowly. There were certainly such things as subordinate governments to Westminster within the framework of the British Empire. Ireland was undoubtedly one. Wales before its formal annexation had been another. America, Otis argued at length, was a third, though it was far less centralized than the others. Each of these realms was a subject of the Crown and bound by the laws of Parliament, yet all were nonetheless entitled to certain basic guarantees.

The supremacy of Parliament notwithstanding – a principle with which Otis did not argue – the people of Wales, Ireland, and America alike were, by the dictates and precedents of the British Constitution, possessed of the right to be taxed only by the acquiescence of themselves or their chosen delegates. The Welsh had been secured in this essential liberty by their incorporation into England proper and their subsequent election of representatives in Parliament. The Irish enjoyed much the same protection – albeit within a more contentious social and legal framework – through their possession of an indigenous parliament in Dublin. The Americans, however, were not so fortunate. They might have been, Otis argued, and most certainly should have been. The various colonies each possessed a legislature of its own, within which the responsibility for levying taxes upon the represented peoples was rightfully lodged. That Parliament failed to recognize this was most certainly an error on the part of its members, their affirmations to the contrary having no bearing upon the case at hand. “It may be said that these authorities will not serve the colonists,” Otis thus wrote,

Because the duties laid on them are by parliament. I acknowledge the difference of fact; but cannot see the great difference in equity, while the colonists are not represented in the house of commons: And therefore with all humble deference I apprehend, that ‘till the colonists are so represented, the spirit of all these authorities will argue strongly in their favor.

In attempting to adhere to a principle explicitly codified by the Bill of Rights – “That levying money for or to the use of the Crown by pretense of prerogative, without grant of Parliament […] is illegal” – the government responsible for the passage of the Sugar Act had evidently lost sight of its intended purpose.

The precept in question – proposed and approved in Parliament in 1689 – was not meant to grant authority for the passage of all taxes applicable across the width and breadth of the British Empire solely to Westminster. Rather, it was intended to protect the right of the British people to be taxed only by an authority over which they could reasonably exercise some degree of control. While previous government had evidently – and rightly – chosen to observe this principle in their dealing with both Wales and Ireland, the contemporary administration of George Grenville had not done so in its actions towards America. Beyond laying duties on certain goods as a means of regulating the economy of the larger British Empire – a responsibility Otis affirmed was the, “Just and equitable right of parliament […] when they think the good of the whole requires it” – Grenville and his ministers had sought to invade the traditional prerogative of the colonial assemblies by an edict of direct taxation. They had, in effect, reduced the people of America – the offspring of peaceable settlers – to something less than the progeny of conquered enemies. The British Constitution made no allowance for such actions, and the Common Law provided no examples of how it might be properly done. Otis therefore concluded that it should not be done, and if done should be corrected forthwith.