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

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

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

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

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

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

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

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

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

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

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

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

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

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

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