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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

        

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

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