Patriots

First Chapter

Chapter 1 Otis
1761-62

John Adams, a twenty-five-year-old lawyer from the country, looked around Boston's Town House and was dazzled by its splendor. Adams had never been to London, but he was sure that nothing in the House of Commons could be more imposing than the sight of five judges in scarlet robes and luminous white wigs, seated in front of a marble fireplace. On the wall were portraits of two former British kings, Charles II and James II, which had been sent from London years before. They had been stored in an attic until a recently installed governor of Massachusetts, Francis Bernard, had discovered them and had them cleaned and mounted in magnificent gold frames. Adams was aware that both kings were autocrats and he suspected that giving them such a place of honor showed Bernard's political bias. But he thought them beautiful, worthy of Rubens or Vandyke.

Adams had come on this overcast morning in February 1761 to see the climax to a political drama that had been unfolding for months. Normally, the day's proceedings would have been routine: a new king had recently taken the throne in England, and a document called the writ of assistance had to be approved once again by the colony's Superior Court. But the writ was in fact a general search warrant, and it represented a serious economic threat around Boston Harbor. When ships sailed past the islands in the channel and came to anchor at one of Boston's long wooden wharves, they were often smuggling illegal goods along with their legitimate cargo. Molasses was especially popular, since it could be shipped legally only from British ports. Some sixty distillers around Massachusetts turned the molasses into millions of gallons of rum each year, and the traders who supplied them bought a better quality at French and Dutch ports in the West Indies and avoided the British taxes. Over the past twenty years, Bostonians had suffered economic depressions, and they were worried now that London's attempt to enforce the customs law might set off more hard times. That would affect not only the merchants but also the men who built the ships and sailed them, the distillers and shopkeepers, the artisans who supplied silver buckles and candlesticks, even the town's hundreds of teenage apprentices in their leather aprons.

The persistent war between England and the French and their Indian allies had provided an economic boom for a few profiteers, but the peace that now seemed assured might bring inflation and greater debt. Boston's wealthiest merchants enjoyed a cushion against a depression; five hundred of the sixteen thousand residents owned nearly fifty percent of the town's assets. But one out of three adult men had no property or even a regular job, and they hung about the wharves taking whatever work they found or signing on as sailors. Some were forced to leave the capital altogether for one of the smaller communities -- Salem, Gloucester, Marble-head.

British law already gave the crown's tax collectors permission to search a ship while it lay at anchor in the bay, although few had ever been zealous about making the effort. Some of those appointed were Londoners who never bothered to come to America. Others could be bribed. Britain spent eight thousand pounds each year on salaries for the customs service and collected two thousand pounds in taxes. But the writs that were to be reauthorized were more menacing because they allowed officials to break into a man's warehouse or even his home to find contraband. Disruptions during the war with the French had prevented the writs from being widely used, but now, with Britain moving to enforce the law, merchants in Boston and Salem had responded by challenging the writs' legality and had hired two prominent lawyers to argue the case before the Massachusetts Bay Colony's highest court.

This public aspect of the dispute was what had drawn Adams to the Town House. But, like most observers, he knew there were also personal resentments that could affect the case's outcome. At the center was Thomas Hutchinson. Despite his lack of training as a lawyer, Hutchinson had been appointed by Governor Bernard three months earlier to replace the chief justice who had died. For thirty years, Massachusetts lawyers had been struggling to win respectability for their calling, and many were disgusted that their profession's highest honor had gone to a man who was reading elementary law texts at night to prepare for court. John Adams was a self-conscious young man, desperately ambitious, and he had come to the capital from the town of Braintree to make his reputation. He thought he understood why Hutchinson had been named to the high court. The previous chief justice had expressed doubts that the writs were legal. Hutchinson was known to support them. But the significance of his appointment went far beyond that.

John Adams came from an honest and hard-working but not particularly distinguished family, and he was contemptuous of the idea that a man's place in society should be determined by his lineage. And in Boston, few men represented entrenched privilege more clearly than Thomas Hutchinson. The Hutchinsons had been successful businessmen for generations, and Thomas had been brought up to be a member of Boston's ruling class, although he had to contend with problems within the family. His father suffered from nervous disorders that kept him shut up in his house for weeks and from chronic insomnia, and he had lost two favorite sons and a daughter to smallpox and consumption.

By the time Thomas Hutchinson entered Harvard College, two months before his twelfth birthday, his character was already formed. His one lapse -- he had used a Greek trot to translate a Latin lesson -- had caused his tutor to remark, "A non te expectare," I did not expect it of you. Thomas would remember that rebuke for the rest of his life. He loved history best and wept at the account of Charles I's beheading.

At college, Thomas began his business career by trading several hundred pounds of fish his father had given him. By graduation, he had built that capital into nearly five hundred pounds sterling. When he married, at twenty-three, Thomas had become an imposing young man, six feet tall. His seventeen-year-old bride was the daughter of a man whose family had been the Hutchinsons' business partners for four generations. Though Thomas was normally aloof, it was a good marriage. He would remark that the intimacy he found with Peggy Hutchinson was proof that he had a soul.

Hutchinson turned naturally to public service and in 1737, at the age of twenty-six, was elected to the Massachusetts House of Representatives, ignoring his father, who warned him, "Depend on it, if you serve your country faithfully, you will be reproached and reviled for doing it." More than Thomas cared to recognize, he had inherited the spirit of his great-great-grandmother Anne Hutchinson, who had been banished to Rhode Island in 1637 as a religious zealot. He might be temperate and rational in his religion, but in a political cause he could be stubborn to the point of foolhardiness. Hutchinson used his mastery of economics to defend Boston's aristocrats against challenges from a growing party of workers and shopkeepers. When Boston went through periods of inflation, Hutchinson antagonized much of the town by advocating hard-money policies, and in 1749 he had led a move to base the colony's currency on silver. The economic contractions that followed turned his name into a curse among the town's working people. When his house caught fire, crowds gathered, shouting, "Let it burn!"

Hutchinson remained within a close circle of family and prosperous friends. He considered it contemptible to seek a wider popularity and described the multitude as "foreign seamen, servants, Negroes and other persons of mean and vile condition." When his conservative fiscal policies cost him his seat in the House, the governor had named him to the Council, the more aristocratic upper body. Hutchinson's career was destined to continue at that higher level. He built a summer house on a hundred acres in Milton, eight miles from Boston, and visitors from abroad assured him they had never seen a finer view than the one from his hilltop.

In 1754, Peggy Hutchinson died at the end of her twelfth pregnancy. Hutchinson had always believed that religion -- like sound money -- was essential to a well-ordered society, but his faith was no consolation to him now. He buried his wife and moved to Milton with his four children and his new daughter, another Peggy, who had survived.

When Hutchinson returned to public life, he served first as an aide to the royal governor, then as his lieutenant. His ambition revived, and he fought successfully to preside over the Council. He was also a judge of probate, a justice of common pleas and governor of Castle William, the royal fortress in Boston Harbor. His hobby was collecting documents, letters and journals, and he planned to publish his version of the history of the Massachusetts Bay Colony.

In Boston's many taverns, men had not forgiven Hutchinson for his consistent support of the rich and powerful and were troubled by the way he was consolidating his authority. They called him "Summa Potestatis," the supreme power, or simply "Summa." Now he had added the position of chief justice to his collection.

Hutchinson's appointment had annoyed John Adams, but it was far more disturbing to a thirty-five-year-old lawyer named James Otis. When the chief justice died in September, Otis had called on Thomas Hutchinson to ask his help in getting an appointment to the court for his father, the speaker of the Massachusetts House of Representatives. A previous governor had promised Speaker Otis a place on the Superior Court, and the younger Otis wanted Hutchinson to use his influence with Governor Bernard to secure it.

Otis had gone to the Hutchinson mansion in Boston's North End, one of the town's most beautiful houses. Most Bostonians knew that the Hutchinson family looked down on the Otises, but James Otis, who was quick-tempered and haughty, had put aside his pride to make the call. Hutchinson, approaching fifty, was slender and fair, with the assurance of privilege. Otis was plump, with a round face and a short neck, but his eyes were keen and he exuded energy. Although he had studied law, the one book he had published was a study of Latin poetry.

Otis had put his appeal diffidently. If Mr. Hutchinson himself had any interest in serving on the high court, he would not say another word about his father. Hutchinson swore later that he had told Otis candidly that he had considered the appointment but that he wasn't sure he would accept if Bernard offered it to him. Otis had left convinced that Hutchinson had said he would turn it down.

Soon after, Otis had called directly on Governor Bernard. The town of Boston was almost an island, linked to the mainland by a narrow road called Boston Neck, and as Otis was riding his horse toward the governor's mansion he saw Thomas Hutchinson coming the other way in a carriage, apparently returning from his own audience with the governor. Then there were other disturbing portents about the appointment. Some of Boston's established merchants were openly questioning whether Speaker Otis was qualified to sit on the Superior Court. Over the years, he had done many favors for the colony's conservative governors, but his career had begun fifteen years earlier, in rougher times, when election officials sometimes reached into the hat that doubled as a ballot box and threw out all of the opposition votes.

Speaker Otis' first bill in the House had set a bounty on Indian scalps -- one hundred English pounds for males twelve years or older, fifty pounds for women. And although the Otises were an established New England family, Speaker Otis had worked as a shoemaker in his youth. Since two thirds of the members of the Massachusetts House listed "farmer" as their primary occupation, that was no disgrace, and Otis had gone on to become a prosperous lawyer. But he had always regretted his lack of a classical education and had made sure that James went to Harvard College and then to study law under Jeremiah Gridley, the colony's finest legal scholar.

Memories among Boston's aristocracy were long and unforgiving. Conservative merchants were arguing that Speaker Otis was backed by the same men they had been fighting for years -- Boston's retailers, innkeepers, others of the lower classes. Thomas Hutchinson had told friends that Otis had become speaker of the House only because he had done "little low dirty things" that no reputable person would stoop to doing.

Two months passed after James Otis' appeal to Hutchinson until, in mid-November, Governor Bernard told Hutchinson that he wanted him as chief justice. Hutchinson warned him that he might be courting trouble by disappointing the Otises, and he added that around town James Otis was threatening violence if his father was not chosen. But Bernard offered Hutchinson the job and added that whatever his answer, he did not intend to appoint Speaker Otis.

Hutchinson accepted. For years, the king's ministers in London had passed him over for the governorship, and he had served under three governors from England. It seemed unlikely that he would ever hold the highest title, although he had several consolations beyond his judgeships. As lieutenant governor, Hutchinson was already the colony's deputy executive. As president of the Council, he was its ranking legislator. Now he would hold the highest judicial post.

When he heard about the appointment, James Otis was enraged. Aside from the insult to his father, Otis believed that Hutchinson would hold two titles too many. Montesquieu's The Spirit of Laws had been published a dozen years earlier, and Otis had been impressed by its argument for separating the three branches of government. But now, because Otis had tried to get the post for his father, his criticism of Hutchinson's expanding power could be dismissed as coming from a disgruntled loser. And Hutchinson's friends did soon accuse Otis of making wild threats against the colony's government. They said he had vowed to set the province in flames, though he himself might perish in the fire. Everyone knew that Otis was proud of his Latin scholarship, and his antagonists clinched their charge by quoting a line from Virgil that Otis was supposed to be repeating: "Flectere si nequeo superos, Acheronta movebo." (If heaven I cannot bend, then hell I'll stir.) Otis' political allies called the allegation a lie. They said no one would become frenzied over such a trivial setback. But in Boston's small world, Otis was well known. John Adams, who was eager to learn from other men's success, had been studying Otis carefully and admired his agile mind. But he had also watched Otis' quick temper cause him to stutter and had seen Otis' muscles twitch even when he was sitting still. Everything about Otis' tense brilliance made the reports of his threats entirely plausible.

James Otis' energy and his unpredictable moods had been apparent even when he was growing up. Pressed into playing the violin for friends who wanted to dance, he had thrown it down and run off to the garden, shouting, "So fiddled Orpheus and danced the brutes!" He had entered Harvard in 1739, at fourteen, young but not as remarkable as Hutchinson's going before he was twelve. He had frittered away his first two years but then began coming home on vacations to Barnstable and locking himself up with his books. He spent seven years at Harvard, earned the traditional master's degree and was in no hurry to start working. He spent a year and a half reading the classics at home before he began to study law.

James Otis' apprenticeship with Jeremiah Gridley seemed to harness his mercurial temperament, and at last he gave his father reason to be proud, a welcome development at a time when the Otises' neighbors accused James's younger brother of getting their black nanny pregnant. Gridley also had a classical bent, and the young man's years with him were congenial except for the assignments in Sir Edward Coke's impenetrable volumes. After his apprenticeship, Otis set up practice briefly in Plymouth, but he tired of small-town life and moved to Boston. Soon he was collecting the largest fees in the province. But money didn't drive James Otis, and he often didn't bother to hide his indifference.

Each year on November 5, gangs from North and South Boston paraded through the streets in a ceremony called Pope's Day. It was an American version of England's Guy Fawkes Day, commemorating the Gunpowder Plot of 1605, when a band of Catholics had tried to blow up King James I and the Parliament with him. In New England, the occasion had become the excuse for a brawl; an almanac summed it up, "Powder plot is not forgot. 'Twill be observed by many a sot." Each gang carried a large effigy of the Pope, and the two parades collided in an explosion of rocks and fists. After one such melee, Otis was hired by men charged with breaking windows and doing other damage. In court, he defended the tradition and argued that a few youths had simply gone on a spree with no malice and doing little harm. Otis won an acquittal and refused a fee.

At the age of thirty, he made a love match with Ruth Cunningham, a reserved, pretty woman entirely committed to the conservative principles of her merchant father. She brought with her a handsome dowry, which Otis immediately put in trust as an inheritance for their children.

By the time Otis went to Hutchinson on behalf of his father, he held a well-paid post as the king's advocate general in the Vice-Admiralty Court at Boston. But he refused to argue for the crown's customs officers in the writs-of-assistance case, and when the merchants asked for his help in opposing them Otis responded enthusiastically. "In such a cause," he said, "I despise all fees." Before Hutchinson joined the Superior Court late in December 1760, James Otis resigned his royal commission to prepare for the legal battle of his life, and John Adams had come to court to witness the result.

Jeremiah Gridley, Otis' tutor in the law, was acting as the king's attorney, and he opened the case with the crown's arguments. He admitted that the writs had provoked widespread antagonism by infringing on the common rights of Englishmen, but he defended the principle of a search warrant. How could a state protect itself against foreign enemies or subversives at home? Which was more important, protecting the liberty of an individual or collecting the taxes efficiently? Gathering public money must take precedence.

Many in the audience were not convinced, remembering the case of a man named Ware, who had acquired a writ from a customs official who casually endorsed it over to him. When a justice ordered a constable to bring Ware to court for profane swearing on the Sabbath, Ware had listened to the charge and then asked the judge if he was finished. "Yes," said the judge. "Very well, then," said Ware, "I will show you a little of my power. I command you to permit me to search your house for uncustomed goods." Ware tore up the judge's house from attic to cellar. When he finished, he started all over again at the constable's house.

Gridley returned to his seat, and Otis' co-counsel, Oxenbridge Thacher, spoke. Thacher had briefly studied divinity, because he was ambitious and clergymen ranked at the top of Massachusetts society. When his voice proved too weak to reach beyond the pulpit, he had turned to law, launching his career by taking the divorce cases his fellow lawyers shunned. But Thacher had begun to distrust Hutchinson's growing power, and now his voice was echoing through the colony. Hutchinson had mocked his new attachment to the workingmen's faction by remarking that Thacher had not been born a plebeian but seemed determined to die one. Thacher's opposition to the writs had dismayed the conservatives more than anything James Otis had said, since they couldn't discredit him as a vengeful troublemaker.

In his opening statement, Thacher argued that simply because the writs were being freely issued in London was no reason for Massachusetts courts to do the same. He denounced the fact that one writ could be used over and over as a wanton exercise of power. His argument might have carried the day. The writs were unpopular, and not every judge took the same pride Hutchinson did in flouting public opinion. But then, in wig and black gown, James Otis stood up to speak, and something profound changed in America.

To John Adams, Otis rose in the hall like a flame of fire. He seemed to overflow with dates, events, legal precedents, classical allusions. His erudition swept everything before him. Although he treated Gridley with great respect, Otis took on each of his arguments and demolished it. Adams thought that Gridley-who was merely doing his duty for the crown-seemed to be exulting in his pupil's triumph.

What was Otis' argument? He claimed to be doing nothing more than applying a lesson from the textbooks. Coke's compilation of English law in the previous century had often challenged the king's power and called upon judges to nullify any act that went against an Englishman's common rights, or against reason, or was repugnant or impossible to enforce. Otis took Coke as his authority and made a strong case that any law was void if it violated England's constitution. But a newcomer to the law like Hutchinson, who had not pored over Coke's commentaries, accepted Gridley's version of more recent history. For Hutchinson, Britain's Glorious Revolution of 1688 had not only deposed James II but also left Parliament the empire's supreme authority. The British constitution was now only and whatever Parliament said it was.

But Otis soared beyond that argument. Every man lived in a state of nature, he said. Every man was his own sovereign, subject to laws engraved on his heart and revealed to him by his Maker. No other creature on earth could legitimately challenge a man's right to his life, his liberty and his property. That principle, that unalterable law, took precedence-here Otis was answering Gridley directly-even over the survival of the state. Then Otis issued a guarded warning to the new king: The writs of assistance represented the sort of destructive and arbitrary use of power that had cost one king his head and another his throne.

Otis turned to the subject of English liberty, particularly freedom at home. "A man's house is his castle," he said, and if a man behaves quietly there he must be as well protected as a prince. As John Adams listened and made notes, he found his attitude toward England changing. Otis' argument was making him see the mother country as not only powerful but also haughty. This writs ease could be merely the beginning. Britain's politicians might be intending to impose complete control over the colones' finances and polities. From now on, every action from Parliament and the king's ministers had to be weighed carefully to see what motive lay behind it.

Otis had spoken for more than four hours. When he finished, John Adams wanted to rush out and take up arms against the writs, and he was sure every man in the packed hall was ready to join him. The court adjourned with Thomas Hutchinson sensing that his fellow judges might have been stampeded along with Otis' audience. During their conference, some judges began talking of compromise. One reported that in England writs were now being issued only in specific eases and after very detailed information about possible smuggling. Hutchinson was concerned that any tightening of the procedures might lead to an informant's name being made public, which would stop men from coming forward to report smugglers. No one else had heard of that change in the law, and the judge remembered only that he had read about it in London Magazine. Hutchinson used the uncertainty to buy time and agreed to write to England for clarification. Receiving an answer could take months. Meanwhile, the court held off its ruling until the following year.

Throughout Massachusetts, however, it was clear that James Otis had won his case. When he appeared at Boston's next Town Meeting, he was greeted with loud applause. Three months later, the town voted overwhelmingly to send him to the House of Representatives. It dismayed Hutchinson that Bostonians seemed to agree that Otis had acted out of a sincere concern for liberty rather than from spite, and around Massachusetts other conservatives sensed that a dangerous new adversary was arising. John Adams was dining with prominent lawyers in Worcester when he heard one of the king's loyalists, Timothy Ruggles, say, "Out of this election will arise a damned faction, which will shake this province to its foundation."

James Otis' opponents weren't the only ones who worried about sending such an explosive man to a deliberative body. As Otis took his seat in the House after the election of May 1761, a friend who would be sitting nearby approached him with a warning: "Mr. Otis, you have great abilities but are too warm, too impetuous. Your opponents, though they cannot meet you in argument, will get the advantage by interrupting you and putting you in a passion."

Otis said, "Well, if you see me growing warm, give me a hint and I'll command myself."

A dispute soon arose and Otis murmured that he intended to speak. Remember, his friend said, don't get irritated. Otis took the floor and was crushing the opposition when Timothy Ruggles interrupted him. Otis flushed and intensified his attack. From behind him, his friend pulled lightly on his coat. Otis turned with a scowl but checked himself and softened his tone.

He had barely resumed when another man, Choate of Ipswich, interrupted. Once more, Otis began to flare up. The friend pulled on his coat a little harder. This time, Otis turned around and said, "Let me alone! Do you take me for a schoolboy?" And he proceeded to devastate the conservative opposition.

House members learned that when Otis was out of control even past loyalties couldn't restrain him. On an occasion when he and Oxenbridge Thacher took opposite sides, the younger Otis became so abusive that Thacher had to ask the elder Otis, the House speaker, for protection. In court, Otis went out of his way to attack the judges who would be hearing his cases. Finally, Hutchinson's brother-in-law, Judge Peter Oliver, complained to John Adams that Otis had slandered the entire judiciary. Adams had his own reservations about Otis, but he pointed out that he had many fine talents.

"If Bedlamism is a talent," said Oliver, "he has that in perfection."

The early 1760s were supplying a wealth of controversies to keep Otis agitated. He blocked the conservatives who wanted to punish counterfeiting with the death penalty, and he succeeded in ousting William Bollan from his job as the Massachusetts agent in England, the man paid to look after the colony's interests. Otis admitted that he didn't much care who held the post; he simply hated to see Hutchinson win at anything. In a light mood, he proposed a law charging with high treason any man who believed in "certain imaginary beings called devils." His motive wasn't religious. At home, Otis did not hold family prayers, and, in a time when gentlemen were expected to attend church, he had never joined a congregation.

By the time the job of London agent went to a draper named Jasper Mauduit, Otis was as determined to thwart Governor Bernard as Hutchinson. He was overheard describing Bernard as a bigot and a plantation governor interested only in filling his own pockets. When those insults appeared anonymously in print, the governor knew who was responsible. Bernard had redeemed himself with Otis' father by letting him disburse all the patronage in Barnstable County, and Speaker Otis hadn't hesitated to pick off the two best judgeships for himself. That peace offering had also appeased James Otis long enough for him to back a grant of land that Bernard coveted. But no sooner was one hatchet buried than Otis was brandishing another. Thomas Hutchinson concluded that whenever Otis was annoyed by anyone, anywhere in the colony, he would take his revenge on Hutchinson.

The strain of his temperament told on Otis. During his second session in the House, he angrily resigned his seat and then asked for it back the next day. But even at his most erratic, he had a sure touch for language that touched Boston's heart, and he fought the conservatives effectively by contrasting himself with Hutchinson and his circle.

"I know it is the maxim of some," Otis wrote in an antigovernment weekly, the Boston Gazette, "that the common people in this town live too well; however...I do not think they live half well enough."

Carpenters and bakers, along with the men who ran shops and taverns, had watched their incomes decline until their work was paying less than in their grandfathers' day. Meanwhile, the colony's benefits seemed to be flowing to the small circle of the lieutenant governor and his friends. At the beginning of 1762 Otis wrote, "My dear friends, fellow citizens and countrymen, I am forced to get my living by the labors of my hand and the sweat of my brow, as most of you are." He pledged to go on defying those men who owed "their grandeur and honors to grinding the faces of the poor and other arts of ill-gotten gain and power."

Thomas Hutchinson considered suing for libel.

By now, Otis found reasons to oppose almost any action by the governor or his lieutenant. Despite England's victory over France, Frenchmen in Newfoundland were continuing to threaten British fisheries. Governor Bernard intended to allocate a few hundred pounds to protect Britain's interests by sending an armed sloop up the coast. The conservative Council approved the project. But Otis and his allies saw a peril in bypassing the House on a revenue measure, and he drew up a protest. If the House gave up its fight to raise revenue, he wrote, Massachusetts might as well be ruled by the king of France instead of George III. If either king could levy taxes without a House vote, the two kings would be equally arbitrary.

When Otis read his protest on the House floor, a conservative delegate objected to his reference to Britain's new monarch and shouted, "Treason! Treason!"

Otis defended his language, and it passed the House easily. But the governor also found the allusion to the king improper and sent the message back to the House to have the sentences expunged. Otis inserted a few diplomatic words expressing all due reverence for the king's sacred person but kept to his original point.

When the protest was back on the House floor, the man who had shouted "Treason!" listened to Otis' compromises and cried, "Erase them! Erase them!" A majority of the House agreed, and the provocative language was dropped. James Otis learned that his countrymen were not ready to attack the power of the British crown.

Copyright © 1988 by A. J. Langguth