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The Constitutional Sanity of James Otis: Resistance Leader and Loyal Subject

Published online by Cambridge University Press:  05 August 2009

Richard A. Samuelson
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This article argues that we can best understand the Massachusetts patriot James Otis as a practical political thinker whose writings reacted to changing circumstances and to other writers. He began his career arguing that the British Constitution and natural law both mandated that Parliament not tax unrepresented colonists, but when Blackstone published his opinion that Parliament had a natural and constitutional right to compel the submission of the colonists, Otis became convinced that, however valid his argument had been in theory, it would never convince Parliamentarians. Ultimately he engaged the problem of imperial structure, trying to collapse the political distance between the imperial periphery and the imperial center to overcome the constitutional distance that threatened to separate them for good.

Type
Research Article
Information
The Review of Politics , Volume 61 , Issue 3 , Summer 1999 , pp. 493 - 524
Copyright
Copyright © University of Notre Dame 1999

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References

1 Brennan, Ellen E., “James Otis, Recreant and Patriot,“ New England Quarterly 12 (1939): 691.CrossRefGoogle Scholar

2 Bailyn wrote, “It was a strange argument, comprehensible only as an effort to apply seventeenth-century assumptions to eighteenth-century problems“ (Bailyn, Bernard, Ideological Origins of the American Revolutbn [Cambridge, MA: Belknap, 1967], p. 179Google Scholar). See also Bailyn's introductions to Otis's two pamphlets in Pamphlets of the American Revolution 1750–1776 (Cambridge, MA: Belknap, 1965), pp. 409–417 and 546–52.Google Scholar

3 Ferguson, James R., “Reason in Madness: the Political Thought of James Otis,“ William and Maty Quarterly, 3rd ser., 36 (1979)Google Scholar. Ferguson finds that Otis wrote “with the ambivalence of a man who was committed to traditional assumptions but [was] responding to new circumstances that challenged those assumptions” (p. 211). The best biographical study of Otis is still Shipton's, Clifford K. in Biographical Sketches of Those Who Attended Harvard College: In the Classes 1741–1745 (Boston: Massachusetts Historical Society, 1960), pp. 247–87Google Scholar. Waters, John J. Jr, places Otis in the larger context of his family in The Otis Family in Provincial and Revolutionary Massachusetts (Chapel Hill: University of North Carolina Press, 1968)Google Scholar. For a good psychological profile, see Shaw, Peter, American Patriots and the Rituals of the Revolution (Cambridge, MA: Harvard University Press, 1981), chap. 4, “James Otis,“ pp. 77–108Google Scholar. Edmund, S. and Morgan, Helen M. weave an account of Otis the politician into the narrative of their The Stamp Act Crisis: Prologue to Rroolution (Chapel Hill: University of North Carolina Press, 1953).Google Scholar

4 Lerner, Ralph, “The Constitution of the Thinking Revolutionary,“ in Beyond Confederation: Origins of the Constitution of American National Identity, ed. Beeman, Richard et al. (Chapel Hill: University of North Carolina Press, 1987), pp. 38–68.Google Scholar

5 Ferguson holds that Otis believed that “there could be no social order without some absolute authority within every commonwealth to make final determinations that were binding on the whole,“ and that Otis deserted natural rights because he feared it “could be misinterpreted as a challenge to the power of Parliament“ (“Reason in Madness,“ pp. 198, 203).

6 The early Otis fits Reid's, John Philip model: “We must not think of American whigs as philosophers or as political scientists. We must think of them for what they were, constitutional advocates. They ⃛ were advocates in a constitutional dispute,“ Constitutional History of the American Revolution, 4 vols. (Madison, WI: University of Wisconsin Press, 1986–1993), 3:53Google Scholar. See also by the same author, In Defiance of the Law: The Standing Army Controversy, the Two Constitutions, and the Coming of the American Revolution (Chapel Hill: University of North Carolina Press, 1981)Google Scholar. Legal historians have resumed the famous debate of the 1920s between Charles Mcllwain and Robert Livingston Schuyler about the merits of the Americans' constitutional case against the British. Mcllwain's, The American Revolution: A Constitutional Interpretation (New York: MacMillan, 1924)Google Scholar argued that Americans had the better constitutional argument. Schuyler responded with Parliament and the British Empire; Some Constitutional Controversies Concerning Imperial Legislative Jurisdiction (New York: Columbia University Press, 1929)Google Scholar arguing that the British case was overwhelming, and providing the accepted isdom on the issue for nearly 50 years. In 1976, Barbara Black reopened this debate with her challenge Schuyler's interpretation, “The Constitution of the Empire: The Case for the Colonists,“ University of Pennsylvania Law Review 124 (1975–1976): 1157–1211Google Scholar. Greene, Jack P. gives a now dated but still useful overview of the recent constitutional literature in his essay, “From the Perspective of the Law: Context and Legitimacy in the Origins of the American Revolution,“ South Atlantic Quarterly 85 (1986): 56–77.Google Scholar

7 Colley, Linda, Britons: Forging the Nation 1707–1837 (New Haven: Yale University Press, 1992), p. 135Google Scholar. Clark, J. C.D. adds that the “evolving British (or English) national identity in the 1750s and 1760s had not compelled Englishmen to define Americans as ‘the other’; nor did Americans so define Britons” (The Language of Liberty 1660–1732: Political Discourse and Social Dynamics in the AngloAmerican World [Cambridge: Cambridge University Press, 1994], p. 61).Google Scholar

8 Murrin, John M., “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Colonial America: Essays in Politics and Social Development, 3rd ed., ed. Katz, Stanley N. and Murrin, John M. (New York: Alfred A. Knopf, 1983), p. 541Google Scholar. For a good summary of the scholarly literature on the British identity of Americans, see Greene, Jack P., Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture (Chapel Hill: University of North Carolina Press, 1988).Google Scholar

9 Otis's speech to Boston town meeting, Boston Gazette (Boston: Edes and Gill), 21 03 1763Google Scholar. Colley points out that “liberty was the hallmark of Englishness” (Britons, p. 111). Otis wrote in 1762, “The British constitution of government as now established in his Majesty's person and family, is the wisest and best in the world. ⃛ This is the summit, the ne plus ultra of human glory and felicity” (Vindication of the Conduct of the House of the House of Representatives of the Province of Massachusetts Bay: More Particularly in the Last Session of the General Assembly [Boston: Edes and Gill, 1762], p. 20)Google Scholar. For Otis's pamphlets I consulted Edition, Charles Mullett's, “Some Political Writings of James Otis,” University of Missouri Studies, 4:2,3 (07–10, 1929): 229–432Google Scholar.I have retained the original pagination.

10 Greene, Jack P., “Search for Identity: An Interpretation of the Meaning of Selected Patterns of Social Response in Eighteenth-Century America,” Journal of Social History 3 (1970): 205–206CrossRefGoogle Scholar. Bailyn, Bernard and Clive, John make a similar point in their essay, “England's Cultural Provinces: Scotland and America,” William and Mary Quarterly, 3rd ser., 11 (1954): 200–213.Google Scholar

11 Otis, James, The Rights of the British Colonies Asserted and Proved (Boston: Edes and Gill, 1764)Google Scholar. In the section “Of the Natural Rights of the Colonists,” Otis says, “The sentiments on this subject have therefore been chiefly drawn from the purer fountains of one or two of our English writers, particularly from Mr. Locke” (p. 26). Prior to 1765, Otis used Locke unreservedly. In his 1762 Vindication of the Conduct of the House, Otis blanketed three pages with citations of Locke (pp.17–20). In a somewhat unorthodox reading of the doctrines, Otis merged natural rights and natural law. For more on the subtleties of natural law and natural rights, see Tuck, Richard, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979)CrossRefGoogle Scholar. Hutson, James details the evolution of the modern idea of right in England and America in his “The Emergence of the Modern Concept of Right in America: The Contribution of Michel Villey,” American Journal of Jurisprudence 39 (1994): 185–224CrossRefGoogle Scholar. Although he emphasizes common law over natural rights, Reid also notes that “if we look at the arguments of individual writers rather than official petitions and resolutions, natural law is the source most clearly identified as an authority” (Constitutional History, 1:87Google Scholar)

12 Rights, p. 37.

13 Ibid., p. 30.

14 Ibid., p. 47. Otis's invocation of God as the author of natural law should remind us, as Shipton points out, that upholding God's law against the claims of an earthly government was not exactly a novelty in the mouth of a son of Plymouth (Shipton, , Biographical Sketches, p. 253Google Scholar). Although, as Tuck notes, the idea of natural rights, as compared with natural law, was relatively new to Otis's day, Otis did not think it was. To him, the idea that no government may rightly violate God's law, and that one should challenge it when it does so, was part of a line of reasoning that went back to Moses. In A Vindication of the British Colonies (London: J. Almon, 1769)Google Scholar, Otis referred to Filmer's ideas as “Horrid blasphemy!” and added, “Upon such principles Pharaoh was a virtuous Prince” (p. 14).

15 Rights, p. 41. Otis here reiterated an argument he had made in the Writs of Assistance case of 1761. Then, he argued, “As to Acts of Parliament, an Act against the Constitution is void; an Act against natural equity is void. ⃛ The executive courts must pass such Acts into disuse” (“John Adams' contemporaneous notes of the writs of assistance hearing in February 1761,” reprinted in Smith, M. H., The Writs of Assistance Case [Berkeley: University ofCalifornia Press, 1978], p. 544,Google Scholar). Otis took this idea from Coke's famous “dicta” in Dr. Bonham's case (Coke, Edward, The Reports of Sir Edward Coke, 4 vols. [Dublin: J. Moore, 1793], 8:234)Google Scholar. Earlier in the century, legal historians such as S. E. Thome argued that Coke made only a limited assertion of judicial review (“The Constitution and theCourts: AReexaminationof the Famous Case of Dr. Bonham,” in The Constitution Reconsidered, ed. Reed, Conyers [New York: Columbia University Press, 1938], esp. p. 23Google Scholar). Ferguson, echoing Bailyn, leaned on that literature (his most recent citation was from 1965) to criticize Otis, asserting that “it is now widely agreed that the causes were articulating a standard of strict statutory construction in private law contexts, and not a doctrine of constitutional theory” (“Reason in Madness,” p. 202). (Bailyn makes the same assertion in Pamphlets, p. 412.) Black argues that Coke had a more expansive understanding of the judicial role (“Constitution of the Empire,” p. 1209). Thomas C. Grey also argues that judicial enforcement of fundamental law was a standard doctrine (“Origins of the Unwritten Constitution: Fundamental law in American Revolutionary Thught,” Stanford Law Review 30 [1978]: 850Google Scholar). On fundamental law and judicial review, see also Hamburger, Philip A., “Revolution and Judicial Review: Chief Justice Holt's Opinion in City of London v. Wood,” Columbia Law Review 94 (1994): 1091–2153.CrossRefGoogle Scholar

16 Bailyn quoted this passage to show what he thought was Otis's intellectual confusion (Pamphlets, p. 415). Ferguson, however, notes that “the denial of Parliament's right to tax the colonists was in no sense a denial of its power to do so” (“Reason in Madness,” p. 201).

17 Pitt, in Reid, , Constitutional History, 2:45Google Scholar. Reid makes this point at length. He also quotes Isaac Barre in the same debate: “The legislature of this like every other country is supreme. It cannot be controuled but it ought to controul itself and in that sense you have no right to lay an internal tax on N[orth] A[merica]” (2:43).

18 Grey, , “Origins of the Unwritten Constitution,” p. 872Google Scholar. Grey continues, “Binding constitutions need not be judicially enforceable.”

19 Ferguson holds that Otis's ideas were “informed not only by Lockean notions of natural law but also by the received doctrine of sovereignty.⃛ What is most significant about this initial theoretical construct is that it explained and justified the absolute authority of Parliament, the locus of sovereign power in the British empire,” and he locates Otis's intellectual problems in the “tension between advanced ideas and traditional assumptions” (“Reason in Madness,” pp. 198, 195). Similarly Bailyn described the “complicated anachronism of Otis's thought” (Ideological Origins, p. 177, n. 19), and said that essence of the Rights was “the uneasy denial of a Lockean state of nature and of a Lockean social contract combined with the reiterated endorsement of the idea of a governmental contract and fiduciary government” (Pamphlets, p. 417). Their problem may be that the ideological approach to Otis is circular. It presumes to understand the differences between the ideological compositions of the seventeenth and eighteenth centuries, and then concludes that Otis's thought was muddled because it contained elements of both.

20 Vindication of the British Colonies, p. 4. Otis first published this pamphlet in Boston in March 1765. In his Brief Remarks on the Defence of the Halifax Libel on the British-American-Colonies (Boston: Edes and Gill, 05 1765)Google Scholar, written a few months after the Vindication, Otis wrote, “The law of parliament is, that the parliament cannot err” (p. 25).

21 Blackstone, William, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769 (Chicago: University of Chicago Press, 1979), p. 91.Google Scholar

22 Ibid.

23 Ibid., p. 12. The citation is correct in spirit but not completely so in wording. Bailyn conjectures that Otis had to work from his notes on Blackstone because the new legal treatise was in such demand. Pamphlets, p. 738, n. 6.

24 Rights, p. 47.

25 Ibid., p. 60.

26 Coke's Institutes in Grey, , “Origins of the Unwritten Constitution,” p. 852.Google Scholar

27 Commentaries, p. 119. Blackstone's use of this doctrine in a book on the cutting edge of constitutional thought of his day runs contrary to Bailyn and Ferguson's contention that Otis's concession to absolute authority to Parliament was anachronistic.

28 Coke, , Reports, 4:8Google Scholar. Otis cites Calvin's case in Rights, p. 44.

29 Reid, , Constitutional History, 3:67.Google Scholar

30 Tuck shows that from the time of Grotius at least, natural rights argument cut both ways, favoring either submission or resistance to unjust acts by the powers that be (Natural Rights Theories, passim, esp. ch. 3, Grotius, pp. 58–82). Ferguson's contention that “the explanation for this [Otis's] retreat [from natural law] can be found in the radical tendencies of the natural law argument itself” is therefore insufficient because it incorrectly assumes a certain teleology in natural rights theory (“Reason in Madness,” p. 203). Moreover, after reading Blackstone, Otis still maintained that Americans deserved their natural rights, even if the British constitution no longer guaranteed them. In the Vindication, he held that “life, liberty, and property, are, by the laws of nature as well as by the common law, secured to the inhabitants of South-Britain, and constitute their primary civil or political rights” (p. 11) and that “the origins of those rights [of Britons] is in the law of nature and its author” (p. 17). If natural rights scared Otis as much as Ferguson claims, he would not have mentioned them at all, and would have retreated to an assertion of the presumably less radical common law rights of Britons, rather than deserting constitutional advocacy altogether.

31 “John Hampden,” Boston Gazette, 27 January 1766. Hampden was Otis.

32 Martin Howard may have helped Otis reach that conclusion. Responding to the Rights, he wrote that fresh on the heels of their victory in the Seven Years' War the British “will not patiently be dictated to by those whom they have ever considered as dependent upon them” (Howard, , in Pamphlets, p. 533Google Scholar).

33 Black, e.g., points out that “Coke certainly spoke to Englishmen, but by the eighteenth century these could be found on both sides of the Atlantic; it is time to consider anew the possibility that the Englishmen who heard him were the Englishmen in America” (“Constitution of the Empire,” p. 1175).

34 Greene, Jack P., Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States 1607–1788 (New York: W. W. Norton, 1986), pp. 67–68Google Scholar. In general, this study of Otis resurrects some of the issues raised by the “imperial school” of the 1920s. Andrew C. McLaughlin had Otis, among others, in mind when he wrote that “the discussions in the ten or twelve years before independence were over the problem of imperial organization” (“The Background of American Federalism,” American Political Science Review [1918]: 215). Adams, Randolph G. argued that the central problem of the era was “to make the political machinery of the empire catch up to the facts of the empire” (The Political Ideas of the American Revolution: Britannic-American Contributions to the Problem of Imperial Organization 1765–1776, 3rd ed. [New York: Barnes and Noble, 1958], p. 42)Google Scholar. Andrews, Charles M. argued that “Great Britain, having acquired colonies by accident rather than intention, seemed wholly unable to prepare for their growing up by any flexible method of management and control” (The Colonial Background of the American Revolutbn [New Haven: Yale University Press, 1955], p. 66).Google Scholar

35 Vindication of the British Colonies, p. 4.

36 “Americanus,” Pennsylvania Journal and Weekly Advertiser, 29 August 1765.

37 Jenyns, Soame, The Objections to the Taxation of Our American Colonies, by the Legislature of Great Britain, Briefly Consider'd (London: J. Wilkie, 1765).Google Scholar

38 Ibid., p. 14.

39 Otis, , Considerations on Behalf of the Colonists: In a Letter to a Noble Lord (London: J. Almon, 1765), pp. 31–32.Google Scholar Emphasis added.

40 Burke argued that even “the Sultan gets obedience as he can. He governs with a loose reign, that he may govern at all” (Burke, , Conciliation With the Colonies, ed. Bradley, Corneilius Beach [Boston: Allyn and Bacon, 1894], p. 23Google Scholar). In 1766 Otis wrote, “Is it possible you should flatter yourself that 4 or 5 millions of people, well settled in good Climates [will]⃛ tamely give up all their now ancient laws, usages and customs, with all their natural rights, and civil and religious privileges into the bargain?” (“John Hampden,” Boston Gazette, 27 January 1766).

41 Otis, Brief Remarks on the Defence of the Halifax Libel. This was Otis's reply to Howard's, A Defence of the Letter from a Gentleman at Halifax (Newport, RI: 1765)Google Scholar, which itself was Howard's reply to Otis's Vindication of the British Colonies.

42 “John Hampden” Boston Gazette, 20 January 1766. The idea for a Stamp Act congress was hatched while Otis and his father were on the legal circuit in Plymouth and stayed with Otis's sister Mercy and her husband James Warren (Bell, Hugh Foster, “James Otis of Massachusetts: The First Forty Years, 1725–1765” [PH.D. diss., Cornell University, 1970], 397–98Google Scholar)

43 Reid, John Philip, “In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution”, New York University Law Review(1974): 1053.Google Scholar

44 Bushman, Richard, King and People in Provincial Massachusetts (Chapel Hill: University of North Carolina Press, 1992), pp. 44–45Google Scholar. In general, see his section, “The Defiance of Authority”, pp. 36–46. On the legitimacy of such resistance, see also Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765–1776, esp. chaps. 1 and 2, and “Popular Uprisings and Civil Authority in Eighteenth-Century America”, William and Mary Quarterly, 3rd. ser., 27 (1970): 3–35CrossRefGoogle Scholar, and the first part of Gilje, Paul, The Road to Mobocracy: Popular Disorder in New York City, 1763–1834 (Chapel Hill: University of North Carolina Press, 1987).Google Scholar

45 John Dickinson's early career runs parallel to Otis's. When the Stamp Act passed, he argued it was unconstitutional because “it is inseparable essential to a free Constitution of Government, that all internal Taxes be levied upon the People with their consent” (“Resolutions Adopted by the Assembly of Pennsylvania Relative to the Stamp Act”, in The Writings of John Dickinson, ed. Ford, Paul L. [Philadelphia: Historical Society of Pennsylvania, 1895], pp. 173–74Google Scholar). After the Stamp Act Congress, at which Dickinson and Otis had become friendly, Dickinson wrote to William Pitt arguing only that the Stamp Act threatened to alienate the American colonists from the mother country, not that it violated the colonists' rights (Dickinson to Pitt, William, 21 December 1765, in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764–1766, ed. Morgan, Edmund S. [Chapel Hill: University of North Carolina Press, 1959], pp. 118–22)Google Scholar. By the time he wrote the Farmer's Letters, Dickinson turned away from Otis's argument, and again argued that Parliament could not legitimately tax the colonies (“Farmer”, in Writings of John Dickinson, p. 323).

46 Knorr, Klaus E. Provides an overview of the blueprints for the empire in British Colonial Theories 1570–1850 (Toronto: University of Toronto Press, 1944)Google Scholar. See esp. chap. 3, “Colonial Theories: 1660–1776,” pp. 63–125. Koebner, Richard, Empire (Cambridge: University Press, 1961)Google Scholar, suggests that “in all probability they [Otis and Bernard] discussed together details of the propositions which they prepared. Sometimes, in their final writings, they seem to refer implicitly to their exchange” (pp. 131–32). Koebner also points out that it was only after 1763 that men on both sides of the Atlantic began to think of the trans-Atlantic “British Empire” as single entity (p. 86).

47 Bernard, Francis, Select Letters on the Trade and Government of America (London: T. Payne, 1774), p. 67Google Scholar. In general, see Koebner's, section on Bernard, and Otis, (Empire, pp. 130–49)Google Scholar. Significantly, former Massachusetts Governor Thomas Pownall began formulating plans to reform the empire at the same time (The Administration of the Colonies [London: J. Dodsley, 1764])Google Scholar. Otis addressed Pownall in The Rights.

48 Bernard, , Select Letters, p. 75.Google Scholar

49 Ibid., p. 79. In 1762 Otis expounded the exact opposite: “There may be at some times a necessity of conceding to measures there [Great Britain], which bear hard upon liberty; which measures ought not to be drawn into precedent here, because there is not, nor can be such necessity for them here” (Boston Gazette, 4 January 1762, reprinted as Appendix M, in Smith, , Writs of Assistance, p. 564Google Scholar). For an argument that by the 1760s all parliamentary statutes applied to British dominions, see Flaherty's, Martin S. “The Empire Strikes Back: Annesley v. Sherlock and the Triumph of Imperial Parliamentary Supremacy,” Columbia Law Review 87 (1987): 593–622.CrossRefGoogle Scholar

50 This comment begins Otis's section on “Colonies in General,” Rights, p. 24. Moreover, as John Adams pointed out a decade later in his Novanglus essays, “Colonization is casus omissus at common law. There is no such title known in that law” (The Works of John Adams, ed. Adams, Charles Francis [Boston: Little and Brown, 1856], 4:121Google Scholar).

51 Virgil, , Aeneid, trans. Lewis, C. Day (London: Hogarth, 1969), 11: 321–22, p. 242. Otis quoted the Latin.Google Scholar

52 Rights, p. 37.

53 Ibid., p. 25.

54 Ibid., p. 65.

55 By “complex polity” I mean what a later generation would call a federal regime—a government of a large territory composed of many levels of government. Otis had not yet thought through the full implications of his scheme. He did not notice that under his plan Parliament would have had a dual role: as the legislature of the empire and as the legislature of Great Britain. In other words, he only saw two of the three constitutions (the imperial constitution and the provincial constitutions, but not the constitution of the central state) about which Greene writes (Peripheries and Center, pp. 67–68).

56 In general, this discussion of Otis buttresses David Lovejoy's argument about the causes of the American Revolution in his essay, “Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764–1776,” William and Mary Quarterly, 3rd ser., 16 (1959): 459–84.CrossRefGoogle Scholar

57 At times, however, he granted to Parliament full power over the empire, and pleaded that “the colonies only claim a particular exemption as to taxes” (“John Hampden,” Boston Gazette, 13 January 1766). This argument probably had much to do with political calculations. Otis hoped that Parliament would accede to minimal demands from the colonists.

58 Noble Lord, p. 22. Otis regarded himself part of enlightened debate on the nature and place of colonies in an empire, and went out of his way to criticize European authorities when he thought them misguided. Paul M. Spurlin points out that Otis criticized Montesquieu on trade (Montesquieu in America 1760–1800 [University, LA: Louisiana State University Press, 1940], p. 121Google Scholar). In Noble Lord Otis commented, “Neither the refinements of Montesquieu, nor the imitations of the servile Frenchified half thinking mortals, who are so fond of quoting him, to prove, that it is a law of Europe, to confine the trade and manufactures to the mother state⃛ will pass with me for any evidence of the rectitude of this custom and procedure” (pp. 22–23). Otis bestowed lavish praise on some of Montesquieu's other ideas. He applauded Montesquieu's criticism of slavery. See Hartz, Louis, “Otis and Anti-Slavery Doctrine,” New England Quarterly 12 (1939): 745–47.CrossRefGoogle Scholar

59 “John Hampden,” Boston Gazette, 9 December 1765. For emphasis he listed the commodities the colonists could ship only to Great Britain: “Sugar, Molasses, Tobacco, Ginger, Cotton-Wool, Indigo, Fustic, and all other dying Wool, Tar, Pitch, Turpentine, Hemp, Masts, Yards, Bowsprits, Copper Ore, Beaver-Skins, and other Furs, Rice, &c: Excepting that rice and sugars may now under certain limitations and restrictions, be carried directly to some foreign markets.”

60 “John Hampden,” Boston Gazette, 30 December 1765. By “proper restrictions,” Otis meant that Parliament could limit the American colonists' trade in the same way that it restricted the trade of other Britons. If Britain closed French ports to her subjects in London, they would be closed to her subjects in America as well. Trade would be uniformly free within the empire, and uniformly restricted (or open as the case may have been) without.

61 Even Brief Remarks, generally considered Otis's most craven submission to Parliament, quoted Vindication of the British Colonies's call for Americans in Parliament: “an equal representation of the whole state is, at least in theory, of the essence of a perfect parliament, or supreme legislature” (Brief Remarks, p. 23. The passage is in Vindication of the British Colonies, p. 4). And he asked “whether and how long'tis reasonable a continent of this extent, numbers and importance, shall be taxed, without being allowed a representation in fact, as they now have in law, or virtually as some express it, in the house of commons” (Brief Remarks, pp. 24–25).

62 Noble Lord, p. 40.

63 Ibid.

64 Ibid., p. 14.

65 Ibid., pp. 41–42. Otis never was willing to accept token representation. As far back as the Rights, he spoke of representation “in some proportion to their numbers” (Rights, p. 65).

66 Noble Lord, p. 41.

67 Black, , “Constitution of the Empire,” pp. 1194–98Google Scholar. See also Reid, Constitutional History. Thomas Jefferson made the same argument in his 1774 pamphlet, Summary View of the Rights of British America, as did James Wilson in his Considerations on the Nature and Extent of the Legislative Authority of the British Parliament of the same year.

68 Black, , “Constitution of the Empire,” p. 1209.Google Scholar

69 Recall that in Noble Lord Otis referred to Scotland and Wales gaining representation in Parliament. Besides Otis, Joseph Galloway was the best known advocate of that solution. In the 1760s, he called for Americans in Parliament, and in the 1770s he called for an American Parliament on an equal plane with the British Parliament. See Galloway, Joseph to Franklin, Benjamin, 16–28 November 1765, The Papers of Benjamin Franklin, ed. Labree, Leonard W. et al. (New Haven: Yale University Press, 1959–), 12: 375–76Google Scholar, and Galloway, Joseph, A Candid Examination of the Mutual Claims of Great-Britain and the Colonies: with a Plan of Accommodation, on Constitutional Principles (New York: James Rivington, 1775)Google Scholar. The best summary of Galloway's thoughts on the imperial problem is still Boyd's, JulianAnglo-American Union: Joseph Galloway's Plans to Preserve the British Empire 1774–1788 (Philadelphia: University of Pennsylvania Press, 1941).Google Scholar

70 Significantly, Otis criticized the system of rotten boroughs. In Noble Lord, he commented, referring to Manchester, Birmingham, and Sheffield, “If those now so considerable places are not represented, they ought to be” (p. 6). The three schemes of empire discussed in this paper echo those about which Randolph Adams of colonial dependency (Bernard's plan), imperial federation (Otis's plan), and the commonwealth of nations (roughly what John Adams, Jefferson, and Wilson advocated). For a diagram, see Political Ideas, pp. 84–85 in the 1958 edition.

71 Otis tried to find a way out of the impasse that Richard Johnson describes in his article “Parliamentary Egotisms.” Johnson sees the imperial crisis as occurring along the fault line created by Americans who dreaded being taxed by men that they did not elect, and a Parliament that feared a resurgence of the prerogative power if the King developed the ability to generate revenue without its help (Journal of American History [1987]: 338–62).

72 Mcllwain, , American Revolution, p. 57.Google Scholar

73 Daniel Boorstin points out in The Mysterious Science of the Law: An Essay on Blackstone's Commentaries (Gloucester, MA: Peter Smith, 1973)Google Scholar, that Blackstone did not intend to erase the complexities at the heart of the British constitution, but, at least regarding the relations among the three constitutions, that is what he did when he absolutized sovereignty. For a brief discussion of this issue, see my “The Blackstonian Causes of the American Revolution,” Continuity: A Journal of History 22 (Spring 1998): 9–18.Google Scholar

74 Morgan reprints a good example of the arguments against an American representation in Parliament in Prologue, “The Objection to American Representation in Parliament” (from Pennsylvania Journal, 13 March 1766, pp. 88–92). This essay, published after Otis ceased to contribute to the debate, makes all the standard arguments with which Otis was no doubt familiar. Shipton notes that Otis continued to call for Americans in Parliament throughout the 1760s until he stopped functioning as a political leader (Shipton, , Biographical Sketches, p. 273Google Scholar).

75 Adams, John to Tudor, William, 29 March 1817, Works, 10: 247–48.Google Scholar

76 Butterfield, L. H., ed., Diary and Autobiography of John Adams (Cambridge, MA: Belknap, 1962), 1: 271.Google Scholar

77 In that sense, all schemes of imperial reform were equally unfeasible. None of them ever had enough support to go into effect. Galloway, who kept chewing on the problem of imperial reform long after Otis had quit the field, came up with more creative solutions than did Otis, such as his plan for an American Parliament. His recipes for reform, however, remained equally far from a plan any of the parties to the dispute would accept.

78 This phrase comes from Swegart, Kathryn Griffin, “The Man Who Sparked the Revolution,” Yankee, vol. 57, p. 58.Google Scholar