“Then and there the child Independence was born"

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The constitutional views which Otis first expounded in the writs of assistance case were given more elaborate formulation in a forceful political tract, “A Vindication of the Conduct of the House of Representatives,” which he published in 1762. Therein he enunciated the Whig view that all men are naturally equal, and that kings are made to serve the people, not people the ends of kings.

It would be gratifying to report that the man who had made a political career out of his opposition to the writs was in the forefront of the Revolution when the fighting actually got under way. Regrettably, he was not. Quick-tempered and tense, increasingly eccentric and even abusive, Otis simply was not cast in the heroic mold. Whether from self-interest, fear, expediency, irresponsibility, or family friction (his wife was a high Tory and a shrew), or from a combination of all five, Otis now followed a vacillating course that branded him a recreant to his own principles, loathed by his foes, deserted by his followers.

It all started with what looked suspiciously like a deal. In 1764 Governor Bernard appointed Otis Senior chief justice of the Court of Common Pleas and judge of probate in Barnstable County, in that same year the son issued his “Rights of the British Colonies Asserted and Proved,” the most inlluential American pamphlet published prior to John Dickinson’s “Letters from a Farmer in Pennsylvania.” Written in opposition to the Sugar Act, Otis’ tract took the position that Parliament had no right to tax the colonies and that taxation was “absolutely irreconcilable” with the rights of the colonists as British subjects—indeed, as human beings. Nevertheless, it gave comfort to the Court party by affirming the subordination of the colonies to Great Britain and the right of Parliament to legislate for them in matters other than taxation. Hailed by the Whigs in England, the pamphlet elicited a grudging compliment from Lord Mansfield, who quickly pounced on Otis’ concession of the supremacy of the Crown. When someone said that Otis was mad, Mansfield rejoiced that in all popular assemblies “madness is catching.” The evidence that the younger Otis’ more conciliatory tone was the quid pro quo for his father’s appointment is at best circumstantial, but informed people felt that the connection was obvious.

Otis pursued his irresolute, even self-contradictory course during the Stamp Act controversy. In his “Vindication of the British Colonies” he reversed his earlier position: Parliament did have the authority to impose taxes, he said, though he questioned whether the taxes imposed were fair. In two subsequent tracts he again shifted his ground. Arguing against the writs of assistance, he had decried laws enacted “by a foreign legislature, without our consent.” Now he even accepted the theory of “virtual representation”—the fiction that the colonies were virtually represented in Parliament, in the sense that the interests of all Englishmen were theoretically represented by the whole body of Parliament—though propertyless subjects could not vote, though many Members represented “rotten boroughs,” and though many English cities had no Member at all. “Representation,” Otis conceded, “is now no longer a matter of right but of indulgence only.” But in the second tract he swung completely around again, denied the right of taxation without representation, and demanded actual representation in Parliament.

Considering his erratic and equivocal wanderings, it is little wonder that when Otis ran again for the House he was attacked in a bit of doggerel appearing in the Boston Evening Post and attributed to a customs official not noted for his sobriety:

So Jemmy rail’d at upper folks while Jemmy’s Dad was out, But Jemmy’s Dad has now a place, so Jemmy’s turn’d about.… And Jemmy is a silly dog, and Jemmy is a tool, And Jemmy is a stupid cur, and Jemmy is a fool.…

The attack outraged the voters’ sense of decency and “Jemmy” was elected to the House by a small majority. When he had thought himself ruined, Otis ruefully admitted, “the song of a drunkard saved me.”

Sent as a Massachusetts delegate to the Stamp Act Congress in New York in 1765, Otis had the satisfaction of seeing his constitutional doctrine of no taxation without representation embodied in the Resolves adopted by that body. But the radical leaders refused to incorporate his demand for actual representation of the colonies in the House of Commons. Most of them were wary of a trap, for a grant of token representation to the colonies could not have checked the anticolonial course of the majority in Parliament.