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The Ordeal Of Thomas Hutchinson
BETWEEN KING AND COUNTRY
April 1974 | Volume 25, Issue 3
The day after Sewall died, “several gentlemen” (Bernard said they were “the best men in the government”) told Hutchinson they were proposing him for the vacancy. He was pleasantly surprised, but he immediately expressed what he called “a diffidence of my own abilities,” for he was no lawyer and he was not at all certain “that it would be advisable for me to undertake so great a trust.” He repeated these same doubts “of my abilities to give the country satisfaction” when young James Otis called on him to seek his support for the elder Otis’ appointment; and while he did not promise the Otises his help and said merely that the whole question was new to him and that he would have to think about it, he went out of his way to praise the elder Otis and to register his own lack of enthusiasm for the appointment. His passivity persisted even though most of the judiciary assured him of their support. When, after a month, Bernard finally broached the subject to him, explaining that “the major voices seemed to be in my favor,” Hutchinson replied that while recognizing the importance of the position, he knew “the peculiar disadvantages I should be under” in following so distinguished a jurist as Sewall. And when some weeks later Bernard told him that he had definitely decided to appoint him and indicated that even if he refused he would not turn to Otis, Hutchinson “still expressed my doubts of the expedience of it. …”
Bernard was well aware of the problems: years later he would apologize to Lord Mansfield for having appointed a chief justice “not… bred to the law”; but he knew that the essential qualifications were as much political and intellectual as strictly legal, and he could count on Hutchinson’s diligence in perfecting his knowledge of the law. So Hutchinson, still concerned about his lack of technical qualifications and having refused to solicit actively for the appointment but always eager for advancement, prestige, and a major public role, accepted. His appointment was announced on November 13, and on December 30, 1760, his commission was issued.
The general transformation of Hutchinson’s reputation proceeded gradually in the months and years that followed his appointment to the chief justiceship, but John Adams and James Otis, Jr., who would ultimately shape opinion most powerfully, reached immediate conclusions. The i y6o’s were years in which the Massachusetts bar reached a high point of professionalization; its practitioners were exceptionally conscious of their craft and proud of their skills—and none more so than the twenty-five-year-old apprentice John Adams. Adams never forgot the outrage he felt at this elevation of a layman to the chief justiceship, so thwarting, insulting, and humiliating to his excruciatingly sensitive self-esteem. An appointment so unmerited, so perverse, and so unjust to those like himself who were sacrificing their lives to the law could only be the result of dangerous secret forces whose power would no doubt otherwise be felt and that would otherwise block the aspirations of powerless but honest and able new men.
Otis helped to substantiate these fears and to publicize this affront to the dignity of “old practitioners at the bar.” Like Adams, Otis too registered shock that the new chief justice was “bred a merchant,” but that was not the main burden of his response. Nor was it simply the rage of wounded pride at his family’s humiliation, though that explains his pronouncement, when Hutchinson’s name was first discussed, that neither he nor his father would ever give up their claim to the appointment, and his public threat “with oaths,” as Bernard later testified, that ” ‘if his father was not appointed judge, he would set the whole province in a flame, though he perished in the attempt’ ” —a remark that circulated widely through the province. Otis was an extraordinarily perceptive intellectual, and while he tore and dove and raged in half-lunatic indignation, he was capable, as perhaps no one else of the time, of seeing the deep issues and of relating them to practical and personal politics.