The Ordeal Of Thomas Hutchinson

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The issue, Otis insisted, was not merely the engrossing of political offices but the relationship among these offices. Plural officeholding was nothing new—it was as common in New England as it was in old England—nor was the doctrine of the separation of powers in its modern form yet felt to impose limits on officeholding. But Otis, moving ahead of the leading ideas of his time, thinking in his curious and impressive way in terms of circularities, logical contradictions, and the inner flows of forces within institutions, tore into Hutchinson not merely for greedily accumulating a plurality of “lucrative places” but for occupying positions that were incompatible with each other. Hutchinson, Otis pointed out, was a dominant figure in the executive by virtue of being lieutenant governor, in the legislature as a councillor (“I have long thought it… a great grievance that the chief justice should have a seat in the Council and consequently so great a share of influence in making those very laws he is appointed to execute upon the lives and property of the people”), and in the judiciary as chief justice. “Mixed monarchy,” Otis agreed, was, as everyone knew, the most perfect form of government, but —what everyone did not know—fundamental to it was the separation of legislative and executive powers, and without this, free government would dissolve. Montesquieu was right: “when the legislative and executive powers are united in the same person, or in the same body of magistrates (or nearly so) there can be no liberty because (just and great) apprehensions may arise lest the same monarch or senate (or junto) should enact tyrannical laws to execute them in a tyrannical manner.” Within a few months of Hutchinson’s appointment to the high bench Otis’ attacks, cast in these terms and publicized again and again, became a blistering indictment.

The case of the writs of assistance—to support customs officers in searching for contraband—came before the superior court almost as soon as Hutchinson took his seat on the bench. The episode not only served to fuse Adams’ resentment at unmerited professional advancement with Otis’ fear of monopolized power, but it brought all of this into conjunction with the hostilities of a significant part of the merchant community for whom strict enforcement of trade regulations was a novel threat.

Hutchinson was especially well informed on the problems of these general search warrants, and he was as much concerned to limit their use to the strict letter of the law as anyone in the colony. It had been he, in fact, in 1757, who had prevented the governor from issuing general warrants on his own authority, and as a result the power to grant these potentially dangerous instruments had been confined to the superior court acting as a court of exchequer. He knew of the warrants’ unquestioned legality in England and of their common use there, and he knew, too, that they had been issued before in Massachusetts without provoking public controversy.

But if the positive law was clear (and the doubts it raised were quickly settled by queries to England), the higher law of “natural equity” was not, and it was to this that Otis, who formally represented the merchant opposition, in the end directed his plea. It was the moral basis of the law, not the literal provisions, that primarily concerned him. “This writ,” he charged, in words that John Adams, an eager attendant at the trial, recorded on the spot, “is against the fundamental principles of law. The privilege of house. A man who is quiet is as secure in his house as a prince in his castle,” and no act of Parliament can contravene this privilege. “An act [of Parliament] against the constitution is void, an act against natural equity is void. … The executive courts must pass such acts into disuse”—precedents to the contrary notwithstanding, Adams later recalled him saying, for “ ALL PRECEDENTS ARE UNDER THE CONTROL OF THE PRINCIPLES OF THE LAW .”

The principles of law? Who was to say what they were? Yet it was Otis’ extravagant transjuridical claim that entered American awareness, not Hutchinson’s scrupulous regard for the law as it existed. Fifty-six years later John Adams—as romantic in old age as he had been in youth- caught the inner, quasi-mythological meaning of the event in his famous description of the scene: near the fire were seated five judges, with Lieutenant Governor Hutchinson at their head as chief justice, all in their new fresh robes of scarlet English cloth, in their broad bands, and immense judicial wigs [and against them James Otis,] a flame of fire! With the promptitude of classical allusions, a depth of research … a profusion of legal authorities, a prophetic glare of his eyes into futurity, and a rapid torrent of impetuous eloquence, he hurried away all before him. … Every man of an [immense] crowded audience appeared to me to go away, as I did, ready to take up arms against writs of assistance. … Then and there the child Independence was born.