Friday, July 23, 2010

James Otis: Forgotten Founder

On the Laws of Nature and
Rebellion to Authority

When we think about the great Founding Fathers of the American Revolution, the obvious names that pop up on everyone's radar include George Washington, Thomas Jefferson, Benjamin Franklin, James Madison, etc., etc., etc. Rarely does the name James Otis ever show up. In fact, most Americans are probably unfamiliar with this very important and influential man and the brief role he played during the American Revolution.

From the onset of the rising conflict between Britain and its colonies, Otis was an important and passionate participant. And though Thomas Paine would eventually emerge as the Revolution's premiere writer thanks to Common Sense, James Otis was one of the original masters of the pen. His blockbuster piece of the time, The Rights of the British Colonies Asserted and Proved, served to help further the growing belief that the rights of the people were derived not from man but from God and nature itself. Otis writes:
Is not government founded on grace? No. Nor on force? No. Nor on compact? Nor property? Not altogether on either. Has it any solid foundation, any chief cornerstone but what accident, chance, or confusion may lay one moment and destroy the next? I think it has an everlasing foundation in the unchangeable will of GOD, the author of nature, whose laws never vary. The same omniscient, omnipotent, infinitely good and gracious Creator of the universe who has been pleased to make it necessary that what we call matter should gravitate for the celestial bodies to roll round their axes, dance their orbits, and perform their various revolutions in that beautiful order and concern which we all admire has made it equally necessary that from Adam and Eve to these degenerate days the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined as the dew of heaven and the soft distilling rain is collected by the all-enlivening heat of the sun. Government is therefore most evidently founded on the necessities of our nature. It is by no means an arbitrary thing depending merely on compact or human will for its existence.


The form of government is by nature and by right so far left to the individuals of each society that they may alter it from a simple democracy or government of all over all to any other form they please. Such alteration may and ought to be made by express compact. But how seldom this right has been asserted, history will abundantly show. For once that it has been fairly settled by compact, fraud, force, or accident have determined it an hundred times. As the people have gained upon tyrants, these have been obliged to relax only till a fairer opportunity has put it in their power to encroach again.

But if every prince since Nimrod had been a tyrant, it would not prove a right to tyrannize. There can be no prescription old enough to supersede the law of nature and the grant of GOD Almight, who has given to all men a natural right to be free, and they have it ordinarily in their power to make themselves so if they please.
And though Otis clearly appeals to the laws of nature justifying resistance to tyrants, taxation, etc., he also acknowledges the sovereignty of the British king and the superiority of the "mother country's" laws:
The sum of my argument is: that civil government is of God; that the administrators of it were originally the whole people; that they might have devolved it on whom they pleased; that this devolution is fiduciary, for the good of the whole; that by the British constitution this devolution is on the King, Lords and Commons, the supreme, sacred and uncontrollable legislative power not only in the realm but through the dominions; that by the abdication, the original compact was broken to pieces; that by the Revolution it was renewed and more firmly established, and the rights and liberties of the subject in all parts of the dominions more fully explained and confirmed; that in consequence of this establishment and the acts of succession and union, His Majesty GEORGE III is rightful King and sovereign, and, with his Parliament, the supreme legislative of Great Britain, France, and Ireland, and the dominions thereto belonging; that this constitution is the most free one and by far the best now existing on earth; that by this constitution every man in the dominions is a free man; that no parts of His Majesty's dominions can be taxed without their consent; that every part has a right to be represented in the supreme or some subordinate legislature; that the refusal of this would seem to be a contradiction in practice to the theory of the constritution; that the colonies are subordinate dominions and are now in such a state as to make it best for the good of the whole that they should not only be continued in the enjoyment of subordinate legislation but be also represented in some proportion to their number and estates in the grand legislature of the nation; that this would firmly unite all parts of the British empire in the greater peace and prosperity, and render it invulnerable and perpetual.
Now, perhaps Otis was simply closing out his pamphlet by offering a brief, brown-nosing compliment to Britain and the King. Perhaps Otis didn't want to cause too many ripples in the pool. Or perhaps Otis is laying some of the early groundwork that would later be used to justify rebellion against kings. In Otis' mind, the British king is the sovereign and rightful executive of government so long as he/she accepts the fact (established by the laws of nature themselves) that all men are inherently free. The king's authority is the result of the people's willingness to concede power into his/her hands and not the result of a heavenly mandate. Otis justifies this belief by appealing to Hobbes' Social Contract theory in which the governors and the governed seek to find an agreeable equilibrium. As a result, Otis' ideas were based more on natural law than on any belief in Divine Right Kingship. In consequence, Otis was able to avoid many of the Romans 13/submit to authority in the name of God arguments, which served to make his argument even more appealing.

And though Otis' views on natural religion and rebellion to authority are hardly unique (their origins go WAAAAAAY back) it is important that we recognize the fact that his works were among the earliest sparks that helped to ignite a virtual lightning storm in the American colonies (appropriate analogy, since it was a lightning strike that killed Otis in 1783). Otis' contributions may have been relatively small when juxtaposed with those of the "key founders" but they are, nonetheless, extremely noteworthy.

***Up next: James Otis on the abolition of slavery***


Tom Van Dyke said...

Brad, I was curious about your linking Hobbes and Otis, esp since Hobbes was so unpopular in the Founding era.

Otis wrote in 1764:

"Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God."

He goes on, as you correctly note, against divine right of kings and with sovereignty resting with the people. This all seems rather consistent with natural law and/or Reformed theology's "resistance theory."

Brad Hart said...

OOh...I think I misread that passage. That's the one I was using to reference Otis' affinity for Hobbes. I simply misread it.

Thanks for pointing it out. Not sure how I missed it.

Brad Hart said...

With that said, does anyone else think that Otis' views on the origin of kings fit with Hobbes' "Social Contract" theory?

Just curious.

Tom Van Dyke said...

That's cool. You're on a good riff. The major figures of the Revolution have taken a back seat to those of the Framing era.

In fact, I'm rather struck how Oris explicitly decouples his view from the Enlightenment, and even the political solution of 1688.

James Wilson echoes this years later in his lectures on law, when he differentiates the American view of rights from the British "contract" view of 1688, Blackstone and Burke---even the Magna Carta.

King of Ireland said...

"With that said, does anyone else think that Otis' views on the origin of kings fit with Hobbes' "Social Contract" theory'

I am not that educated on Hobbes. I think a post about would be good though. I think it goes back to Dr. Hall's post on Madison and whether it was Locke or Witherspoon that influenced his view of man. Or possibly both?

I would say that the concept of a social contract was part of Christian thought long before the Enlightenment.

Great post by the way. Very well done. I think it was one of your best.

King of Ireland said...

"James Wilson echoes this years later in his lectures on law, when he differentiates the American view of rights from the British "contract" view of 1688, Blackstone and Burke---even the Magna Carta."

Can you elaborate on this Tom? I read a good bit of the link but am not sure what you are getting at. Sounds like an important point though.

Tom Van Dyke said...

Sure, Brad, & thx for hitting the Wilson for yourself. It doesn't distill into a quotable quote, so I'll grab some key grafs:

But even if a part was to be given up, does it follow that all must be surrendered? Man, says Mr. Burke, cannot enjoy the rights of an uncivil and of a civil state together. By an uncivil contradistinguished from a civil state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone.


And must we surrender to government the whole of those absolute rights? But we are to surrender them only -- in trust: -- another brat of dishonest parentage is now attempted to be imposed upon us: but for what purpose? Has government provided for us a superintending court of equity to compel a faithful performance of the trust? If it had; why should we part with the legal title to our rights?


He makes no explicit declaration which of the two, in his opinion, they are; but since he traces them to magna charta and the fundamental laws of England; since he calls them �civil liberties;� and since he says expressly, that their establishment is human; we have reason to think, that he viewed them as coming under the latter part of his description -- as civil privileges, provided by society, in lieu of the natural liberties given up by individuals. Considered in this view, there is no material difference between the doctrine of Sir William Blackstone, and that delivered by Mr. Burke.

If this view be a just view of things, the consequence, undeniable and unavoidable, is, that, under civil government, individuals have �given up� or �surrendered� their rights, to which they were entitled by nature and by nature�s law; and have received, in lieu of them, those �civil privileges, which society has engaged to provide.�

If this view be a just view of things, then the consequence, undeniable and unavoidable, is, that, under civil government, the right of individuals to their private property, to their personal liberty, to their health, to their reputation, and to their life, flow from a human establishment, and can be traced to no higher source. The connexion between man and his natural rights is intercepted by the institution of civil society.

If this view be a just view of things, then, under civil society, man is not only made for, but made by the government: he is nothing but what the society frames: he can claim nothing but what the society provides. His natural state and his natural rights are withdrawn altogether from notice: �It is the civil social man,� says Mr. Burke,10 �and no other, whom I have in my contemplation.�

TVD: This is "social contract," and the British understanding of rights and government according to Burke and thereby Blackstone, and according to the first quote, and Locke as Otis understood him as well, "compact." We trade our natural rights and receive "civil privileges" in return.

Tom Van Dyke said...

[Part Deux]

So, after some illustrations [the binding of future generations to Parliament, itself a damned interesting question in 2010], Wilson answers his own question, "Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution?"---a "social contract" with government---with a "no":

I have now no hesitation whether we should or should not subscribe the creed of Mr. Burke: that creed, which is contradictory to itself, cannot, in every part, be sound and orthodox.

Thx for askin', Brad. It's something that stuck in the braincells that I've been meaning to get back to. I don't recall there being much out there about it, but it does put America on a natural law footing that even Britain isn't [or perhaps any other nation], and perhaps the key reason [besides ego] that James Wilson wanted to become America's Blackstone.

If folks find this interesting, these particular passages would make a great group inquiry.

Tom Van Dyke said...

Oooops, sorry, Brad. It was Joe who hit the Wilson. But I agree it might be key. We have a major Founder disagreeing with Burke and Blackstone [and Otis with Locke], who unlike Hobbes, the Founders all liked very much.

King of Ireland said...

Are you sure that Locke thought that we give up natural rights for social priviledges? This is very interesting and I agree a good topic for group inquiry.

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