Obligations and Provocations
Rittenhouse and Right to Rebel
A curious though mostly legally irrelevant observation in the Rittenhouse matter is that he shouldn’t have been there; a more legally relevant argument is that his presence — with a weapon — and his specific actions provoked the rioters.
There does seem to be a direct correlation to November 1765, when the Stamp Act was scheduled to go into effect. The question before most Bostonians concerned the rights of the people; the question for James Otis — leader of the Boston Bench and the Sons of Liberty, and occasional House Speaker — concerned the obligations of the people.
The thorny issue of natural rights that these Founding Fathers were working through is contained in the observation that if natural rights come from God, then not only may no government abrogate those rights, but if such a government does, then the people are obligated to rebel. An obligation is formed because such a rebellion is a defense of the will of God. Further, if the government fails to fulfill its basic functions, then the people are obligated to fulfill the functions of government. In 1765, that failure was most emblematic in the closure of the courts; for Rittenhouse, it’s the failure of the government to stop riots, vandalism, property damage, etc. The question, then, is not whether Rittenhouse had a right to be there, but an obligation. The further question is not whether other citizens had a right to be there with weapons, but rather why weren’t more citizens there?
To better understand how the Founders of America struggled with the practical application of rights and obligations, let’s pick up the action in colonial America. It’s October 1765. The Stamp Act goes into effect in a few weeks. Without Stamps, everything from newspapers to the courts cannot operate. The Stamp is, essentially, both an operating license and a tax.
The Boston House of Representatives was called into session on October 23, and the following day issued a lengthy reply to Massachusetts Royal Governor Bernard’s September speech, which requested the peaceful submission to Parliament, that read like a summary of Otis’s radical pamphlets, asserting “that there are certain original inherent rights belonging to the people, which the parliament itself cannot divest them of … among these is the right of representation in the same body which exercises the power of taxation.” The House repeated the theme throughout the letter, referencing repeatedly the “rights which are derived to all men from nature.” Near the end of the letter, the House refused to reimburse those whose property mobs destroyed, claiming that they “cannot conceive why it should be called an act of justice” for public money to pay for the private damages. Sam Adams was one of the primary drafters, and his work exhibited all the hallmarks of a thorough education in radical thought. On October 29, Sam Adams led the House in issuing their own “Sett of Resolves ready cutt & dried” that were replete with invocations of rights and consent and that were far more more incendiary than those of the New York congress.
On the afternoon of Friday, November 1, the Boston House of Representatives reported that “James Otis, Esq; returned from New-York, making his Appearance in the House, laid upon the Table the Proceedings of the Commissioners of the Congress at New-York.” The House unanimously approved the resolves the next morning. The government that James Otis had threatened to set aflame was now a charred relic; the oligarchy went through the motions of governing, but in reality the radicals controlled Boston. In a letter to John Pownall on November 5, Governor Bernard wrote that Otis, upon learning that the Council approved additional expenses to safeguard the stamps at Castle William, delivered a speech to the House “so mad & devilish that they all stood astonished & no one durst contradict him” and labeled the Council “a cursed Septemvirate (7 being a quorum) that endeavored to destroy the liberties of the People.” The House promptly elected Otis chairman of a committee appointed to formally rebuke the Council and governor for approving province funds to protect the stamps. The committee’s reprimand, adopted by the House, declared it “astonishing” that additional province funds were spent at the same time that “very heavy additional taxes, external and internal, have been imposed on them by the British Parliament, without their consent.”
A week earlier at a Boston town meeting held the evening after his return, Otis gave an “inflamatory Harangue” that Bernard reported in a letter dated November 12, 1765; Otis “hoped no one would call pulling down 2 or 3 two penny Houses rebellion.” Otis would condemn radical action publicly but then turn around and incite the radicals again. Otis knew and well-described the problems, and he offered various solutions. But the path from the problem to the solution was unclear; it seems he knew that revolution was the only possible answer; he’d hinted at that conclusion several times. But his heart was that of an Englishman, and it was nearly inconceivable to entertain a future apart from the great empire. Nearly.
The opposing opinions that held sway in Otis’s mind were revealed in a letter he wrote to William Samuel Johnson on November 12, 1765 regarding the radical actions that were sweeping the colonies.
God only knows what all these things will end in, and to Him they must be submitted. In the meantime, ’tis much feared the Parliament will charge the Colonies with presenting petitions in one hand, and a dagger in the other.
The dagger was part of the reorganized Popular Party, the party of Otis and Adams. The revolution that had begun in the courtrooms and print shops had now moved to the streets. The “Black Act,” as the Stamp Act was called, was being openly defied. Newspapers continued printing without stamps, businesses operated, and radicals ensured that the absence of stamps didn’t shut down the city. But it did shut down the courts, which couldn’t operate without the stamps. On December 20, the town asked John Adams, Gridley, and Otis to plead with the Governor and Council to open the Courts with or without stamps. John Adams made the argument that the Stamp Act was unconstitutional and therefore “utterly void.” The same Adams who had written Otis off as insane a few years prior was now making the same argument that Otis had made. While Adams reached back to an Otis argument of a few years prior, Otis made an even older one: the refusal to operate the courts was an abdication of government, suggesting that either the Popular Party operate its own courts or the province revert to a state of anarchy. Governor Bernard would have been quite aware that the Puritans has used this argument to depose and execute Charles. Again, Otis could denounce mob action but then employ the same argument against the English that the English had used to depose a king — and to what end was Otis suggesting the people apply his argument? He was too clever to ever state an answer, but the “abdication of government” argument almost certainly terrified Bernard.
Both Bernard and Otis knew that Otis had built a party capable of revolution. On April 11, 1766, Otis wrote to his sister:
Dear sister, for near two years I have not had it in my power to spend any time for myself; it has been taken up for others and some of them perhaps will never thank me. The time however I hope is at hand when I shall be relieved from a task I shall never envy any man who in performing it shall pass the anxious wearisome days and nights which I have seen. This country must soon be at rest, or may be engaged in contests that will require neither the pen nor the tongue of a lawyer. … If we are to be slaves the living have only to envy the dead, for without liberty … I desire not to exist …
This “liberty” is not freedom do to what one wants but rather freedom from the Hobbesian “war of all against all.” After all, it was Otis and his party that threatened to operate their own courts, and it was the armed faction of his party — the Sons of Liberty — who patrolled the streets at night. Liberty, for them, necessitated a functioning government. Otis then went on to reveal his fears, concluding that he could not leave Boston because he was the moderating force guiding the rebellion so that the colony avoided both tyranny and anarchy.
Besides till matters are settled in England I dare not leave the Town, as men’s minds are in such a situation that every nerve is requisite to keep things from running to some irregularity or imprudence, and some are yet wishing for an opportunity to hurting the country.
Without his steady hand guiding the Popular Party, the mob would assume control, and the city would be engulfed in anarchy. In a letter to Otis on December 5, 1767, John Dickinson, the rebel from Philadelphia who Otis had met at the Stamp Act congress, expressed gratitude for Otis’s cautious approach to rebellion.
This Subject Leads me to inform you with Pleasure, because I think it must give you Pleasure, that the Moderation of your Conduct in composing the Minds of your Fellow-Citizens, has done you the highest Credit with us; you may be assured I feel a great satisfaction in hearing your praises.
At the time, moderate Tory Quakers, who mostly had no interest in rebellion, controlled Pennsylvania politics; Dickinson’s rebelliousness was thus necessarily tempered by Quakers intolerant of radicalism. New England had been born and bred in fiery religious zealotry that approached the world with an active effort to shape it; in contrast, Quakers were greater dissenters but could hardly be described as a people consumed with righteousness. Their grasp of principle was a firm tepidity with one foot always planted on the solid ground of caution. If it appeared that the rebels were inciting violence in Boston, Dickinson knew the cause would gain no traction in Philadelphia. Otis’s cautious approach and outward rejection of violence enabled rebels in other colonies to promote the cause. Dickinson pleaded with Otis in that December 5 letter that Massachusetts be the first to “kindle the Sacred Flame” of liberty. In another letter from Dickinson shortly thereafter, he refers to Otis as “deservedly placed at the Head of such excellent Citizens.” Dickinson’s writings were very influential in the colonies and were reprinted in nearly every colonial paper, and yet Otis and the Boston radicals set the example for other colonies of how to translate words into action and how to develop a rebellious consciousness among the general population.
Even with this so-called moderation, Bernard took the “abdication of government” argument so seriously that Otis’s veiled reference to the dethroned and beheaded Charles caused the governor to begin to refer to Otis as the “king of Massachusetts.” In Bernard’s mind, Otis has executed another king.
And Otis likely thought the same. The works of Algernon Sidney had been smuggled into the colony and shared among the rebels through Otis’s close friend Reverend Mayhew. Sidney had been executed a century earlier for threatening the King. Sidney’s argument, among others, was that the people have not the right but the obligation to overthrow a government that does not fulfill its basic responsibilities. Otis referred to Sidney as one of the “British Martyrs.” While Sidney’s argument that natural rights obligate the people to reestablish those rights, even in opposition to their government or law, Sidney’s impact on Otis was perhaps greater when Sidney wrote that “We live in an age that makes truth pass for treason.”
Importantly, Founders such as Otis struggled with implementing the abdication of government argument. In many ways, they weren’t radicals but rather staunch traditionalists. They loved their country, yet they couldn’t escape the basic logic that a government that fails to function must be replaced.
The following year — 1766 — Royal Governor Bernard conceded that James Otis and Sam Adams controlled the city of Boston. Three years later, British troops would occupy Boston. Seven years later, twelve other colonies joined Massachusetts in declaring their right to operate their own government. The war began. Who provoked whom?
Further, if natural rights exist — a right directly from God placed in the soul of each person — does any government have the right to abrogate such rights? If people are “endowed by their Creator with certain unalienable Rights,” then is a government that does not fulfill these rights defying the will of God?
In 1765, Otis and the other Founders claimed that they were provoked by the failure of government to threaten to operate their own courts and to patrol the streets themselves. And so, regarding the Rittenhouse matter, who provoked whom? Did Rittenhouse provoke the rioters? Or did the government provoke Rittenhouse by failing to perform its basic functions?