But Governor Bernard, Shirley's second successor in office, took another view of the matter and appointed Lieutenant-Governor Hutchinson to the high office of Chief Justice.
It was the belief and allegation of the King's party that this appointment and this disappointment—the first of Hutchinson and the second of Colonel Otis—bore heavily on all the Otises, and indeed converted them from royalism to patriotism.
Chief Justice Hutchinson himself is on record to this effect. In his "History of Massachusetts," speaking of his own appointment to the judicial office, he says:
"The expected opposition ensued. Both gentlemen (that is, Colonel Otis and James Otis, Jr.) had been friends to the government. From this time they were at the head of every measure in opposition, not merely in those points which concerned the Governor in his administration, but in such as concerned the authority of Parliament; the opposition to which first began in this colony, and was moved and conducted by one of them, both in the Assembly and the town of Boston. From so small a spark, a great fire seems to have been kindled."
The statement of a partisan, especially if he be a beneficiary, must be taken with the usual allowance of salt.
It may be that the patriotic trend of the Otises was intensified a little by a personal pique in the matter referred to. But that either father or son was transferred from the king's party to the people's party by the failure of Colonel Otis to be appointed Chief Justice is not to be believed. Other stories are to be dismissed in the same manner.
One slander prevalent about the Custom House ran to the effect that James Otis had declared that he would set the province on fire even if he had to perish in the flames. The art of political lying was known even among our fathers.
Such was the situation of affairs when the sycophants of the foreign government in Boston undertook to enforce the Writs of Assistance. They soon found that they needed more assistance to do it. The banded merchants, and the patriots generally, said that the acts were illegal, and that they would not submit to the officers. The governor and his subordinates and the custom-house retinue in particular, said that the writs were legal, and that they should be enforced. The matter came to a clash and a trial.
The case as made up presented this question: Shall the persons employed in enforcing the Acts of Trade have the power to invoke generally the assistance of all the executive officers of the colony?
This issue was, in February of 1761, taken into court in the old Town House, afterwards the old State House, of Boston. There were sitting the five Judges of the Superior Court of the province. Chief Justice Hutchinson, still holding the office of Lieutenant-Governor, his membership in the Council, and his position of Judge of Probate, presided at the trial. Perhaps there was never in America an instance in which a high official so nearly fulfilled the part of "Pooh Bah."