Knollenberg Bernhard. Growth of the American Revolution: 1766-1775
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erick, a youth of seventeen, and Patrick Carr died of wounds soon af-
terward; and six others were wounded but survived.⁵⁵
Preston, the soldiers, and four men in the Customs House alleged to
have fired shots from it were promptly arrested, indicted for murder,
and held in prison pending trial for murder in the Massachusetts Supe-
rior Court,⁵⁶ which prudently postponed trial until fall, thus giving the
people of Boston and vicinity from whom the jury would be drawn,
time to cool off.⁵⁷
Three witnesses had signed affidavits soon after the “Massacre” that
they heard Preston order his men to fire,⁵⁸ and, on March , Acting
Governor Thomas Hutchinson wrote Governor Francis Bernard, “I
am afraid poor Preston has but little chance. Mr. Auch [Robert Auch-
muty] who is his Counsel tells me the evidence is very strong that the
firing upon the Inhabitants was by his order....”⁵⁹
Auchmuty was joined by John Adams and Josiah Quincy, Jr., as
counsel for Preston. Adams and Quincy, but not Auchmuty, also repre-
sented the soldiers.⁶⁰ Samuel Quincy and Robert Treat Paine were the
prosecuting attorneys.⁶¹
Under the common law rules of evidence then prevailing in Massa-
chusetts, as well as in England, a person accused of a felony could not
testify as a witness in a prosecution for the crime, but had the right to
question witnesses at his trial.⁶² It was, therefore, of great concern to the
accused soldiers to be tried at the same time as Preston, since they
would thus have the opportunity to confront witnesses whom the latter
might call to testify that he had not ordered the men to fire.⁶³ Doubtless
this was what three of the soldiers had in mind in petitioning the trial
court to “have our Trial at the same time with our Captain, for we did
our Captains Orders and...it is very hard, he being a Gentleman
should have more chance to save his life than we poor men that is
Obliged to Obay his command.”⁶⁴
However, presumably at Preston’s request, the court ordered that he
be tried separately, and his trial, which lasted from October to Oc-
tober , , preceded that of the men.⁶⁵
The jury brought in a verdict of “Not Guilty,” without qualification,
thereby acquitting him not only of murder, but of the lesser crime of
manslaughter.⁶⁶
“ ”
The superiority of Preston’s lawyers (of whom he wrote soon after
the trial, “The Counsel for the Crown, or rather the town were but poor
and managed badly; my Counsel on the contrary were men of parts, &
exerted themselves with great spirit and cleverness, particularly Judge
Auchmuty”)⁶⁷ and his reputation as an exceptionally discreet and hu-
mane officer⁶⁸ doubtless weighed in his favor. But more important, the
evidence, on the whole, called for a favorable verdict. The testimony
clearly showed that Preston had come to the Customs House on a legal
mission, and had not fired any of the fatal shots. On the question of
whether he had ordered the men to fire, the testimony was conflicting.
Some witnesses testified that he gave the order, others of no less appar-
ent credibility testified he had not.⁶⁹
The trial of the eight soldiers took place November to Decem-
ber , with the same counsel on both sides as in Preston’s trial, except that
Sampson S. Blowers instead of Auchmuty joined Adams and Josiah
Quincy as lawyers for the defense.⁷⁰ The voluminous testimony of over
fifty witnesses⁷¹ was well and fully summarized in the charges to the jury
by Justice Edmund Trowbridge and Peter Oliver. It showed that the sol-
diers had assembled at the Customs House legally, from which it fol-
lowed that the illegal act of one could not be held against the group as
a whole. Only two of the soldiers, Hugh Montgomery and Matthew
Killroy, could be identified as having fired shots resulting in death;⁷² and
it was clear that even they had fired only under great provocation.⁷³
The charges to the jury by the trial judges pointed to verdicts that
none of the accused was guilty of murder and that Montgomery and
Killroy, because of the provocation under which they fired, were, if
guilty at all, guilty at most of manslaughter.⁷⁴ The jury brought in un-
qualified verdicts of “Not guilty” in favor of all the accused except
Montgomery and Killroy and “Not guilty of murder but guilty of man-
slaughter” in the cases of these two.⁷⁵ Pleading benefit of clergy, they
escaped with burning on the hand.⁷⁶
The evidence against the men in the Customs House accused of par-
ticipation in the “Massacre” apparently was so weak that on Decem-
ber the jury acquitted all four “without going from their seats.”⁷⁷
Samuel Adams (who, after James Otis, Jr., suffered a mental break-
down,⁷⁸ had become the unrivaled leader of the Boston radicals) tried
to whip up popular resentment over the acquittals by a series of articles
in the Boston Gazette from mid-December, , through January, .⁷⁹
But he was unsuccessful; the letters and diary entries of many observers
record that the town remained remarkably quiet.⁸⁰ Even the harried
Customs Commissioners, who, following the Boston Massacre had again
fled to Castle William,⁸¹ ventured to return to Boston. (They remained
until the commotion in Boston over the Tea Act of , described in
Chapter , sent them scurrying for a third time to the shelter of the
Castle.)⁸²
The calm with which the outcome of the trials was accepted doubt-
less was attributable in large measure to the evidence at the trials that
the soldiers had not fired until they were attacked. But another impor-
tant factor was the withdrawal of the troops from Boston immediately
after the “Massacre.” On the following day, a committee of leading
Bostonians⁸³ prevailed upon the provincial Council and Acting Gover-
nor Hutchinson to pray Colonel William Dalrymple, commander of
the British troops at Boston,⁸⁴ to remove all of them to Castle William.⁸⁵
Dalrymple acceded to this request,⁸⁶ and, a few weeks later, the tension
in Boston was further reduced by sending the Twenty-ninth Regiment
to New Jersey, thus leaving only the Fourteenth, which had not been di-
rectly involved in the “Massacre,” even in the vicinity of Boston.⁸⁷
The sending of British warships and troops to Boston for the pro-
tection of the American Customs Board and the “Massacre” resulting
from the presence of the troops there were, however, ultimately of great
significance in the movement toward revolution.
Year after year from to , the day of the “Massacre” was me-
morialized in public orations⁸⁸ by such notables as Dr. Joseph Warren⁸⁹
and John Hancock, who, expanding on the horror of the “unprovoked
murders” of March ,⁹⁰ helped keep alive the spirit of opposition to
British encroachments on colonial home rule. The dead of that day
were made a symbol of alleged British ruthlessness as the death of Edith
Cavell was to become a symbol of alleged German “Schrecklichkeit” in
World War I.*
“ ”
* Edith Cavell was an English nurse in World War I executed by the Germans for smuggling En-
glish troops back to their lines. The English praised her as a martyr. [B.W.S.]
Perhaps even more significant was the unfavorable effect of the “Mas-
sacre” on public opinion in Great Britain. The assault on the British
sentries at the Customs House leading to the “Massacre” contributed
to the ill repute of Boston as the hotbed of colonial insubordination, and
thus helped lay the foundation for the fateful Boston Port Act and
Massachusetts Regulating Act of (described in later chapters).
THE GASPEE AFFAIR AND THE
JUDGES’ SALARY CONTROVERSY
F
following , there was an easing
of the controversy over the principal issue between Great Britain
and the colonies
—taxation. The revised non-importation agreements
continuing the boycott on tea and other dutied imports from Great
Britain were apparently observed only in so far as they applied to tea,
and even as to it only if smuggling from Holland or other non-British
sources of supply was more lucrative than legal importation.¹
There was a long-drawn controversy between the Massachusetts Leg-
islature (general court) and the Crown-appointed Governor of the colony
over the latter’s removal of the meetings of the Legislature from Boston
to Cambridge.² There was another between the Crown-appointed
Governor and Council of South Carolina and the provincial Assembly
over the latter’s dubious claim of right to appropriate public funds with-
out the concurrence of the Governor and Council.³ But these both were
localized.
The same was true of an insurrection, the Regulator Insurrection,
in North Carolina⁴* and a controversy over fees in Maryland,⁵ both of
which, moreover, only remotely involved the British government.
* A. Roger Ekirch, “North Carolina Regulators on Liberty and Corruption, –,” Perspec-
tives in American History, (–), –; Alan D. Watson, “The Origin of the Regulation in
North Carolina,” The Mississippi Quarterly, (), –. See also Richard Maxwell Brown, The
South Carolina Regulators (Cambridge, Mass.: Harvard University Press, ); Rachel N. Klein,
“Ordering the Backcountry: The South Carolina Regulation,” William and Mary Quarterly, rd ser.,
(), –. [B.W.S.]
There also were clashes during this period⁶ (as before)⁷ between co-
lonial merchants and customs officers, including commanders of British
warships acting as an arm of the British customs service. But, though
these clashes arose from a common source, enforcement of British re-
strictions and duties on colonial trade, they led to no united opposition
until the latter part of . Steps then taken by the British government
to send persons involved in the burning of one of the ships, the Gaspee,
from Rhode Island to England for trial again united the colonies in
common indignation and alarm.*
In the years before , Rhode Island had been the scene of several
clashes involving British men of war,⁸ and, soon after his arrival in Feb-
ruary, , Lieutenant William Dudingston, commander of the Gaspee,⁹
began to lay the foundation for another.¹⁰ He illegally sent to Boston
rum seized by him in Rhode Island¹¹ and stopped and searched with
“intemperate, if not reprehensible zeal to aid the customs service” (as
the Royal Commission of Inquiry, described later in this chapter, put
it)¹² vessel after vessel in Narragansett Bay, a nearly landlocked bay
extending from Newport many miles into the very heart of Rhode Is-
land.¹³ He also evaded letters from Governor Joseph Wanton of Rhode
Island requiring him to produce a commission authorizing him to act
as a customs officer.¹⁴
Dudingston sent Wanton’s letters to Admiral John Montagu,¹⁵ com-
manding the British fleet in North American waters, who, far from dis-
countenancing his lieutenant’s conduct, wrote an insolent letter to
Wanton on April , , stating:
“Lieutenant Dudingston, commander of His Majesty’s armed
schooner, and a part of the squadron under my command, has sent me
two letters he received from you,¹⁶ of such a nature, I am at a loss what
answers to give them, and ashamed to find they came from one of His
Majesty’s governors....
“He sir, has done his duty, and behaved like an officer; and it is your
duty, as a governor, to give him your assistance, and not endeavor to dis-
tress the King’s officers for strictly complying with my orders. I shall
* Neil L. York, “The Uses of Law and the Gaspee Affair,” Rhode Island History, (), –; Law-
rence J. Varo, Jr., “The Gaspee Affair as Conspiracy,” Rhode Island History, (), –. [B.W.S.]
give them directions, that, in case they receive any molestation in the
execution of their duty, they shall send every man so molesting them to
me....I shall report your two insolent letters to my officer, to His
Majesty’s secretaries of state, and leave them to determine what right
you have to demand a sight of all orders I shall give to all officers of my
squadron; and I would advise you not to send your sheriff on board the
King’s ship again, on such ridiculous errands.”¹⁷
Wanton replied temperately to Montagu’s letter,¹⁸ and on May ,
sent copies of it and his reply to Secretary of State Lord Hillsborough
with a covering letter pointing out the lawlessness of Dudingston’s con-
duct and the injustice and impropriety of some of Montagu’s state-
ments.¹⁹ But long before orders could be given to Montagu to put a stop
to Dudingston’s galling activities, they were violently terminated when
the Gaspee ran aground²⁰ on the afternoon of June ²¹ near Pawtuxet,
Rhode Island, in Narragansett Bay a few miles south of Providence.
About the middle of the following night a party of over a hundred
men in six or eight boats boarded the Gaspee, shot and seriously wounded
Dudingston, bound the members of the crew, put them and Dud-
ingston ashore at Pawtuxet, and burned the vessel to the water’s edge.
On learning of the attack, Lieutenant-Governor Darius Sessions
hastened to Pawtuxet from Providence and secured affidavits from three
members of the crew concerning the attack. However, none of them
could identify any members of the attacking party and Dudingston
himself declined to talk, both because of his “indisposition of body” and
because it was his duty, he said, to say nothing until he could give his
testimony at a court martial, which he expected to face because he had
lost a ship. Sessions wrote Wanton an account of the attack, enclosing
the affidavits he had procured, and advising the Governor to issue a
proclamation offering a large reward for the arrest of the offenders.²²
Wanton promptly acted on Sessions’ advice by issuing a proclama-
tion strongly denouncing the attack, commanding all officials in the col-
ony to exert themselves to the utmost to discover and arrest the attack-
ers, and offering a reward of one hundred pounds sterling to any one
identifying one or more of them, the reward to be paid immediately on
his or their conviction.²³ But no claimants for the reward appeared.
However, early in July, an indentured servant, Aaron Briggs, coming
aboard the Beaver, another patrol ship stationed at Newport, was iden-
tified as one of the attackers by a sailor formerly of the Gaspee. When
questioned by the Beaver’s commanding officer, Captain John Linzee,
Briggs “confessed” that he had taken part in the attack. He also named
two leading men of Rhode Island, John Brown of Providence and
Simeon Potter of Bristol, as members of the attacking party.²⁴
Admiral Montagu sent a copy of Briggs’ confession to Governor
Wanton with a covering letter of July .²⁵ But when Wanton had a war-
rant sworn out for Briggs’ arrest, Linzee illegally and “in a most con-
temptuous...manner” refused to permit the deputy sheriff holding the
warrant to come aboard. After this (to quote further from the report of
the Royal Commission) “the civil magistrates ceased their endeavors to
discover the offenders.”²⁶
In the meantime, Montagu’s report on the attack to British officials
in London²⁷ had led to meetings of the Cabinet and of the Privy Coun-
cil,²⁸ following which the King issued a proclamation in September,
, offering a reward of five hundred pounds per person for the dis-
covery and conviction of persons participating in the attack.²⁹ The
King also appointed a Commission of Inquiry, consisting of Governor
Wanton, the Chief Justices of New York, New Jersey, and Massachu-
setts and the judge of the New England Admiralty District, to go into
the whole affair and to collect evidence on the basis of which the ac-
cused were to be arrested by the civil authorities of Rhode Island and
turned over to Montagu to be shipped to England for trial.³⁰
The original plan was to try the offenders in Great Britain under a re-
cent act, the so-called Dockyards Act of Geo. III ch. ().³¹ The
act imposed a sentence of death for maliciously setting afire, burning, or
otherwise destroying British men of war, and, if the offense were com-
mitted outside the realm, for indictment and trial of the offender or offen-
ders, at the option of the Crown, either in the place where the offense was
committed, or “in any shire or county in this realm . . . any law, usage or
custom notwithstanding.”³² But the destruction of ships covered by this
act related exclusively to ships in dockyards, and, since the Gaspee clearly
was not in a dockyard when attacked, the chief legal officers of the
Crown held that its attackers could not be prosecuted under this act.³³
They advised, however, that “the attack was an act of high treason,
viz. of levying war against His Majesty, and the offenders may be in-
dicted either here or in Rhode Island....”
Guided by this opinion, the Privy Council decided that the Crown
should proceed under the Treason Act of Henry VIII ch. (), de-
scribed in Chapter .³⁴
Pursuant to this decision, Lord Dartmouth,³⁵ who had recently suc-
ceeded Hillsborough as Secretary of State for the Colonies, wrote Wan-
ton (September ) that “the offence is, in the opinion of the law servants
of the Crown,...an act of high treason, viz. levying war against the
King.” “It is His Majesty’s intention,” he continued, “that the persons
concerned in the burning the Gaspee schooner, and in the other vio-
lences which attended that daring insult, should be brought to England,
to be tried; and I am therefore, to signify to you His Majesty’s pleasure,
that such of the offenders as may have been or shall be arrested and
committed within the colony of Rhode Island, be delivered to the care
and custody of Rear Admiral Montagu...or to such officers as he shall
appoint to receive them, taking care that you do give notice to the per-
sons accused, in order that they may procure such witnesses on their be-
half as they shall think necessary, which witnesses, together with all such
as may be proper to support charges against them, will be received and
sent here with the prisoners.”³⁶
The penalty for treason was even more terrifying than for burning a
war vessel. A convicted traitor’s family, as well as he, was punished by
forfeiture of his entire estate to the King³⁷ and he himself was subject to
a most horrible death. The penalty (quoting Blackstone) was: “. That
the offender be drawn to the gallows..... That he be hanged by the
neck, and then cut down alive. . That his entrails be taken out and
burned, while he is yet alive. . That his head be cut off. . That his body
be divided into four parts...[and] his head and quarters be at the
king’s disposal.”³⁸
The Commissioners sat for several weeks at Newport in January,
May, and June, ,³⁹ but the only person implicated besides Aaron
Briggs and those named by him was a “tall, slender man wearing his
own hair, of a brown color,” whose family name was Greene⁴⁰
—one of
the commonest names in the colony.⁴¹ Thus, all substantial hope of dis-
covery and conviction centered on Briggs, and when he was examined
by the Commissioners they found that his testimony not only had been
extorted under duress, but could not possibly be true.
“We humbly conceive it our duty to declare to Your Majesty,” they
wrote in their report to the King, “that the conduct of Capt. Linzee
[who had threatened to whip and then hang Briggs if he did not con-
fess] tended too strongly to extort from a weak or wicked mind, decla-
rations not strictly true; that some parts of his [Briggs’] depositions
falsify others; that allowing the account he gave of leaving...his resi-
dence, on the night the Gaspee was burnt, to be true or even near the
truth, must render his being at the taking and destroying her, totally im-
possible....In addition to all which, there is full and satisfactory evi-
dence, to prove him, the whole of that night, to have been at home...
and therefore we are most humbly of opinion, no credit is due to said
Aaron’s testimony.”⁴²
The Commissioners turned over the depositions they had taken cov-
ering the attack to the judges of the Rhode Island Superior Court for
action, but the judges informed them that “we are all of opinion that
the several matters and things contained in said depositions do not in-
duce a probable suspicion that the persons mentioned therein, or either
or any of them are guilty of the crime, aforesaid.”⁴³ The judges added
that “if the honorable commissioners are of a different sentiment, we
should be glad to receive their opinion, for our better information,” but
the latter produced nothing further.⁴⁴
The Commissioners’ report to the King, dated June , , set forth
their findings of fact concerning the attack on the Gaspee, told of their fu-
tile efforts to identify the offenders, and censured the Rhode Island gov-
ernment for its failure to continue efforts to discover and arrest the at-
tackers after Captain Linzee’s refusal to turn over Briggs to the deputy
sheriff. But they also criticized Linzee and Dudingston, pointing out
that Linzee not only had refused to surrender Briggs when legally called
upon to do so, but had “treated the civil authority in a most contemp-
tuous and unjustifiable manner” and that Dudingston had unduly
delayed acquainting Governor Wanton “with his power and authority”