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Imperial Impotence: Treason in 1774 Massachusetts

Published online by Cambridge University Press:  21 July 2011


So contended Edmund Burke in the House of Commons, during a May 1770 speech that ridiculed the government's American policy. It was not the first time Burke raised the subject of this 1543 statute. He had asked—rhetorically—during debates two weeks before, “The Act of Henry VIII. Did you mean to execute that?” He then answered his own question, the scorn beneath it probably apparent to all. “You showed your ill will to America, at the same time you dared not execute it.” Burke hoped that by shaming the ministry he might be able to push through a set of resolutions condemning its policies, which could open the way for a new approach to imperial management. He failed, but that did not mean he had been wrong about the futility of threatening to resurrect an old statute to intimidate protesting Americans.

Copyright © the American Society for Legal History, Inc. 2011

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1. Edmund Burke in the House of Commons, May 9, 1770, as taken from Simmons, R. C. and Thomas, P. D. G., eds., Proceedings and Debates of the British Parliaments Respecting North America, 1754–1763, (Millwood, NY: Kraus International Publications, 1982–1987), 3:324Google Scholar. His eight defeated motions are enumerated at ibid., 297–98. He and Isaac Barré had both earlier ridiculed the notion in House of Commons debates on January 9. See Cobbett, William, ed., The Parliamentary History of England to 1803, 36 vols. (London: T. C. Hansard, 1806–1820), 16:722 and 711Google Scholar, respectively. Burke all but repeated himself in the House of Commons on March 7, 1774, criticizing colleagues for assuming that “treasons” had been committed without conducting a thorough investigation first (see ibid., 43). “Although the Act of 35 Henry VIII contributed little substance to the constitutional debate leading to the American Revolution,” concluded John Phillip Reid, “it became a serious grievance helping to drive Americans to rebellion.” See Reid's, Constitutional History of the American Revolution, 4 vols. (Madison: University of Wisconsin Press, 1986–1993), 3:281–86Google Scholar; quotation from 284.

2. Burke in the Commons, April 26, 1770, in Simmons and Thomas, eds., Proceedings, 3:257–58.

3. George III, speech from the throne, November 8, 1768, in Simmons and Thomas, eds., Proceedings, 3:1.

4. Hans Stanley, in the House of Commons on November 8, 1768, ibid., 3:9.

5. The peers urged that the King “direct His Majesty's Governor of Massachusetts Bay to take the most effectual Methods for procuring the fullest Information that can be obtained, touching all Treasons or Misprision of Treason, committed within His Government since the Thirtieth of December last, and to transmit the same, together with the Names of the persons who were most active in the Commission of such Offences, to One of His Majesty's Principal Secretaries of State, in order that His Majesty may issue a Special Commission for enquiring of, hearing, and determining, the said Offences, within this Realm, pursuant to the Provisions of the Thirty-fifth year of the Reign of Henry the Eighth, if His Majesty shall, upon receiving the said Information, see sufficient ground for a Proceeding.” Their resolution, the eighth of eight dealing with American affairs, passed its third reading on December 21, 1768 and was endorsed by the Commons on February 8, 1769, after the Christmas recess. See Simmons and Thomas, eds., Proceedings, 3: 45–47, for the House of Lords resolutions. For the House of Commons’ debates and ultimate concurrence see ibid., 34:64–87. The phrase “Misprision of Treason” was included to cover those who knew that treason was being committed but did nothing to stop or even report it, an unusual charge under common law, where inaction rather than action was the key to whether or not a crime had occurred. For Massachusetts Governor Francis Bernard's disappointment that no sedition or treason charges resulted, see Nicolson, Colin, The “Infamas Govener” (Boston: Northeastern University Press, 2001), 191–97.Google Scholar

6. “Awe,” by William de Grey, the attorney general, during debates in the House of Commons on January 26, 1769, in Simmons and Thomas, eds., Proceedings, 3:69; Phipps in the House of Commons on February 8, 1769, ibid., 3:90.

7. From the resolution of July 7, 1769, printed in Journals of the House of Representatives of Massachusetts [hereafter Mass. House Journals], 55 vols. (Boston: Massachusetts Historical Society, 1919–1990), 45:172. The 1696 statute, which replaced another passed in 1678, can be found in The Charters and General laws of the Colony and Province of Massachusetts Bay (Boston: T. B. Wait, 18l4), 6162 (1678) and 294 (1696)Google Scholar. It too defined treason as an act against the king, as attested to by “two lawful and credible witnesses.” In Virginia, the House of Burgesses had condemned taking colonists accused of treason to England for trial as well.

8. The historiography on this subject would fill many shelves. Good starting points remain Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge: The Belknap Press of Harvard University Press, 1967)Google Scholar; and Greene, Jack P., Peripheries and Center (Athens, GA: University of Georgia Press, 1986)Google Scholar; as well as Reid Constitutional History.

9. In his report to Charles II of April 6, 1681, Randolph complained that the “unparalleled misdemeanors & contempts even in their daily arbitrary actings” amounted to “no lesse than High Treason,” but the fifteen formal articles drawn up against the Bay Colony on June 4, 1683 did not stipulate treason as among the reasons for a quo warranto proceeding that could lead to the charter's being rescinded. See Toppan, Robert Noxon, ed., Edward Randolph, 5 vols. (Boston: The Prince Society, 1898–1899), 3:90 and 229–30Google Scholar, respectively. For Randolph and his investigations, culminating in the Dominion of New England, see Hall, Michael G., Edward Randolph and the American Colonies, 1676–1703 (Chapel Hill: University of North Carolina Press, 1960)Google Scholar; and Johnson, Richard R., Adjustment to Empire: The New England Colonies, 1675–1715 (New Brunswick: Rutgers University Press, 1981)Google Scholar.

10. For which see, variously, Greene, Peripheries and Center; Bushman, Richard L., King and People in Provincial Massachusetts (Chapel Hill: University of North Carolina Press, 1985)Google Scholar; Yazawa, Melvin, From Colonies to Commonwealth (Baltimore: Johns Hopkins University Press, 1985)Google Scholar; Wood, Gordon S., The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1992)Google Scholar; Armitage, David, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000)CrossRefGoogle Scholar; and Gould, Eliga, Persistence of Empire (Chapel Hill: University of North Carolina Press, 2000)Google Scholar.

11. 35 Henry VIII c. 2 in Pickering, Danby, ed., The Statutes at Large, 46 vols. (Cambridge: Joseph Bentham, 1762–1807), 5:199Google Scholar.

12. That was the fate awaiting a common man. A convicted woman would be burned alive. A peer of the realm, who could request to be tried in the House of Lords, could also hope for a simple beheading if convicted.

13. 25 Edward III c. 2, in Pickering, ed., Statutes, 2:50–53. For context see Bellamy, J. G., The Law of Treason in England in the Later Middle Ages (Cambridge: Cambridge University Press, 1970)CrossRefGoogle Scholar, who also observed (p. 137) that “since the king's lawyers were able if they wished to construe a great many crimes as compassing the death of the monarch it is obvious that it was not the scope of the law of treason which restricted any despotic tendencies in this field. It was in fact more by the legal procedure necessary to try a traitor that any tendency to override the law was limited.”

14. Blackstone, William, Commentaries on the Laws of England, 4 vols. (Chicago: University of Chicago Press, 1979Google Scholar; orig. ed., 1765–1769), 4:75, from “Of High Treason” (Book IV, Chapter 6). William Eden echoed Blackstone when he wrote that high treason “is the foulest crime that can be committed” and the “foulest instance” of it is when it “aims directly at the royal person.” In Eden's anonymously authored Principles of the Penal Law, 3rd ed. (1775), 117. Dagge, Henry, Considerations on the Criminal Law (London: T. Cadell, 1772)Google Scholar commented that 25 Edward III c. 2 “is to this day the ruling Statute” (p. 294), which “appears to be not only extremely severe, but strangely undistinguishing.” (that is to say, indiscriminate, p. 296). Dagge, who considered himself a legal reformer, regarded the punishment for high treason—a crime that could be much too broadly construed—with “horror” (p. 299).

15. The most important statute for these purposes, passed in 1696, is 7 William III c. 3, in Pickering, ed., Statutes, 9:389–92. For contrast, see 21 Richard II c. 3, a 1397 law stipulating “that every man, which compasseth or purposeth the death of the King, or to depose him, or to render up his homage or liege” could be attainted in Parliament and “shall be judged as a traitor of high treason against the crown” (ibid., 2:372). Here, no overt act was required; indeed, it could have included just the expression of a desire rather than the formation of a plan to challenge the throne, under the rubric of what would become known as “constructive treason.”

16. Blackstone, Commentaries, 4:80 (Book IV, Chapter 6), “though of late even that has been questioned,” he added (4:81).

17. Hawkins, William, A Treatise of the Pleas of the Crown, 2 vols. (London: Elizabeth Nutt, 1716, 1721), 1:37 (Book 1, Chapter 17)Google Scholar. Hawkins, far more than Blackstone, qualified his conclusions with “however” and “seems” to underscore how many gaps there were (and still are, it should be admitted) in the reconstructed English legal past, and therefore how difficult it was to know how and when treason became a felony apart, and how the law pertaining to it had been applied over time.

18. Hay, Douglas, “Property, Authority and the Criminal Law” in Albion's Fatal Tree, eds. Hay, Douglas, Linebaugh, Peter, Rule, John G., Thompson, E. P., and Winslow, Cal (London: Allen Lane, 1975), 56Google Scholar. McLynn's, Frank popular account, Crime and Punishment in Eighteenth-Century England (London: Routledge, 1989)Google Scholar follows a similar interpretive line, noting that Britain's elite “was normally more concerned with the law's bark than its bite.” (p. 348, n. 26). Also see Steffen, Lisa, Defining a British State: Treason and National Identity 1608–1820 (New York: Palgrave, 2001)CrossRefGoogle Scholar; and Chapin's, Bradley still very useful The American Law of Treason: Revolutionary and Early National Origins (Seattle: University of Washington Press, 1964)Google Scholar. Carso, Brian F. Jr., “Whom Can We Trust Now?” (Lanham, MD: Lexington Books, 2006)Google Scholar relies heavily on Chapin for his discussion of treason in the Revolutionary Era, but he does offer his own insights on larger issues that arose then.

19. Hale, Matthew, The History of the Pleas of the Crown, 2 vols. (London: E. and R. Nutt, 1736)Google Scholar, 1:76–87, part of a much larger discussion of treason (pp. 1:8–372). Hale had died over a half century before, but an admiring Sollom Emlyn edited the text for publication and it was widely respected and cited by English jurists, Blackstone included, for decades to come. Members of Parliament, such as John Dunning, who contended that the North ministry had erred in labeling as war against the king what was merely riot, may well have been following the distinction as laid out in Hale, Pleas, 1:130–58.

20. For this and what followed see York, Neil L., “The Uses of Law and the Gaspee Affair,” Rhode Island History 50 (1992):122.Google Scholar

21. Their report of August 10, 1772 (in response to Hillsborough's request of August 7) is in The National Archives [hereafter TNA], Public Record Office, Colonial Office [hereafter PRO/CO] 5/159, fos.26–27; also in TNA, PRO/CO 5/247, fo. 43. They ruled that the Royal Dockyards Act, passed the previous session of Parliament, did not apply in this case, because the Gaspee was at sea rather than in dock facilities. “We are also of the opinion that the Attack made in the manner it was upon His Majesty’ s Commission [meaning Lieutenant Dudingston, on the king's business] was an Act of High Treason vizt of levying War against His Majesty & that the Offenders may be indicted of the High Treason either here or in Rhode Island taking that Assertion of the to be true that the Ship was stationed within the Body of some County in that Province.” Those facing prosecution under the Dockyards Act for crimes committed outside the realm could be tried either at the local venue or back in England, a provision similar to that which was being read into 35 Henry VIII c. 2. Violators of the act were charged with a general felony, not high treason. See 22 George III c. 24, in Pickering, ed., Statutes, 19:62–63.

22. Donoughue, Bernard, British Politics and the American Revolution (London: Macmillan, 1964), 35Google Scholar, saw an “end to vacillation and compromise” in the government's American policy because of the Tea Party. Thomas, Peter D. G., Tea Party to Independence (Oxford: Clarendon Press, 1991), 9CrossRefGoogle Scholar, contended that “the North ministry had already demonstrated the previous year that it would not flinch from a colonial confrontation.” meaning its reaction to the Gaspee affair. But it did flinch then and it would vacillate in the aftermath of the Tea Party as well. I can accept more readily Thomas's observation (Tea Party to Independence, 47) that “the measures of 1774 were neither in manner nor content what the North cabinet would have preferred,” and that, with the rejection of more “extreme” proposals, the policy adopted “was the minimum response that could have been adopted after news of the Boston Tea Party.” Also see Dickinson, H. T., “Britain's Imperial Sovereignty: The Ideological Case against the American Colonists” in Dickinson, H. T., ed., Britain and the American Revolution (London: Longmans, 1998), 6496Google Scholar; and Gould's, Eliga suggestive “Fears of War, Fantasies of Peace: British Politics and the Coming of the American Revolution” in Empire and Nation, eds., Gould, Eliga H. and Onuf, Peter S. (Baltimore: Johns Hopkins University Press, 2005), 1934.Google Scholar

23. A statement related by the Reverend William Gordon in a letter to the Earl of Dartmouth, June 16, 1773, in the Historical Manuscripts Commission [hereafter HMC], The Manuscripts of the Earl of Dartmouth, 3 vols. (London: Eyre and Spottiswoode, 1887–1896), 2:156Google Scholar.

24. Montagu to Philip Stephens, secretary to the treasury lords, December 17, 1773, in TNA, PRO/CO 5/247, fo. 174, also in the Dartmouth Papers, D (W) 1778/Iii/942/2, Staffordshire Record Office; sentiments expressed as well in a letter the same day to Charles Jenkinson, a vice-treasurer, in Add. Ms. 38208 (Liverpool Papers), fo. 23, British Library [hereafter BL]. Montagu had reported to Stephens, even before the Tea Party, that Boston and neighboring communities appeared “to be in anarchy and confusion.” Letter of December 8, 1773, Dartmouth Papers, D(W) 1778/Iii/942/1.

25. Brought together neatly in Reid, John Phillip, ed., The Briefs of the American Revolution (New York: New York University Press, 1981)Google Scholar, with Reid's own insightful commentary.

26. Nelson's, William chapter on Hutchinson in The American Tory (Oxford: Clarendon Press, 1961)Google Scholar, (“The Essential Tory,” pp. 21–39) foreshadowed the longer exploration by Bailyn, Bernard in The Ordeal of Thomas Hutchinson (Cambridge: The Belknap Press of Harvard University Press, 1974)Google Scholar, which carries the tragic undertone (see, especially, pp. 191–226) that Hutchinson had created for himself, perpetuated by his great-grandson, Hutchinson, Peter Orlando, ed., in The Diary and Letters of His Excellency Thomas Hutchinson, Esq., 2 vols. (London: Sampson, Low, Marston, Searle, & Rivington, 1883, 1886)Google Scholar, especially at 1:104–151.

27. Hutchinson to Dartmouth, December 24, 1773, TNA, PRO/CO 5/763, fo. 35.

28. Hutchinson to Dartmouth, in a letter of February 1774 marked “private,” printed in Hutchinson, ed., Diary, 1:114. Also see Hutchinson's reminiscence of events surrounding the Tea Party in his The History of the Province of Massachusetts-Bay, 3 vols. (Cambridge: The Belknap Press of Harvard University Press, 1936)Google Scholar, 3:315–30.

29. Labaree, Benjamin Woods, The Boston Tea Party (New York: Oxford University Press, 1964), 170–93Google Scholar, offers a nice overview of London's reaction, whereas Donoughue, British Politics, 36–73 provides a detailed review of cabinet level decision making during the crucial period between February 4 and 28.

30. Dartmouth to Hutchinson, February 5, 1774, TNA, PRO/CO 5/763, fo. 29.

31. Dartmouth to the attorney general and solicitor general, February 5, 1774, in TNA, PRO/CO 5/160, fos. 1–8 (quotation from fo. 2); also in the Dartmouth Papers, D (W) 1778/II/807. This report, along with several other documents showing London's response to the Tea Party, can also be found in Davies, K. G., Documents of the American Revolution, 1770–1783, 21 vols. (Shannon: Irish University Press, 1972–1981), 8:3742Google Scholar for this particular report. Also see the cabinet notes for February 4 and 5 in the Dartmouth Papers, D (W) 1778/II/814 and 819, respectively.

32. TNA, PRO/CO 5/160, fo. 11; also printed in Davies, ed., Documents, 8:41–42.

33. Dartmouth's note of February 10, 1774 is in TNA, PRO/CO 5/250, fo.144.

34. Thurlow and Wedderburn to Dartmouth, December 11, 1774, in TNA, PRO/CO 5/160, fos. 40–42, with another copy in PRO/CO 5/247, fos. 189–193. Also printed in Davies, ed., Documents, 8:46–48.

35. The other four were [Thomas] Denny, [Benjamin] Church, [Thomas] Young, and [Andrew] Johon[n]et. The “Evidence of Fact” that Dartmouth used for naming names in his note to Thurlow and Wedderburn included: Adams and Hancock along with William Phillips, John Rowe, and Jonathan Williams from town meeting minutes; Hancock, Rowe, Adams, and Phillips in a letter from Admiral Montagu; Williams, Adams, Molineux, Young, and Warren from a letter by a Captain Scott, all in the Dartmouth Papers, D (W) 1778/II/807; and Hancock again in a letter from Lieutenant Colonel Alexander Leslie, commander at Castle William, in ibid., D (W) 1778/Iii/944/1. If Dartmouth had truly wanted to pursue treason charges in court, with treason defined broadly, he had a surfeit rather than a shortage of names from which to choose. TNA, PRO/CO 5/160, fo. 16.

36. Ibid.

37. Copies of Dartmouth's second query, dated February 11, 1774, can be found in TNA, PRO/CO 5/160, fo.44; and PRO/CO 5/250, fo.47, with a notation made later by another hand: “NB No Written Report was made to this Reference.”

38. HMC, Report on Manuscripts in Various Collections, 8 vols. (London: Mackie & Co., 1901–1914)Google Scholar, 6:270. Thurlow, an admirer of the now deceased George Grenville, supposedly added for good measure: “Now if it was George Grenville, who was so damned obstinate that he would go to hell with you before he would desert you, there would be some sense in it.” (Ibid.)

39. Gore-Browne, Robert, Chancellor Thurlow (London: Hamilton, 1953)Google Scholar relied to some extent on Sir Campbell, John, Lives of the Lord Chancellors and Keepers of the Great Seal of England, 5th ed., 10 vols. (London: John Murray, 1868), 7:153333Google Scholar, though Campbell did not dwell on the differences that split Thurlow and Wedderburn. Also see the brief sketches in Sir Namier, Lewis and Brooke, John, The House of Commons, 1754–1790, 3 vols. (London: Her Majesty's Stationery Office, 1964), 3:529–31Google Scholar (Thurlow) and 3:618–20 (Wedderburn); and the longer pieces in the Oxford Dictionary of National Biography, 60 vols. (Oxford: Oxford University Press, 2004), 54:715–20Google Scholar (Thurlow) and 57: 908–10 (Wedderburn).

40. Thurlow's irritation with Wedderburn, and with a “lazy” North as well, was commented on by Horace Walpole, whose caustic observations must always be used advisedly. See Steuart, A. Francis, ed., The Last Journals of Horace Walpole During the Reign of George III From 1771–1783, 2 vols. (London: John Lane, 1910), 1:313–14Google Scholar. The Earl of Buckinghamshire noted at least one disagreement between Thurlow and Wedderburn on how to proceed against Hancock and the others, in a meeting that he attended with them and Dartmouth on March 2, 1774. In HMC, Report on the Manuscripts of the Marquess of Lothian (London: His Majesty's Stationery Office, 1905), 290–91Google Scholar.

41. In a conversation with Hutchinson some months later, North admitted the need to “punish those concerned” with the tea business, but it would be difficult “carrying” 35 Henry VIII c. 2 “into execution. That the destruction of the Tea, connected with the Resolves of the Meeting was treason, he said was past doubt; but the lawyers were in doubt whether the evidence which appeared was sufficient: otherwise they should gone on to prosecute.” Hutchinson, ed., Diary, 1:245, from September 21, 1774. Also see note 49, below. I doubt if Thurlow or Wedderburn would ever have felt that there was sufficient evidence to prosecute, because winning in court was not the ultimate goal; behavior modification is what they really wanted. Going to court is always risky, as lawyers know best.

42. Munro, John and Fitzroy, Almeric C., eds., Acts of the Privy Council of England. Colonial Series, 6 vols. (London: His Majesty's Stationery Office, 1908–1912), 5:391–92Google Scholar. Also see the Dartmouth Papers, D (W) 1778/II/832 and 834, the cabinet minutes for February 16 and 19, respectively.

43. According to a note by John Pownall. (See HMC, Dartmouth, 2:199; also the Dartmouth Papers, D (W) 1778/II/839). Dartmouth wrote Hutchinson that “the King has thought fit to lay the whole matter before both Houses of Parliament” on March 9, 1774. TNA, PRO/CO 5/763, fo. 54; also printed in Davies, ed., Documents, 8:61.

44. For the message and list of supporting papers see Simmons and Thomas, eds., Proceedings, 4:26–31 (the House of Lords) and 4:31–35 (the House of Commons).

45. For the committee report presented to the House of Lords, as chaired by the Earl of Buckinghamshire, see April 20, 1774, in Simmons and Thomas, eds., Proceedings, 4:240–59, which began with disturbances in Massachusetts dating from 1764 through the Tea Party and its aftermath, noting that Governor Francis Bernard had warned as early as October 1765, with the Stamp Act crisis, “that the real Authority of the Government is at an End.” The committee had been formed on March 30, as soon as the House of Lords passed the Boston Port Bill, and in anticipation of debates over the Massachusetts Government Bill.

46. As excerpted from the Boston Port Act (24 George III c. 19) and the Administration of Justice Act (24 George III c.39) in Pickering, ed., Statutes, 30:336–40 and 367–71, respectively. The Massachusetts Government Act (24 George III c. 45) and the New Quartering Act (24 George III c. 54) are also in ibid., 381–90 and 410, respectively. The Administration of Justice Act had obvious connections to the thinking behind a resurrected 35 Henry VIII c. 2. Whereas advocates of utilizing the earlier act were driven by a fear that there would be no convictions by local juries of colonists being tried for crimes against the crown, advocates of the latter were driven by the fear that no imperial administrator accused of a capital offense could expect to be acquitted by a colonial jury. The Quebec Act, passed in June, was linked in colonial minds with these four laws, but not in the minds of the king and his supporters in Parliament; a commentary in itself on their failure to imagine the extent of colonial anxiety and resentment (See ibid., 549–54) (24 George III c. 83). Donoughue, British Politics, 51, considered this legislative approach “in its implications much more severe and hazardous” than that posed by the abandoned executive action because “it meant accepting the Tea Party as a general colonial challenge to British sovereignty, putting the question before the legislative assembly of the realm, and proposing radical legislation which must deal broadly with the many sources of trouble and grievance and which would apply to all the inhabitants of Massachusetts.” Even so, if the most vigorous legal action had been pursued—a broad interpretation of the treason statute as applied by an English judge and jury to accused colonists—the implications for both Britons and Americans were even more far reaching, as hinted at most notably by John Dunning during later debates in the House of Commons.

47. So reported the Earl of Shelburne to the Earl of Chatham (Pitt) in a letter of April 4, 1774, about debates in the House of Lords on March 28; as taken from Simmons and Thomas, eds., Proceedings, 4:146.

48. See Shelburne's comments at ibid.

49. Thomas Hutchinson recorded in his diary that on a July 5, 1774 visit, John Pownall told him that “his plan was, to pass the Port bill, and to send over Adams, Molineux, and other principal Incendiaries; try them, and if found guilty, put them to death.” He also said that initially the cabinet had seen it that way, too, and that “the Lords of the Privy council actually had their pens in their hands, in order to sign the Warrant to apprehend them;” that is, until “Lord Mansfield diverted it by urging the other measures.” In Hutchinson, ed., Diary, 1:183. Mansfield, in an August 14 visit, left a different impression of what had happened. Their pens may have been in their hands, as Pownall had said, but they were persuaded by Thurlow and Wedderburn that there was too much “doubt whether the evidence was sufficient to convict them” although Mansfield himself felt that “things would never be right until some of them were brought over” (see ibid., 219–20).

50. From debates of April 15, 1774, as gathered in Force, Peter, ed., American Archives, 9 vols. (Washington, D.C.: M. St. Clair Clarke and Peter Force, 1837–1853)Google Scholar, 4th series, 1:114. Simmons and Thomas, ed., Proceedings, 4:162–64 and 174–75 went to two other sources for this speech, neither of which included this particular phrase. Force did not list his source, although it was most probably from a London newspaper that had been reprinted in the colonies. See, too, Edmund Burke in the House of Commons, March 25, 1774, where he tried (and failed) to argue that members of the ministry themselves erred in setting a punitive policy when they could not even decide among themselves whether there was a rebellion or just rioting and civil disobedience. Posing a question that a lawyer might well ask in court, he wondered how the ministry could settle on a punishment when it was not even sure of the crime. See Simmons and Thomas, eds., Proceedings, 4:124 and 136 (two different accounts).

51. During debates in the House of Commons, in ibid., 332 and 337, respectively, with a different version at 374–375. He tied in 35 Henry VIII c. 2 as well.

52. Chatham to Shelburne, March 20, 1774, in Taylor, William Stanhope and Pringle, John Henry, eds., Correspondence of William Pitt, Earl of Chatham, 4 vols. (London: John Murray, 1838–1840)Google Scholar, 4:337.

53. An unrealistic expectation, encouraged by Dartmouth the same day that he was writing Gage's instructions as Hutchinson's replacement. See Dartmouth to Hutchinson, April 9, 1774, in TNA, PRO/CO 5/765, fo. 297.

54. Note from George III to Lord North, February 4, 1774, in Sir Fortescue, John, ed., The Correspondence of King George the Third from 1760 to 1783, 6 vols. (London: Macmillan, 1927–1928), 3:59Google Scholar.

55. Gage could be perceptive and had predicted as early as 1768 that protesting colonists would escalate their protests against imperial authority if their demands were not met, starting with denying Parliament's authority and, if thwarted, that of the crown as well, until they had the independence they really wanted. See his letter to the secretary at war, Lord Barrington, of March 10, 1768, in Carter, Clarence Edwin, ed., The Correspondence of General Thomas Gage, 2 vols. (New Haven: Yale University Press, 1931, 1933), 2:450Google Scholar.

56. Copies of Dartmouth's April 9, 1774 charge to Gage can be found in TNA, PRO/CO 5, 763, fos. 77–81 and TNA, PRO/CO 5/765, fos. 298–307. Also printed in Davies, ed., Documents, 8:86–90; and in the outstanding collection assembled by Wroth, L. Kinvin, Nash, George H. III, and Meyerson, Joel, eds., Province in Rebellion: A Documentary History of the Founding of the Commonwealth of Massachusetts, 1774–1775, 4 vols. (Cambridge: Harvard University Press, 1975)Google Scholar, 1:1–7. Also see the list of 53 specific directives compiled on April 5, and given to Gage, many of which were simply unrealistic (ibid., 17–44). Gage's commission as governor of April 7, 1774 should be compared with those issued to William Phips in December 1691 and Hutchinson in November 1770. They have much in common and Phips, like Gage, was given executive authority in Rhode Island (and Connecticut, which Gage was not) in the event of war. See Massachusetts Royal Commissions, 1681–1774 (Boston: Colonial Society of Massachusetts, 1913), 6975Google Scholar (Phips), 164–73 (Hutchinson), and 174–183 (Gage).

57. For allusions to this unanswered question see Dartmouth's cabinet minute for April 7, 1774, in HMC, Dartmouth, 2:208; and Hutchinson's record of comments Wedderburn made to him months later, in Hutchinson, ed., Diary, 1:183, from Wedderburn's visit to Hutchinson on July 5. Therefore the move—that failed—to add special justice of the peace to Gage's duties as governor, which struck critics as contrived to achieve a political purpose.

58. Labaree, Boston Tea Party, 170–216; Donoughue, British Politics, 73–104; Thomas, Tea Party to Independence, 48–87; and Christie, Ian R., “The British Ministers, Massachusetts, and the Continental Association, 1774–1775,” in Resistance, Politics, and The American Struggle for Independence, 1765–1775, eds. Conser, Walter H. Jr., McCarthy, Ronald M., Toscano, David J., and Sharp, Gene (Boulder: Lynne Rienner Publishers, 1986), 325–57Google Scholar review British policy making during these months. For a more caustic assessment see David Ammerman, In the Common Cause (Charlottesville: University of Virginia Press, 1974), ixxi, 1–17Google Scholar. Dismissing the king and his ministers as deluded would be harsh; to suggest that they were living in denial seems more forgiving. Perhaps it takes a troubled mind to say: “It is to be expected that every artifice which has been hitherto used with so much success to keep alive a spirit of sedition and opposition in the people will be exerted in the present occasion to entangle and embarrass, but the King trusts that by temper and prudence on the one hand, and by firmness and resolution on the other, you will be able to surmount all the obstacles that can be thrown in your way.” So wrote Dartmouth to Gage on June 3, 1774. In TNA, PRO/CO 5/763, fos. 166–68; printed in Carter, ed., Correspondence, 2:163–66; also in Davies, ed., Documents, 8:122–25.

59. By order of the crown, April 9, 1774, in TNA, PRO/CO 5/765, fos. 294–96. Pardons for treason and murder had not originally been within his purview.

60. Gage to Dartmouth, June 26, 1774, printed in Carter, ed., Correspondence, 1:357; also in Davies, ed., Documents, 8:137.

61. Resolution of February 11, 1774, Mass House Journals, 50:146. Hutchinson refused to remove Oliver, so the House impeached him on March 7, after having drafted the formal articles on February 24. Hutchinson and his lieutenant governor, Peter's older brother Andrew, had already been impeached by the House, which had then demanded to the Privy Council that they be removed. Instead, the Privy Council endorsed their actions and removed Benjamin Franklin from his position as deputy postmaster for the colonies; an indirect way of punishing him for acting as agent for the Massachusetts House. For Wedderburn's scathing verbal assault on Franklin before the privy council on January 29, 1774, which stopped just short of accusing Franklin of treason, see Labaree, Leonard W., et al. , eds., Papers of Benjamin Franklin, 39 vols. (New Haven: Yale University Press, 1959)Google Scholar, 21:43–70. For months thereafter, Franklin thought that he would be charged with treason. See Franklin to Thomas Cushing, April 16, 1774 (ibid., 193). He was not being paranoid. See Dartmouth to Gage, June 3, 1774, in Carter, ed., Correspondence, 2:167.

62. See Alden, John Richard, General Gage in America (Baton Rouge: Louisiana State University Press, 1948)Google Scholar; but more especially on this point, see McCurry, Allan J., “The North Government and the Outbreak of the American Revolution,” Huntington Library Quarterly 34 (1971):141–57CrossRefGoogle Scholar; and Flavell, Julie, “British Perceptions of New England and the Decision for a Coercive Colonial Policy, 1774–1775,” in Britain and America Go to War, ed. Flavell, Julie and Conway, Stephen (Gainesville: University Press of Florida, 2004), 95115.Google Scholar

63. Text from the town meeting resolution of May 18, 1774, reprinted in Wroth, et al., eds., Province, 1:79–80. The solemn league circular, printed as a broadside, is reprinted in ibid., 453–55. It is discussed in Matthew, Albert, “The Solemn League and Covenant, 1774,” Colonial Society of Massachusetts. Transactions (1915–1916):103–20Google Scholar; and more expansively in Brown, Richard D., Revolutionary Politics in Massachusetts (Cambridge: Harvard University Press, 1970), 191–99Google Scholar, especially.

64. Sent May 13, 1774. Printed in Wroth, et al., eds., Province, 1:96.

65. Gage's proclamation was printed in Boston newspapers and is reprinted in ibid., 545–46. Looking back after the fact, Peter Oliver would call the solemn league treasonous, although he did not do so from the bench. See Adair, Douglass and Schutz, John A., eds., Origin & Progress of the American Rebellion: A Tory View (San Marino: Huntington Library Press, 1961), 104Google Scholar.

66. Gage was at least astute enough to recognize that some of his opponents had been “Impatient for the arrival of the Troops,” which would give more weight to their protests. “I am told that People will then speak and act openly, which they now dare not do.” Could there be a more interesting irony? Protest was easier–because arguments were vindicated–with the troops in town than not, (Gage to Dartmouth, May 30, 1774, in Carter, ed., Correspondence, 1:356), which is not to say that the break between Gage and the General Court was immediate and irreparable from the moment that he arrived. He refused to accept thirteen of the twenty-eight names that the house submitted to him for a new council but he did accept Thomas Cushing as the house speaker, and the house and council voted him an annual salary of £1300. Gage and his antagonists spent months in political maneuvering, eyeing each other warily, looking for just the right moment, just the right issue, before going into open opposition.

67. The resignations of the nine are included in Wroth, et al., eds., Province, 1:525–43.

68. Gage to Dartmouth, September 2, 1774, in Carter, ed., Correspondence, 1:369–75 (quotation from 182); reprinted in Davies, ed., Documents, 8:179–82.

69. Gage to Dartmouth, September 20, 1774, in ibid., 198.

70. See Gage to Dartmouth, September 25, 1774, in Carter, ed., Correspondence, 1:376–77.

71. “It is agreed that popular fury was never greater in the Province than it is at present, and it has taken its rise from the same old source at Boston, tho’ it has appeared first at a distance. Those Demagogues trust their safety to the long forbearance of Government and an assurance that they cannot be punished here.” Gage to Dartmouth, August 27, 1774, in TNA, PRO/CO 5/769, fos. 112–13. Printed in Carter, ed., Correspondence, 1:367, and Davies, ed., Documents, 8:165. For context see Taylor, Robert S., Western Massachusetts in the Revolution (Providence: Brown University Press, 1954)Google Scholar; Newcomer, Lee Nathaniel, The Embattled Farmers (New York: King's Crown Press, 1953)Google Scholar; Zuckerman, Michael, Peaceable Kinghdoms (New York: Alfred A. Knopf, 1970)Google Scholar; Pencak, William, War, Politics, & Revolution in Masachusetts (Boston: Northeastern University Press, 1981)Google Scholar; and Wroth, L. Kinvin, Province in Rebellion (Cambridge: Harvard University, 1976)Google Scholar, which serves as an introduction to the four volume set of documents noted in note 56 above.

72. Gage to Dartmouth, August 27, 1774, TNA PRO/CO 5/769, fos. 112–13.

73. Ibid.

74. With Worcester as his case study, Ray Raphael argued that by October 1774 “The British had lost all control of the Massachusetts countryside, and they would never get it back.” In The First American Revolution (New York: The New Press, 2002), 3.Google Scholar Also see Kevin Joseph MacWade, “Worcester County, 1750–1774: A Study of a Provincial Patronage Elite” (PhD diss., Boston University, 1973); Donald E. Johnson, “Worcester in the War for Independence” (PhD diss., Clark University, 1953); and the documents gathered in Lincoln, William, History of Worcester, From Its Earliest Settlement to Septermber 1836 (Worcester: Charles Hersey, 1862)Google Scholar; and Lovell, Albert A., Worcester in the War of the Revolution (Worcester: Tyler & Seagrave, 1876)Google Scholar.

75. Thurlow and Wedderburn to Dartmouth, December 13, 1774, in TNA, PRO CO5/160, fos. 48–49; also in TNA, PRO/CO 5/159, fos. 3–4; and printed in Davies, ed., Documents, 8:239–40.

76. Ibid. William Knox mentioned the proposed proclamation, which would offer pardons to those who took a loyalty oath by a certain date, “except such persons as should be named,” in a visit to Hutchinson of December 9, 1774. See Hutchinson, ed., Diary, 1:319.

77. Doing so could make “the Mother Country” appear afraid, which would make the colonists less reasonable, not more; at the same time, “I do not want to drive them to despair but to Submission.” How that might be accomplished he did not say, although he was not averse to sending a higher ranking general, such as Jeffrey Amherst, to replace Gage and take more decisive action. See his undated note to North, sometime in December 1774 (for the quotation), and one dated the 18th of that month, in Fortescue, ed., George III, 3:157 and 158, respectively.

78. Timothy Paine to Thomas Gage, August 27, 1774, in TNA, PRO/CO5/763, fos. 271–74 (quotations from fo. 273); also printed in Davies, ed., Documents, 8:166–68. Paine and Murray are on the list of councillors that Dartmouth sent to Gage on June 3, 1774, in TNA, PRO/CO 5/765, fo. 323.

79. Daniel Murray to John Murray, August 28, 1774, in TNA, PRO/CO 5/763, fos. 276–78 (quotation from fo. 278). Davies did not include this letter in his collection. Wilder was from Templeton, Holden from Princetown. According to Murray most of the men who descended on the family home were from there and Hubbardstown. For comments on the Murrays see Sargent, Winthrop, “Letters of John Andrews, Esq., of Boston, 1772–1776,” Publications of the Colonial Society of Massachusetts 1st series 8 (1865):346Google Scholar, letter of August 23, 1774.

80. See Thomas Oliver to Dartmouth, September 3, 1774, TNA, PRO CO 5/769, fos. 98–102. Oliver, Gage's lieutenant governor, agreed to resign from the Council when a crowd that he estimated at 4000 surrounded his house in the aftermath of the “powder alarm.” Fischer, David Hackett discusses these “First Strokes” in Paul Revere's Ride (New York: Oxford University Press, 1994), 4464.Google Scholar For an excellent case study of public pressure to force a behavioral change see Nicholas W. Gentile, “The Addressers’ Affair: The Struggle for Consensus Amidst the Revolutionary Transformation of Marblehead, Massachusetts, From the Coercive Acts to Lexington and Concord” (MA thesis, Brandeis University, 2007).

81. See Lincoln, William, The Journals of the Provincial Congress of Massachusetts in 1774 and 1775 (Boston: Dutton and Wentworth, 1838)Google Scholar, which includes records from the 1774 county conventions (pp. 601–60) as well as the 1774 provincial convention (pp. 1–74). For judges and lawyers who pledged their confidence in Gage during June and July, only to be intimidated into silence by August and September, see the resolutions in Wroth, et al., eds., Province, 1:560–70.

82. John C. Miller's characterization of this “Massachusetts Convention of 1768" remains interesting though somewhat overdone, in Sam Adams: Pioneer in Propaganda (Boston: Little, Brown and Co., 1936), 134–65Google Scholar. Brown, Richard D., “The Massachusetts Convention of Towns, 1768,” William and May Quarterly 3rd series 26 (1969):94104CrossRefGoogle Scholar provides a good contrast. More helpful on the deeper issues involved, pitting local law and authority against imperial law and authority, is Reid's, John PhillipIn a Defiant Stance (University Park: Penn State University Press, 1977)Google Scholar and In a Rebellious Spirit (University Park: Penn State University Press, 1979)Google Scholar.

83. Printed as a broadside, By the Governor. A Proclamation (Boston: M. Draper, 1774)Google Scholar.

84. See John Pownall's notes for a cabinet meeting of December 18, 1774 in D (W) 1778/11/1022, with Thurlow and Wedderburn condemning the Suffolk Resolves as “treasonous”; likewise the Continental Congress's endorsement of them. Note too North's frustration with Gage's apparent do-nothing approach. He may not have seen how Gage's indecision simply reflected that of the men who sent him there. Dartmouth, at the king's command, had forwarded Thurlow and Wedderburn information on the Massachusetts Provincial Convention as printed in Boston newspapers, noted in Gage's dispatches, and mentioned in a few other sources. They were to report to him their “Opinion, for His Majesty's Information, whether said Resolutions, and Proceedings are Acts of Treason & Rebellion, & whether the persons present, & acting in such Congress, may not be arrested & imprisoned as Traitors & Rebels.” January 20, 1775, in TNA, PRO/CO 5/250, fo. 180. Their February 2, response is in TNA, PRO/CO 5/159, fos. 46–48; with another copy in TNA, PRO CO 5/160, fo. 50.

85. Dartmouth to Gage, October 17, 1774, in HMC, Dartmouth, 1:365.

86. Message from the throne, November 30, 1774, in Simmons and Thomas, eds., Proceedings, 5:234. For this parliamentary session in context see Donoughue, British Politics, 201–65; and Thomas, Tea Party to Independence, 143–219.

87. Paine's August 27 letter to Gage was no. 33, and Gage's September 2, letter to Dartmouth was listed as no. 26, among nearly 150 written pieces of evidence that North submitted to the Commons on January 19, 1774. They are itemized in Simmons and Thomas, eds., Proceedings, 5:261–66. More papers were submitted on January 31 (ibid., 323) and February 2 (ibid., 341–42).

88. Dunning in the House of Commons, February 2, 1775, in ibid., 346. George Johnstone basically concurred with the position taken by Dunning, subsequently printed as Governor Johnstone's Speech (London: G. Allen, 1775). Unlike others who took a leading part in these particular debates, Johnstone, who had served in the Royal Navy and as governor of West Florida, was not a lawyer. In an earlier debate (December 16, 1774) Johnstone contended that Americans were like Englishmen who had protested the “unjust claims of the crown” made by Charles I as well as the “high doctrine of parliamentary supremacy” then current, and warned “that our rivals in Europe cannot be idle spectators in such a scene.” Simmons and Thomas, eds., Proceedings, 5:252.

89. Thurlow in the House of Commons, February 2, 1775, in ibid., 345–46. For another exchange between Dunning and Thurlow, in which Dunning distinguished between rebellion and treason while contending that the colonists were guilty of neither, see ibid., 413, debates on 10 February.

90. The act to restrain trade is at 15 George III c. 10, in Pickering, ed., Statutes, 31:4–11. Wedderburn helped draft it. Neither treason nor rebellion are alluded to; rather, the new policy is explained as necessary because of the “combinations and disorders” that “at this time prevail” in Massachusetts, New Hampshire, Rhode Island, and Connecticut. Trade privileges would be restored when “peace and obedience to the laws” had been re-established. The address to the king approved on February 10 is in Simmons and Thomas, eds., Proceedings, 5:357–58. North also carried another resolution, the famous “conciliatory” measure introduced on February 20 that was designed to get around the problem of Parliament taxing the colonies directly by allowing each of them to set up their own requisition system (see ibid., 432–51). The conciliatory measure passed the House of Commons a week later, and may have eased final passage of the New England Trade and Fisheries Bill, a week after that. It did not make it through the House of Lords and, revised, back through the House of Commons again until April.

91. Camden's response to Mansfield on February 7 and the dissentient (signed by Rockingham and Richmond as well as Camden) can be found in ibid.,389–90 and 382–83, respectively. Walpole, Last Journals, 1:425–16 contended that Mansfield and other members of a small “junto” had done all that they could to drive dissident colonists into rebellion so that they could have the excuse they needed to bring them down. But their plans backfired: they had not expected such inter-colonial unity, or so claimed Walpole.

92. From his speech in the House of Commons, February 6, 1775 (ibid., 5:372). He referred to Fort William and Mary in the harbor of Portsmouth, New Hampshire, where munitions had been taken by disguised local militiamen the previous December. Governor John Wentworth condemned the raid as “treasonable” in a proclamation of December 26, 1774, printed in Force, ed., American Archives, 4th series, 1:1069.

93. Thus Gage to Dartmouth, with nothing to support his misplaced hope but the hope itself, that fed off of the unrealistic expectations of the similarly inclined: “I am assured if she [Britain] continues firm, and a respectable Army is seen in the Field, that Numbers will declare themselves and join the King's Troops,” this, despite his own trepidation about marching too deep into the countryside. Letter of December 15, 1774, in Carter, ed., Correspondence, 1:387.

94. See, for example, the frustration expressed by Brigadier Hugh, Earl Percy, in letters from Boston of July 27 and September 12, 1774, in Bolton, Charles Knowles, ed., Letters of Hugh Earl Percy (Boston: Charles F. Goodspeed, 1912), 2829Google Scholar and 37, respectively; and Captain Glanville Evelyn of October 31, 1774 and February 12, 1775, in Scull, G. D., ed., Memoirs and Letters of Captain W. Glanville Evelyn (Oxford: James Parker and Co., 1879), 3840Google Scholar and 45–52, respectively.

95. See Dartmouth's orders to Gage of January 27, 1775, in TNA, PRO CO5/756, fos. 349–65, which set the stage for Lexington and Concord on April 19. Also printed in Carter, ed., Correspondence, 2:179–83.

96. Hutchinson wrote that Thurlow confessed to him as early as September 14, 1774 that he was not averse to making concessions to the colonists, “but in what way or manner this could be done without giving up all, he was utterly at a loss.” Hutchinson, ed., Diary, 1:261. That Dartmouth could even suggest to Gage the possibility of disarming all the people of Massachusetts, Connecticut, and Rhode Island shows how desperately unrealistic he could be. True, he did not order Gage to do it, but his even suggesting it indicates someone with a goal in sight and no clear way to reach it. See his letter to Gage of October 17, 1774 in TNA, PRO CO 5/765, fos. 342–46; also printed in Carter, ed., Correspondence, 2:173–75, and Davies, ed., Documents, 8:210–12.

97. Suffolk, Dartmouth's fellow cabinet member, wanted Gage out, saying “it is idle to do things by halves,” by the time of his note to Dartmouth of November 22, 1774, in HMC, Dartmouth, 1:370. Also see a more tactful Joseph Yorke (as befitted a diplomat) to his brother the earl of Hardwicke, February 7, 1775, in Add. Ms. 35371, fo. 3, BL.

98. Peter Oliver stands as an excellent example, voicing his enthusiasm for Gage after he arrived, and then, retrospectively, blaming Gage for the larger failure. See Oliver to Gage, July 30, 1774, in Wroth, et al. eds., Province, 1:589, and his look back in Adair and Schutz, eds., Origins and Progress, 114–15.

99. The king charged that “ill-designing Men” who had forgotten their “Allegiance to the Power that has protected and sustained them” had oppressed “Our loyal Subjects” in what had become “an open and avowed Rebellion.” Those men had done so “by arraying themselves in hostile Manner to withstand the Execution of the Law, and traitorously preparing, ordering, and levying War against Us.” Since they had been encouraged “by the traitorous Correspondence, Counsels, and Comfort of divers and wicked desperate Persons within this Realm,” the king's loyal subjects were reminded of their duty to assist in suppressing the rebellion, which included exposing “all traitorous Conspiracies and Attempts against Us,” thereby assisting the king's officers, “Civil and Military,” in bringing “the Traitors to Justice.” Printed in various colonial newspapers and reprinted conveniently in Brigham, Clarence S., Royal Proclamations Relating to America, 1603-1783 (Worcester: American Antiquarian Society, 1911), 228–29Google Scholar.

100. George III to North, November 18, 1774, in Fortescue, ed., Correspondence, 3:153. According to Horace Walpole, back in May 1774, when speculation was rife as to what the death of Louis XV would mean to Britain's geopolitical position, “nothing was more shocking than the King's laughing and saying at his levee “that he should as lief fight the Bostonians as the French.”“ Walpole, Last Journals, 1:346.

101. See Gage to Dartmouth, January 18, 1775, TNA, PRO/CO 5/765, fos. 160–62; also printed in Carter, ed., Correspondence, 1:390.

102. Dartmouth to Gage, January 27, 1775, where he suggested arresting leaders, and April 15, 1775, where he recommended combining prosecutions with pardons, TNA, PRO/CO 5/765, fos. 349–65 and 376–99, respectively; printed in Davies, ed., Documents, 9:37–41 and 97–102, respectively. Also see Dartmouth to Thurlow and Wedderburn, February 17, 1775, in TNA, PRO/CO 5/159, fos. 50–51; printed in Davies, Documents, 9:50–51, for the king's request that they draft a pardons bill. The bill that they came up with is in TNA, PRO/CO 5/160, fos. 54–61. “His Majesty being desirous of quieting the Minds of His Subjects in general,” they made provision for all those who took an oath before a duly authorized imperial official to obey the laws of crown and Parliament. Still, the cabinet advised that some should be excluded, such as those who served in the provincial congress or any who had attacked “His Majesty's forts or ships.” Cabinet meeting minute of March 30, 1775, in HMC, Dartmouth, 2:283.

103. See the broadside By His Excellency The Honorable Thomas Gage, esq; A Proclamation (Boston, June 12, 1775); satirized by John Trumbull in A New Proclamation (Hartford, 1775). As Alden, Gage, 263–64 noted, the proclamation did nothing for Gage's stature in the province. Gage's proclamation was widely reprinted in the colonies, as were criticisms and parodies of it—Trumbull's and others.

104. Dated October 4, 1774; printed in Davies, ed., Documents, 8:205, and Wroth et al., eds., Province, 2:1312. A copy would be included by Gage in the evidence that he sent to Dartmouth two weeks later. The Crisis, a London-based weekly, was just one of the publications to pick up on—and accept—this reversal. See, for example no. 16, the issue for May 6, 1775.

105. See “Political Observations, without Order; Addressed to the People of America,” dated November 14, 1774, reprinted in Force, ed., American Archives, 4th series, 1:976.

106. See a supposed “letter from Boston, to a gentleman in Philadelphia,” dated February 6, 1775, reprinted in ibid., 1216–17. Or as the author of “To the Freemen of America,” put it, moving to yet another level, “the man who refuses to assert his right to liberty, property, and life, is guilty of the worst kind of rebellion; he commits high treason against God.” Ibid., 335.

107. “Of Treason,” in The Most Elegant and Witty Epigrams (London: John Budge, 1618)Google Scholar, Book IV, 5.

108. Ramsay, David, The History of the American Revolution, 2 vols., ed. Cohen, Lester H. (Indianapolis: The Liberty Fund, 1990Google Scholar; orig. ed., 1789), 1:105–6, a phenomenon that Bernard Bailyn explored at greater length in Ideological Origins.

109. From a “gentleman in Massachusetts to his friend in London,” reprinted in Force, ed., American Archives, 4th series, 1:228.

110. The fifth of twelve resolutions, passed in Congress in October 1774. In Ford, Worthington Chauncey, ed., Journals of the Continental Congress, 34 vols. (Washington, D.C.: Government Printing Office, 1904–1937)Google Scholar, 1:69. Also see the July 1774 proceedings of the Pennsylvania convention, where delegates to the Continental Congress from that colony were directed to demand that 35 Henry VIII c. 2 be renounced by Whitehall and Westminster, in Force, ed., American Archives, 4th series, 1:419–20. For resolutions of a similar nature coming out of Delaware and South Carolina in the summer of 1774, see ibid., 668 and 525, respectively. And for the long-running dispute over whether the colonists enjoyed common-law protections see Hulsebosch, Daniel J., Constituting Empire (Chapel Hill: University of North Carolina Press, 2005)Google Scholar.

111. From the Virginia Convention's instructions to its delegates to the First Continental Congress, August 6, 1774, reprinted in Force, ed., American Archives, 4th series, 1:690.

112. Although the enterprising Stephen Sayre, an American living in London, came close in the fall of 1775. See Alden, John, Stephen Sayre: American Revolutionary Adventurer (Baton Rouge: Louisiana State University Press, 1983), 6796Google Scholar for the “bizarre proceedings” (p. 82) surrounding his arrest and brief confinement in the Tower of London. Sayre later brought suit for false imprisonment and won in a first jury trial, only to have the decision reversed by the jury in a second trial, after he had left England and been marked as a rebel (Howell, T. B., ed., A Complete Collection of State Trials, 33 vols. (London: T. C. Hansard, 1809–1826)Google Scholar, 20:1286–1316. There would be some interest in prosecuting the captured Ethan Allen but the implications for captured British soldiers proved more of a concern; therefore, Allen was treated as a prisoner of war rather than as a traitor, and was eventually exchanged. Five years later, Henry Laurens, captured at sea on his way to the Continent, would also spend time in the Tower. There were those who thought he ought to be tried as a traitor, even that late in the conflict. He was later exchanged for the Earl Cornwallis, who had been captured at Yorktown, and was allowed to leave England.

113. Parliament passed the habeas corpus bill in February 1777 and renewed it annually in each session through 1782, at which point it had been extended through January 1, 1783. It was then finally allowed to lapse. For the act as first passed see 17 George III c. 9 in Pickening, ed., Statutes, 31:212–13, with the final installment at 22 George III c. 2, in ibid., 34:1–2.

114. During debates in the Commons on February 10, 1777, as recorded in Cobbett, ed., Parliamentary History, 19:9.

115. For the classic instance of this problem, when treason was alleged against the American cause before there was an American nation, see Kiracoffe, David James, “Dr. Benjamin Church and the Dilemma of Treason in Revolutionary Massachusetts,” New England Quarterly 70 (1997):443–62CrossRefGoogle Scholar. For the loyalty oaths as they were formed and applied after the provinces left the empire to become states in the nation see the discussion and charts in Tyne, Claude Van, The Loyalists in the American Revolution (New York: The Macmillan Company, 1902)Google Scholar. Also see Chapin, Treason, 10–80.

116. Tucker, Robert C. and Hendrickson, David C., The Fall of the First British Empire (Baltimore: Johns Hopkins University Press, 1982)Google Scholar.

117. See Reid's Constitutional History (note 1, above), and the abridged version published under that same title in 1995; and Barbara A. Black, “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1976):1174–91, both of which should be contrasted with Goldsworthy, Jeffrey, The Sovereignty of Parliament (Oxford: Oxford University Press, 1999)Google Scholar. The pragmatic, ad hoc side to empire is revealed nicely in Mary Sarah Bilder's The Transatlantic Constitution (Cambridge: Harvard University Press, 2004)Google Scholar. But then, as Daniel Hulsebosch, Constituting Empire, 7, commented, ultimately the “constitution” of empire could only be “self-enforcing” if there was a basic transatlantic political consensus, and that consensus did not exist.

118. An oft-quoted statement, made by Major General James Robertson; repeated, for example, in Anderson, Troyer Steele, The Command of the Howe Brothers during the American Revolution (New York: Oxford University Press, 1936), 145Google Scholar.