HistoryJuly 28, 2015
An Empire on the Edge
On June 9, 1772, a group of Rhode Island colonists attacked and torched the HMS Gaspee, which had been dispatched to the area by the British to enforce maritime trade laws and prevent smuggling. As Nick Bunker describes in his book An Empire on the Edge: How Britain Came to Fight America, this event widened the steadily-growing divisions between the colonists and the Crown.
"Something must be done about Rhode Island, said Lord Rochford on August 15, the day after [William Legge 2nd Earl of] Dartmouth took up his new post [as the Secretary of State for the Colonies]. He used the weary, peevish tone that he always employed about America, but in the next sentence he admitted that he had no solution to offer. The hard line recommended by Lord Hillsborough struck him as unrealistic... Instead, he preferred to act cautiously against the Gaspee raiders, even when the lawyers branded them traitors guilty of treason.
"Throughout the American crisis, the British cabinet asked for legal advice about every decision they made. Invited to give his opinion, the attorney general, Edward Thurlow, quickly confirmed that burning the schooner was an act of war against the king. He called that treason plain and simple. Off the record, he added a rider: the culprits, he said, committed a felony five times worse than the riots against the Stamp Act. But while the law was one thing, the realities of power were quite another. If the men who destroyed the Gaspee were publicly deemed to be traitors, then Great Britain had to bring them to trial and hang them, and this was what made Lord Rochford so nervous. In the summer of 1772, the British dared not provoke a confrontation in America from which they might emerge as the loser...
"The legal opinion from Thurlow dealt not only with the nature of the offense, but also with the venue for a trial. No one in Whitehall trusted a jury in America to convict their fellow countrymen of crimes against the king. Witnesses would lie, if they testified at all, and the jurors would be intimidated into making an acquittal. The evidence of that was plain to see in the dispatches that arrived that year. Happily, however, the attorney general confirmed that an English court could try and hang the Gaspee raiders, and the cabinet gratefully took a piece of advice supported by what seemed to be the best authorities. Because it was a rare and special felony, a case of treason in Great Britain usually came for trial to Westminster Hall to be heard by the Court of King's Bench. This was what had happened after the 1745 rebellion, and why should the Gaspee raiders be treated any differently? Although the King's Bench rarely tried a colonial defendant, it certainly had the power to do so if an impartial jury could not be found near the scene of the crime. A judge in Westminster could send his writ anywhere in the empire if justice and the king required it. If this were not so, how could the Crown and Parliament be sovereign? The empire would not be an empire if the royal judges could not enforce the law throughout the king's dominions.
"Far more than merely legal subtleties, these questions went to the very heart of the divisions between the mother country and its colonies. By this time, the political debate in North America had far outgrown the narrow subject of taxation. Could the British be trusted to preserve any of the civil liberties the colonies had come to cherish? Or did they mean to do away with them all, including the right to due process of law? If this were so, Americans would have no alternative but the pursuit of independence; a chain of reasoning which, by the end of 1772, had come to seem compelling, in the light of the British response to the Gaspee incident. By choosing to bring the raiders home for trial — always assuming that they could be caught — North and his colleagues took these questions out of the realm of theory and made them topics for urgent, practical discussion in America.
"In the colonies, it was universally agreed that justice required a trial by a jury made up of one's peers, which could only mean men from the same town or county. It would be a flagrant breach of civil liberties to ship a suspect away to face a hostile English court, packed with loyal supporters of King George. And so, when the newspapers in America revealed that the British intended to do precisely that, the story caused outrage...
"Did the cabinet know how much trouble they might cause? Almost certainly not. At the meeting on August 20, the use of force was mentioned only in passing, and no one suggested revoking Rhode Island's charter. Instead they tried to make the Americans take responsibility for pursuing the traitors. Acting cautiously, or so they thought, the cabinet chose to appoint a commission of inquiry, led by Governor [Joseph] Wanton and composed of the senior judges from Massachusetts, New Jersey, and New York. Nobody would be arrested until the commission in Newport heard all the evidence the navy had gathered about the Gaspee's destruction.
"Off went John Pownall to draw up a dispatch to Rhode Island for Dartmouth to sign; but here again the British miscalculated. By the time the letter was ready, two weeks later, another report had arrived from Admiral Montagu, pointing the finger at the Browns of Providence. And so, when the dispatch left England in the middle of September 1772, it was couched in a tone of uncompromising harshness. It was, wrote Dartmouth, 'his Majesty's firm resolution' to punish the guilty men with the utmost severity. Worse still, the dispatch contained a threat to send the redcoats into Rhode Island to suppress any riots that might follow an attempt to arrest the raiders.
"Knowing little about the internal workings of Rhode Island, the inexperienced Lord Dartmouth meant the letter to be private, as though [Governor] Joseph Wanton were a royal appointee. Once again, a gulf of ignorance divided the two nations. A man elected to his post, a close friend of [Chief Justice] Stephen Hopkins's and a partner of the Browns, Wanton could not possibly keep the letter confidential. It appeared in print for every American to read and inflamed the situation still further. By the end of the year Britain's clumsy response to the Gaspee affair had backfired and helped to create the atmosphere of deep distrust that produced the Boston Tea Party."
An Empire on the Edge: How Britain Came to Fight America, by Nick Bunker (Knopf, p. 111-114)
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