So contended Edmund Burke in the House of Commons, during a May 1770 speech that ridiculed the government's American policy.Footnote ¹ 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.”Footnote ² 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.

Parliament's threat about extending the 1543 statute had been intended to make colonists think twice before they resisted imperial authority. Deciding, perhaps, that desperate times required desperate measures, Parliament had acted in response to a plea the king made when he opened a new parliamentary session in November 1768. George III used strong language about American affairs in his speech, much stronger than anything he had said during the Stamp Act crisis a few years before. Developments in Massachusetts over the previous months had proved most disturbing and he had authorized the dispatch of troops to Boston to quell what he considered the rising lawlessness there. Without mentioning either Massachusetts or Boston by name, he expressed alarm that dissidents in one of his colonies had committed “Acts of Violence and of Resistance to the Execution of the Law.” Of greatest concern, “the capital Town” of that “Colony appears by late Advices to be in a state of Disobedience to all Law and Government, and has proceeded to Measures subversive of the Constitution, and attended with Circumstances that manifest a Disposition to throw off their Dependance on Great Britain.”Footnote ³

The 1543 statute that Parliament turned to dealt with prosecuting inside the realm those accused of committing treason outside it. George III said nothing about treason in his address but there were those in Parliament who would not be so circumspect and at least one member of the Commons called dissident Americans “traitors.”Footnote ⁴ Although the rhetoric could be florid in the House of Commons, action came first from the House of Lords, which passed a resolution in December 1768 that the Commons endorsed the following February—the resolution later belittled by Burke. It stipulated that any colonist who could be charged with treason be transferred to England for trial if “sufficient ground” could be established for such action.Footnote ⁵

George III did not use the statute as Parliament recommended, either then or five years later, when again encouraged to do so. From 1768 on he had felt that something decisive needed to be done and he probably sympathized with those who believed that, even if no colonist was ever actually prosecuted under the statute, “it may awe, it may deter.” But there lingered an astute warning made by Constantine Phipps during debates in the Commons over any plan to try colonists in England for supposedly treasonous behavior on their side of the Atlantic: “These measures are more calculated to promote rather than to prevent rebellion.”Footnote ⁶ Sure enough, once apprised of what had transpired in Parliament the lower house of the Massachusetts General Court fired off a resolution condemning the prospective removal of Bay colonists to England “suspected of any Crime whatsoever” committed in the province. Massachusetts had its own treason statute, patterned after current English law, and the legislators there insisted that their courts had jurisdiction and all Bay Colony residents had the right to be tried by a jury of their peers. Any departure from that legal custom would be “highly derogatory of the rights of British Subjects.”Footnote ⁷

This was hardly the reaction of an intimidated group of men. They had grown accustomed to governing themselves with little interference from London. Despite the presence of a royally appointed governor, Massachusetts was virtually a self-contained political entity, with enough autonomy that what crown and parliament considered privileges, the people of the province considered rights. The basic question of sovereignty had not been answered, nor would it ever be, before Massachusetts ceased to be a colony in the empire and became a state in a new nation.Footnote ⁸

Americans who resisted imperial authority in the years leading to the Revolution were sometimes denounced as traitors—in Massachusetts and in some other colonies as well. But none would ever be formally charged in court with treason or prosecuted for it, in either Britain or America. In Massachusetts rebels took over virtually every town except Boston without firing a shot before the end of 1774. Ironically, they even turned the tables on imperial authorities, alleging that defenders of empire were the real traitors whereas they stood as true defenders of the law. They could do this, in part, because the proper constitutional relationship between mother country and colonies had not been precisely defined. They could do it in part, too, because treason under law was almost as poorly defined. Most important, they could do it because imperial administrators never found a way to apply the law of treason and force a change in American political behavior without bringing on the very confrontation they hoped to avoid.

* * *

The Massachusetts legislators’ response in July 1769 to the parliamentary resolution passed five months before scratched the surface of much deeper issues. Throughout these years of imperial crisis, threats of formal charges against dissident colonists would be juxtaposed uneasily with informal complaints about their behavior. The language of recrimination could be troublesome because using the word “treason” sloppily only served to confuse. Treason, after all, was in one sense a matter of law, an allegation that could lead to indictment, prosecution, and even execution in the event of conviction. But in another sense the cry of “treason” did not rise above the status of inflamed opinion, a street-corner accusation tossed about as an epithet. The informal political accusations of treason through 1774 did not carry over into formal legal charges—a tendency traceable for nearly a century, back to when Edward Randolph accused Bay colonists of being traitors, only to see the formal charges resulting from his investigations couched in more guarded language.Footnote ⁹

There are various reasons why formal charges did not follow the informal allegations. First and foremost was Whitehall and Westminster's reluctance to make threats, if threats—to be effective—eventually required action that they did not want to take. This tendency should not be dismissed as mere political cowardice. Rather, from the beginning of colonization the empire had been defended by its champions as reciprocal in nature, with all component parts benefiting by the association. Even more, it was talked of as a family, with a mother country at the center whose colonies on the periphery were her children. The king presided over all as a benevolent father.Footnote ¹⁰ Disputes, most advocates of empire on both sides of the Atlantic wanted to believe, could be settled amicably, to the satisfaction of all the family members.

Reasonable people knew that to allege treason could escalate tension, triggering rather than defusing a crisis. Likewise, policy makers in London realized that accusing colonists of treasonous behavior could tear at the notion of empire as loving family or harmonious community of interests. And yet both crown and Parliament found it difficult to resist using this potentially dangerous word whenever they believed that colonists, through their disobedience, had forgotten their subordinate place in the imperial hierarchy. Members of the general public also tossed the word about, for whatever momentary satisfaction that it gave them. However satisfying on the visceral level, that sort of labeling did not make for clear thinking on the subject.

That treason under law could itself be vague further complicated matters. Colonists facing a formal accusation of treason by authorities in London had to concern themselves with two statutes in particular: the one that Parliament passed in 1543, the proposed use of which Burke condemned in 1770, and another dating from much earlier, to 1352 and the reign of Edward III. As noted, the former dealt with how those accused of treason outside the realm could be tried within it; the latter dealt with the nature of treason itself. Parliament enacted the 1543 law to placate an increasingly paranoid Henry VIII. Seeing enemies everywhere he turned, he wanted them to know that they could not escape retribution should they betray him; or, more to the point, he wanted them to fear that they might be seized whenever he chose if he became convinced they intended to turn on him. Although Parliament did the king's bidding by passing the statute it also showed its ties to the common law tradition by wording the text carefully to say, in effect, that it was finding or clarifying the law rather than making it. For those who might ask whether the king had the authority to bring subjects accused of treason into the realm for trial, even if the behavior in question occurred outside the realm or in the crown's more extensive dominions, Parliament had now responded with an emphatic yes.

Of course Henry VIII and Parliament had had no thought of America; rather, they put those who lived in France and Ireland, as well as in Wales and Scotland, on notice. Equally important, the statute provided for “treasons, misprisions of treason, or concealment of treasons” as they might be defined in the future as well those that were already included within it. Cases could be heard either before the Court of King's Bench “or else before such commissioners, and in such shire of the realm, as shall be assigned by the King majesty's commission,” before a jury of “good and lawful men of the same shire.”Footnote ¹¹

Parliament intended that this 1543 statute clarify lingering issues, as had its statute in 1352. Parliament in that earlier instance attempted to bring within one encompassing law various notions of treason that had evolved through prior court rulings and royal decrees. The new law distinguished between high treason and petty treason, enumerating examples of each. The list of treasonable offenses could be added to by crown and Parliament as they saw fit. A grim fate specified under other laws awaited those traitors sentenced to die: they would be hanged, cut down while still alive, disemboweled, then drawn and quartered, with their estates subsequently confiscated by the crown.Footnote ¹² Treason by implication was a crime against the very kingdom and high treason meant the crown was threatened directly by that act, even if the king stood in no personal danger. Should the accused “compass or imagine the death of the King, or of our Lady his Queen, or their eldest son and heir,” the charge would be high treason, the penalty would be death, and only the king himself could grant a pardon. Likewise “if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir,” then high treason could be found to have occurred. Not surprisingly, “if a man do levy war against our lord the King in his realm” it was high treason; if he gave aid and comfort to the king's enemies, in the realm or out, it was high treason; if he became involved in counterfeiting, whether making the coins himself or carrying them into the kingdom, that too was prosecutable as high treason.Footnote ¹³

Numerous changes would be made during the coming years, adding offenses and then removing them again, depending upon what most concerned crown and Parliament at any given moment. There was, however, one constant. As William Blackstone would put it, the king on his throne, his ministers in Parliament, judges on the bench, and even, presumably, the public at large, all considered treason “the highest civil crime” that “any man can possibly commit.” Under law it would be far worse to make an attempt on the king's life and fail than to succeed in killing anyone else.

Because there could be no greater crime, because nothing was more threatening to the social order, Blackstone added this essential caveat: of all felonies, treason “ought to be the most precisely ascertained” because “if the crime of high treason be indeterminate, this alone . . . is sufficient to make any government degenerate into arbitrary power.”Footnote ¹⁴ Therefore the modifications made over time so that rules of evidence in a treason trial would be stricter than in any other legal proceeding; therefore too a defendant in a treason trial being entitled to counsel—an anomaly even as late as the American Revolutionary Era. By then, to be convicted of waging war against the crown—the most obvious form of high treason—required the testimony of two reliable witnesses to an overt act.Footnote ¹⁵ But an overt act could be construed broadly, including putting plans to paper, if those plans were published. The “bare words are not the treason,” Blackstone pointed out; rather, it was “the deliberate act of writing them” that could send their author to the gallows.Footnote ¹⁶ Moreover, as William Hawkins, an earlier commentator on English law, noted, “not only those who directly rebel against the King, and take up Arms in order to dethrone him, but also in many other Cases, those who in a violent and forcible Manner withstand his lawful Authority, or endeavour to reform his Government, are said to levy War against him.”Footnote ¹⁷ It would be this notion of treason that proved potentially problematical for the civilly disobedient in 1774 Massachusetts.

Ultimately, despite the many additions to and revisions of the 1352 statute, the underlying theory—that to threaten the crown was to threaten the kingdom and that there could be no more dangerous crime than that—had not changed in four centuries. Those who had traitorous notions had been duly warned. The criminal law in general, not just the crime of high treason, was essential for social control. “The ideology of the law was crucial in sustaining the hegemony of the English ruling class,” argued Douglas Hay, and, in a society with a small army and no police force in the modern sense, artful persuasion had to be relied upon more than brute force.Footnote ¹⁸ For the social order to be preserved, Britain's leaders believed, fear had to be combined with respect; hence the legal system as it had evolved and its myriad capital offenses as they continued to structure it.

High treason was rarely invoked in the eighteenth century but it remained a tool in the astute jurist and politician's legal kit. They wanted subjects of the crown, wherever they lived—close at hand in the realm or in far-off dominions—to understand that there could be nothing more serious than an attack on the king. They kept vague what constituted an attack. It did not require an attempt to literally assassinate the king. For some, an attack through the press that impugned his character, though technically only seditious libel, no longer a capital offense, was still somehow treasonous. Even if the law would not sustain a libel as an act of treason, a judge might still interpret talk of displacing monarchy as treasonous, or instigating a riot against royal authority as treasonous. That same judge might interpret any attempt to interfere with law enforcement as a form of treason, because all laws were passed in the king's name and all Britons—and colonists—were the king's subjects. Judicial discretion could allow for very broad interpretations, all the more likely if encouraged by crown and Parliament. Consequently, the noted jurist and chief justice of King's Bench, Matthew Hale, warned against trying to win a case by turning to “constructive” treason—in essence, imputing treasonous intent to an act not yet committed, such as “compassing” the king's death, or to an act deemed treasonous even though not covered by a specific statute. Sage advice, that, but crying “treason” was difficult to resist when crisis loomed and traitors were imagined behind every tree.Footnote ¹⁹ Using high treason as a political bludgeon to induce loyalty and reduce civil disobedience could prove tempting. But threat of punishment had to be made judiciously to be effective; applying the full weight of the law in a capital offense such as high treason had to be even more selective.

* * *

Imperial authorities understood the need to proceed carefully with law-breaking colonists if they were to avoid making the bad even worse. That understanding is shown perfectly with the Gaspee affair. The HMS Gaspee, a schooner posted in Rhode Island waters to help enforce the Navigation Acts, had been attacked and sunk in the Providence River above Narragansett Bay. It ran aground at low tide the afternoon of June 9, 1772 and just after midnight the crew heard boats approaching in the darkness. Orders were shouted from the Gaspee for the barely visible boats to stand clear but they kept coming. Shots were exchanged and boarders with blackened faces subdued the sailors and their wounded commander, Lieutenant William Dudingston. The boarders loaded Dudingston and his crew into their boats, rowed them ashore, and departed before dawn. The dazed crew watched as the Gaspee burned to the waterline, destroyed completely.Footnote ²⁰

The crew reported what had happened to Admiral John Montagu, Boston-based commander of His Majesty's naval forces in North America. Montagu sent copies of what they wrote, along with his own report and a statement by Rhode Island's Governor Joseph Wanton, to the admiralty and to the secretary of state for American affairs, the earl of Hillsborough. Hillsborough in turn passed those papers on to Attorney General Edward Thurlow and Solicitor General Alexander Wedderburn, asking if they thought the incident an act of high treason. Thurlow and Wedderburn responded just a few days later that, yes, indeed, the attack on the Gaspee constituted high treason.Footnote ²¹

If ever the time had come to use 35 Henry VIII c. 2, the 1543 statute, this was it. However Whitehall decided not to and Westminster did not complain about its choice. Instead, the king appointed a five-man commission to investigate the incident. The commissioners came from the colonies, not Britain, and included Governor Wanton. He was not a lawyer and he most likely did what he could behind the scenes to sabotage the proceedings. The commission held hearings in both January and June of 1773 but could do nothing unless a Rhode Island grand jury handed down indictments or the colony's attorney general acted on an information to provide the commission with a list of accused to stand trial. None of that happened. If it had, the commissioners could have recommended a trial venue in either England or the colonies. Some witnesses did come forward and named names but others provided alibis for those that they had identified. Blocked at seemingly every turn, the commission gave up; no one was ever indicted, much less prosecuted. To this day the identity of those who destroyed the Gaspee is a matter of few facts and much supposition.

A pattern had been established in London's reaction to the Gaspee's sinking that did not change before the shooting war started in April 1775. It would be seen again at Whitehall and Westminster during the early months of 1774, in response to the Boston Tea Party, and yet again as the year drew to a close, in response to resistance to new parliamentary legislation. Imperial authorities hemmed and hawed, seeking some solution short of the use of force to solve their growing problems, around the American colonies in general but within Massachusetts in particular. As in 1772, information would be gathered and sent to London. It would be submitted to Thurlow and Wedderburn, just as before. They would rule that high treason had been committed and that the king had the option of pursuing trials in the colonies or bringing the accused over to England. Drawing on testimony provided by people on the scene, they would identify individuals who could be charged with treason and leave open the possibility of adding more names to that list. But the king declined to pursue individual lawbreakers through proceedings in English courts and chose, instead, to work primarily through Parliament and the legislative process. That he did is a reminder that the old approach of avoiding confrontation or seeking resolution through half-measures did not change—that what is usually depicted as a new hardline policy in 1774 was not really new or especially hard line.Footnote ²² Fear of pressing too vigorously, worsening matters by doing too much rather than too little, persisted. Inaction—or, perhaps more precisely, indirect action rather than direct action—charted the downward course of empire.

Even men of action proved reluctant to act. Admiral Montagu had warned after the Gaspee affair that “British Acts of Parliament never go down in America unless forced by the point of a sword.”Footnote ²³ He did not want to be the one to draw that sword from its scabbard. Still in Boston at the time of the Tea Party, he wrote London that he “could easily have prevented” the dumping of tea into Boston harbor the night of December 16, 1773, “but must have endangered the lives of many Innocent People, by firing upon the Town.”Footnote ²⁴ On this evening the Royal Navy did nothing, the admiral choosing discretion as the better part of valor. We can only wonder if the sailors and marines looking across the water on the scene at Griffin's wharf had to resist an urge to intervene. A frustrated crown and Parliament would afterward choose to punish the innocent—innocent in strictly legal terms, that is—along with the guilty, but politically, not militarily, without shedding blood.

A harried Governor Thomas Hutchinson warned London not to expect Massachusetts to punish the instigators of the Tea Party. To confess as much must have added to his deepening sense of alienation and failure. He presided as the colony's chief executive in name only. Acting governor with the departure of Francis Bernard in 1769, then governor in his own right for three years, Hutchinson had seen his ability to lead slip away, leaving him with titular authority but little real political power. His council more often sided with the lower house of the legislature and against him. The Boston town meeting operated almost as if it ran a self-governing city–state. Hutchinson had foolishly engaged in constitutional bear-baiting with his opponents in the council and house, which further diminished his stature.Footnote ²⁵ Exhausted and exasperated, he requested leave in London to explain himself there. But with one crisis following the next he would not get away until many months after the Tea Party.Footnote ²⁶

Shocked as some of his council members were by the crowd action on December 16, they were not going to press to identify and prosecute the offenders. They were also leery about offering rewards to those who might step forward and identify the participants. Nor were they very encouraging about the province's attorney general investigating and presenting evidence to a local grand jury for possible indictments.Footnote ²⁷ Increasingly pessimistic, Hutchinson did not object publicly to their do-nothing position. He thought that some of those grand jurors had themselves been complicit in the unrest. “I see no prospect of persuading the people who disapprove of these proceedings, to support me in my opposition to them, unless they could be sure of protection,” a promise that he could not make, Hutchinson wrote resignedly in a letter to the Earl of Dartmouth, Hillsborough's successor as secretary of state for American affairs.Footnote ²⁸ In other words, if there was going to be a decisive response it would have to come from London.

News of the Tea Party reached a stunned king and his ministers before the end of January 1774. Over the coming weeks, Lord North and other cabinet members, with a few advisers added, held meetings late into the night, trying to set a course of action. Among them only Dartmouth had been sympathetic to some American grievances but even he began to think that London had been too permissive and too forgiving of past misbehavior.Footnote ²⁹ “It is the King's firm Resolution, upon the unanimous Advice of his Confidential Servants, to pursue such measures as shall be effectual for securing the Dependance of the Colonies upon this Kingdom” and, he sought to reassure a worried Hutchinson, support and protect “His Majesty's faithful Servants” in the Bay Colony.Footnote ³⁰

On that same day Dartmouth sent a long note to Attorney General Thurlow and Solicitor General Wedderburn, enclosing letters from Boston and enumerating twenty-two “facts” about the sequence of events leading up to the Tea Party. He began his chronology in early November 1773, when town leaders urged fellow Bostonians to protest the Tea Act and boycott East India Company tea at gatherings that took place out-of-doors around an elm that locals called the Liberty Tree, as well indoors at Faneuil Hall in the regular town meeting. He included, too, the attempt of men appointed by the town to pressure Richard Clarke, one of the agents authorized to sell company tea, to resign his commission. After Clarke and others refused they were warned that “they would be voted enemies to their country and must expect to be treated as such.” One justice of the peace who tried to disperse a crowd that had pushed into Clarke's house fled after being “hooted” at and struck.Footnote ³¹ Two weeks later a crowd once again descended on Clarke's house. Clarke barred the door, so they broke his windows. Hutchinson tried to get his council to do something; it would not. It advised him to rely on justices of the peace and sheriffs to keep the peace but he (like members of his council) knew that those men were either intimidated by opponents to the tea's landing or sympathized with them.

When the Dartmouth, first of three tea ships en route, arrived, town leaders told the captain that he should not land any tea, pay a duty on it, or attempt to leave the harbor with his cargo. Volunteers offered to watch the Dartmouth and report anything that violated those instructions. So things continued until all three ships had docked. Town leaders kept up their harangues and Hutchinson watched it all, seemingly powerless.

As he worked his way through the chronology, Dartmouth mentioned some thirty men by name. He then posed two “queries” to the king's law officers: “Do the acts and proceedings stated in the foregoing case or any of them amount to the crime of high treason?” and “If they do, who are the persons chargeable with such crimes and what will be the proper and legal method of proceeding against them?”Footnote ³² When Thurlow and Wedderburn had not replied within five days Dartmouth pressured them to make haste.Footnote ³³ They submitted their rather terse report the next day, February 11, 1774.

“We are of opinion that the Acts and Proceedings” related by Dartmouth and reported in the correspondence from Boston “do amount to the Crime of High Treason,” they concluded, “namely to the levying of War against His Majesty.”Footnote ³⁴ The unlawful meetings where people were called upon to obstruct an act of Parliament, the attempts to prevent company agents from selling a commodity under parliamentary license, the destruction of the tea itself, all constituted treasonous activity. Thurlow and Wedderburn reduced Dartmouth's thirty names to just eight, a list that included Samuel Adams and John Hancock, William Molineux, and Dr. Joseph Warren.Footnote ³⁵ The total could easily be expanded, they noted, to include other town leaders and even members of the General Court. As to what Dartmouth should do to bring the traitors to justice, Thurlow and Wedderburn tossed the decision back on him.

Beyond that they had nothing more to say, which became all too clear when Dartmouth asked for additional directions. He wanted their opinion on whether the king had the authority to send over commissioners to make inquiries or, even more, whether he could grant those commissioners “full Powers of Magistracy” so that they could exercise “such Powers” as those “now exercised by the Ordinary Civil Magistrates within the Colony?” Thurlow and Wedderburn apparently did not respond.Footnote ³⁷ They obviously preferred that cases connected to the Tea Party be tried in Massachusetts, not England, so they did not, notably, fall back on the 1543 treason statute. Implicitly, they were admonishing the king and his ministers to balance their desired outcome with any perceived legal impropriety or violation of fundamental rights.

If John Pownall, undersecretary to Dartmouth, is to be credited, Thurlow had had his fill of legal advice seekers. He and Wedderburn passed by Pownall after a cabinet meeting at Dartmouth's office. Pownall asked if it had been decided to prepare warrants for the arrest of Adams, Hancock, and others. To Pownall's question “is it done” an irritated Thurlow snapped, “No, nothing is done. Don’t you see that they want to throw the whole responsibility of the business upon the Solicitor-General and me,” he complained, “and who would be such damned fools as to risk themselves for such—fellows as these.” With that he and Wedderburn “walked off, and the project was dropt.” Thurlow was dismissively coarse and abrupt, but then he was notorious for being both.Footnote ³⁸

Perhaps Thurlow did not like being pressured to find a legal solution to what he may have thought essentially a political problem, a solution he was expected to work out with Wedderburn. The two were not close, despite their being called North's “pillars of Jachin and Boaz.” They had once been rivals in the House of Commons and Thurlow, formerly solicitor general, demanded the post of attorney general so that he would not have to serve under Wedderburn.Footnote ³⁹ If Thurlow thought the appointment of commissioners to investigate the Tea Party would end up with the same result as the Gaspee inquiry—no convictions, no prosecutions, not even any indictments—he left no record of saying. But it is quite possible that he foresaw that the king would turn to Parliament for a solution anyway, and that he and Wedderburn, as members of the House of Commons, would address the issue there, among hundreds of other members of Parliament rather than as two lawyers acting alone. Not only that; they would lend a hand in drafting the legislation that resulted.Footnote ⁴⁰

Whether it was because of Thurlow's reluctance or for some other reason, the king and his ministers chose not to act independently of Parliament.Footnote ⁴¹ The Privy Council, which had reviewed the materials gathered by and for Dartmouth and even interviewed witnesses, bowed out of the Tea Party business on February 19, leaving policy to the crown and Parliament, as advised by the attorney general.Footnote ⁴² The cabinet decided on February 28 that, based on the evidence presented to it by that point, “the charge of high treason” could not be sustained and everything should be laid before Parliament, with a recommendation that the port of Boston be closed.Footnote ⁴³

In a special message sent to the Lords and the Commons on March 7, 1774, George III expressed grave concerns about American conditions, a message that acted as a précis for well over 100 documents that he presented to both houses for their consideration. In some ways the king sounded less disturbed than he had in his speech from the throne in November 1768. Unlike then, he and the ministers who wrote the brief memorandum did not accuse disputatious colonists of seeking independence. They also scrupulously avoided the word “treason.”

Parliament dutifully passed four laws that would come to be known as the “coercive” or “intolerable” acts, collectively designed to reform as well as punish. Debates took place over two months: March through May. In April, the Earl of Buckinghamshire essentially did for the House of Lords what Dartmouth had done for Thurlow and Wedderburn in February: he compiled a long chronology to demonstrate the unconstitutional, illegal, and even rebellious behavior of disobedient Americans.Footnote ⁴⁵ For most peers he was preaching to the choir. What became the Boston Port Act made it through both houses first, followed by an Administration of Justice Act, then a Massachusetts Government Act that abrogated elements of the 1691 charter, and, finally, a new Quartering Act. The first two in particular opened with harsh language, complaining of “dangerous commotions and insurrections” in Boston that were in “defiance of his Majesty's authority, and to the utter subversion of all lawful government.”Footnote ⁴⁶ None of the four, however, accused the town or any individual residing in it of committing treason.

Nevertheless, the word “treason” had become part of the debates. The Earl of Mansfield, who, in addition to sitting in the House of Lords, presided as chief justice on the Court of King's Bench, contended that what had happened in Boston was an “overt act of high treason, proceeding from over-lenity and want of foresight.”Footnote ⁴⁷ He thought it gave Parliament the perfect opportunity to finally get tough and that Americans would surely back down. But even among supporters of the ministry and its “new” policy there were those who did not want Americans treated as traitors; they preferred the term “commotion” to “rebellion” when characterizing their behavior.Footnote ⁴⁸ Others, by contrast, wanted an even tougher stance. They would have liked to see arrests and prosecutions, possibly even hangings, which, as they saw it, were the only way to insure that what Mansfield thought should happen, did happen.Footnote ⁴⁹

Opposition leaders, with no clear alternative policy of their own and being too few in number to stop the government's plan, offered dire predictions. During debates in the House of Commons Isaac Barré expressed disdain for the purported proof of American rebelliousness contained in the papers submitted for parliamentary perusal. He condemned the Administration of Justice Act for its presumption that a servant of the empire could not obtain a fair trial in the colonies. The verdict in the Boston “massacre” trial of Captain Thomas Preston, he contended, was proof enough that the new law was based on a groundless fear. He challenged Thurlow and Wedderburn to “declare, if they can, that there is upon” the table “a single evidence of treason or rebellion in America.” He maintained that they knew that “there is not one, and yet are proceeding as if there were a thousand.”Footnote ⁵⁰ Former Solicitor General John Dunning raised the question again during debates over what became the Massachusetts Government Act. To sustain talk of treason, he emphasized, there had to be traitors and yet there had been no prosecution, not even an “inquiry for discovery of these supposed traitors.” Determined to drive his point home, he linked the government act to the also-pending Administration of Justice Statute. “The first of those Bills” would “provoke” the people of Massachusetts “into rebellion;” the second, he charged, would “authorize people with impunity to cut their throats when they find them in that condition.”Footnote ⁵¹

Dunning painted a dramatic portrait but it probably left most listeners unmoved. William Pitt, the “Great Commoner,” now Earl of Chatham, confided to his political ally in the House of Lords, the Earl of Shelburne, his worry that “the fate of Old England” was at stake, “not less than that of the New.” A “fatal desire” to “crush the spirit of liberty among the Americans” had “taken possession of the heart of government.” Should the program pushed through Parliament be implemented, he sighed, “one need not be a prophet to say, England has seen her best days.”Footnote ⁵²

* * *

The program would indeed be implemented, but not during the tenure of Governor Thomas Hutchinson. General Thomas Gage replaced him as the man that crown and Parliament expected to restore control. Hutchinson unrealistically hoped that Gage would be in Massachusetts temporarily; just long enough to make a more compliant colony, to which he would return.Footnote ⁵³ Gage gave the impression that he would succeed where others had failed because he had the firmness they lacked. George III had been looking for just such a man. They met on February 4, before Dartmouth had even approached Thurlow and Wedderburn for their legal opinions about the tea affair. Gage told the king that the colonists “will be Lyons, whilst we are Lambs but if we take the resolute part they will undoubtedly prove very meek.”Footnote ⁵⁴ He thought four regiments would suffice. Within a matter of months he would have liked ten times that number. For all of his years living in the colonies, for all his wartime American service and experience as a peacetime commander thereafter, for all his warnings about the autonomy-seeking tendencies of the people around him, he miscalculated and performed no better than the disgraced Hutchinson.Footnote ⁵⁵

And yet he may have been thrust into an already impossible situation, give the ministry's contradictory expectations. On the one hand, as “Our Captain General and Governor in Chief,” the king expected him to keep the peace, by force if necessary, “should the madness of the people” and the “timidity or want of strength of the peace-officers require it.” On the other, the king trusted “that such necessity will not occur” and that he ought to use “mild and gentle persuasion to induce their submission.” He was supposed to work in concert with the council and house; at the same time, he was expected to pressure them into discontinuing the practice of hiring agents to speak for them in London—something that Hutchinson had been instructed to do in 1771. Hutchinson failed; there was no reason to think that Gage would be any more successful. With Thurlow and Wedderburn's February 11 finding passed on to him as part of his instructions, the king authorized Gage to investigate and see to the indictment, arrest, and prosecution before a Massachusetts—not an English—judge and jury for those accused of committing treasonous acts. Nonetheless he added this caveat: if the “prejudices of the people” made conviction unlikely, “however clear and full the evidence might be,” then it “would be better to desist from prosecution, seeing that an ineffectual attempt would only be triumph to the faction and disgraceful to government.”Footnote ⁵⁶

The king and his ministers could not even be sure if Gage had the authority as governor to use regular troops against civilians in a situation short of civil war, unless a justice of the peace read the Riot Act. Nothing, apparently, had been done to clarify such issues, despite the “massacre” four years before.Footnote ⁵⁷ But then nothing better illustrates the muddled, even delusive thinking that went on at Whitehall and Westminster.Footnote ⁵⁸ Whether to arrest suspects or not; prosecute the accused, or not, would all be up to Gage, the military officer now acting as a civilian official. If arrests could be safely made, if convictions could be expected in trials, he would not have been sent to Massachusetts in the first place. But the king's men could not admit to themselves that they did not know what to do.

Before he left London for Boston, Gage had had his authority as governor extended to include being able to grant pardons for all capital offenses.Footnote ⁵⁹ If Whitehall and Westminster hoped that he would thereby feel emboldened to press for treason prosecutions, they would soon be disappointed. Gage passed Dartmouth's February 5 narrative, with Thurlow and Wedderburn's February 11 report, along to provincial Chief Justice Peter Oliver. Oliver advised him “that the times are not yet favourable for prosecutions and that those matters should be delayed.”Footnote ⁶⁰ Oliver had bigger concerns, starting with his own position on the bench. He faced condemnation by the Massachusetts house for taking a crown salary. Indeed, in a neat reversal of accusation that carried with it implications for political legitimacy, the Massachusetts house impeached Oliver and called for his removal, declaring him “an Enemy to the Constitution of this Province” whose actions were a “Perversion of Law and Justice” and “obnoxious to the Good People of this Province.”Footnote ⁶¹ With Oliver the one superior court justice who resisted pressure to renounce a crown salary, Gage knew not to expect any firmness there. Even Oliver would eventually wilt before public pressure. As a military man, Gage most likely would not have looked to a court to lead the way, regardless. That he was appointed governor at all was an indicator that the ministry anticipated a showdown on the battlefield, and not in a courthouse, in any event.Footnote ⁶²

Even so, at almost the same moment that Oliver steered Gage away from court, Gage leveled his own treason accusation. It came in response to the “solemn league and covenant” sent out to towns around the province by the Boston Committee of Correspondence on June 8. The committee called for a complete boycott of British goods until Parliament repealed the Port Act. Not everyone in the town meeting had wanted to push this hard but the boycott was endorsed after the fact and the town had already condemned the Port Act for its “Impolicy, Injustice, Inhumanity and Cruelty.”Footnote ⁶³ As Samuel Adams wrote in a circular sent to other colonies, the people of Boston “have been tryed” and “condemned” but “without their having been accus’d of any crime” because no “crime is alleged in the Act.”Footnote ⁶⁴

To Gage what set the “solemn league” apart from the previous circular or the town's formal condemnation was its obstructionist intent: its using boycott as a political tool to force Parliament to repeal one of its laws. In a public proclamation Gage condemned the Boston Committee of Correspondence for its “scandalous, traitorous, and seditious letter, calculated to influence the Minds of the People.” He expected magistrates throughout the province “to apprehend and secure for Trial” anyone printing or passing out the call for the solemn league or “aiding” or “abetting” the circulation of “the aforesaid or a similar Covenant.”Footnote ⁶⁵

It was a sweeping call for enforcement of the law and utterly ineffectual. All Gage did was to cause some who thought the Boston committee had gone too far to believe that the governor had in turn overreacted and they ended up supporting the committee. Admittedly, the solemn league failed to achieve its political purpose, as did virtually every attempt by the colonists after the Stamp Act crisis to force a change in imperial policy by waging economic warfare. But it also showed that Gage could no more control the rising opposition than Hutchinson before him.

At this point Gage was still trying to make his way under the rules of the 1691 charter. It would be the end of August before he had in hand the new government act and the names for a new council as provided under it. By then he finally had a few thousand troops at his disposal and Boston, troop-free since 1770, was re-occupied. The soldiers’ arrival underscored his imperial Catch-22: he could do nothing without them, but whatever he attempted to do with them tended only to worsen his situation.Footnote ⁶⁶

The more he found himself thwarted, the more likely he was to cry treason. But the “treason” that he encountered was that of the many, not of the few. It would take him months to realize that his primary problem was not the “Timidity & Backwardness” of a frightened majority that secretly supported the crown and was willing to live with the legislative changes swept in by Parliament. He was up against colony-wide opposition and was expected to implement an ambitious program that most Bay colonists would resist if pressed. As a case in point: he had been sent a list of thirty-six names for councillors under the new government act. By mid-August he had twenty-five who were willing to take the oath of office; the other eleven would not. Nine of the twenty-five resigned within a month, not simply because they were “timid” in the sense that Gage once believed—that is, unwilling to stand against a handful of “demagogues”—but because a public had been formed that stood opposed to them and the government that they represented.Footnote ⁶⁷

Consequently the hopeful Gage of May, who tried to minimize the opposition he encountered, became the discouraged Gage of September, not knowing what to make of, or do about, the oppositionist behavior that he encountered. “Civil government is near its end” he lamented to Dartmouth. “Nothing can be done but by forcible means” and “a check anywhere would be fatal and the first stroke will decide a great deal.” Although Gage's troops did not hold the locals in high regard, Gage saw something ominous in their being “numerous, worked up to a fury, and not a Boston rabble but the freeholders and farmers of the country.”Footnote ⁶⁸ Courts could not begin new sessions because judges were afraid to take the bench, and grand and petit jurors refused to be sworn. Utterly exasperated, before the month was out Gage wrote Dartmouth that “nothing less than the conquest of almost all the New England provinces will procure obedience to the late Acts of Parliament.”Footnote ⁶⁹

It had it been difficult enough for Gage to accept that daily life in Boston lay beyond his control and that attempting to impose martial law within the town posed too many risks. He wanted to believe that the “disease” started there and had only begun to spread to outlying districts.Footnote ⁷⁰ But the countryside was no easier to control and he had been mistaken when he thought that the political resistance there was orchestrated from Boston. Those outlying towns had a will of their own; they did not all march to Boston's tune.Footnote ⁷¹ They too produced men whom Gage denounced as traitors. Nonetheless, as with every other instance, none would be prosecuted for treason.

* * *

Events in Worcester demonstrated more plainly than anywhere else that Gage lay under political siege. “In Worcester,” he complained to Dartmouth in London, “they keep no terms, openly threaten resistance by arms, preparing them, casting ball and powder, and threaten to attack any troops who dare to oppose them.”Footnote ⁷² He had to confess that conditions were so far beyond his control in and around Worcester that there was no point in trying to use troops to restore order—this, after telling Dartmouth that he might soon be “obliged” to march his men “into that township and perhaps into others as occasion happens to preserve the peace.”Footnote ⁷³ Worcester was no longer his, nor would it even be again, if it ever had been at all.Footnote ⁷⁴ Barring a miracle, he was already beaten, before there had been a provincial congress in Salem or a first Continental Congress in Philadelphia. What he saw as disorder had in fact become the new order, and with that change was raised the question of whose behavior was most treasonous: his against the province or that of his opponents against the empire? Because he was all but powerless, his authority, as most in Massachusetts saw it, ultimately became illegitimate—informally, long before anything would be proclaimed formally.

He had encountered obstructionism in Boston, such as local leaders who evaded the new limitations on town meetings by claiming that they were reconvening adjourned sessions rather than starting new ones. What he heard coming out of the countryside made his Boston problems pale in comparison. He sent the reports of what happened there to Dartmouth, who in turn gave them to Thurlow and Wedderburn. They produced a finding in December 1774 that went well beyond what they had ruled the previous February in response to the Tea Party. They determined that the letters from Massachusetts presented to them by Dartmouth “contain the History of an Open Rebellion and War,” named seven men involved in two incidents that qualified as “overt Acts of High Treason,” and added, ambiguously, that “several others at different times” could also have been named. In particular “the Acts of Treason imputed to them are the leading of Rebel Forces; which, as we collect from those Letters, possess the whole of the open Country and every part of the Province, except the Town of Boston; wholly prohibiting the Exercise of His Majesty's authority and suppressing the Execution of His Laws; insomuch that there exists no internal Legislature, or Court of Justice within the Limits of the Colony.”Footnote ⁷⁵

Assuming that they would rule as they did, Dartmouth asked them to draft a proclamation directing all those who were named in it “to surrender themselves by a certain day” or “be treated as Rebels & Traitors.” Thurlow and Wedderburn were willing to do as asked. They awaited Dartmouth's instructions as to what “inducement” might be provided to those who should surrender, what the “terms of Submission” would be, what should be required as “Security for their future Loyalty,” and who, if any, would be excepted from the provision.Footnote ⁷⁶ And there, for all intents and purposes, the legal effort ended. Thurlow and Wedderburn did not draft a proclamation; Dartmouth did not order Gage to make arrests; none of those involved turned to 35 Henry VIII c. 2. The king himself said “no” to any type of commission or board of inquiry being sent over to Boston from Britain.Footnote ⁷⁷

It was a notable response—or perhaps it should more accurately be called a non-response—because imperial authorities had specific names, dates and incidents in hand. Two reports from Worcester appear to have been crucial to Gage's thinking as he passed them on to Dartmouth. Thurlow and Wedderburn used them to identify those who ought to be charged with treason. If nothing else, the circulation of this sort of detailed information serves as a reminder that Whitehall and Westminster did not make policy in the dark. They responded to “facts” sent to them from the colonies. The seven men that they identified were the same seven who appeared in the evidence that Gage sent to London.

The first Worcester report dated from August 27, and the second was composed the very next day in the neighboring town of Rutland. Timothy Paine, one of the “mandamus” Council members who took office under the Massachusetts Government Act, wrote the first. Daniel Murray, son of John Murray, another of those council members, penned the second. Both described how men from various towns in the county had descended on the Paine and Murray homes, carrying the message that they needed to resign their Council seats or suffer the consequences. As Paine told it, some 2000 had gathered on the Worcester common by the morning of August 27. They sent a delegation to speak with him inside his house: Joshua Bigelow, Edward Rawson, and Thomas Denny, all of whom had sat in the Massachusetts house. They were joined by John Goulding and Joshua Gilbert—in total, five of the seven who would be enumerated by Thurlow and Wedderburn. They insisted that Paine resign; they even stood over him as he wrote a letter of resignation and would not accept it until he made changes to their liking. “Thus, sir, you see an open opposition has taken Place to the Acts of the British Parliament,” Paine warned Gage, and “I dread the consequence of enforcing them by a Military Power.” The “People's Spirits are so raised they seem determined to risk their Lives and everything Dear to them” to prevent the government act from being implemented. They had also made it known that they would prevent the court session scheduled to begin soon from opening; again, by force if necessary. “I wish your Excellency all that Wisdom necessary to direct you at this Time, Paine closed.”Footnote ⁷⁸ Other than that he had no advice to offer.

Some of those who had been in Worcester departed for Rutland, to join others who decided to pay a similar visit to John Murray. Forewarned, Murray had slipped away the night before. The next day at noon a “Captain” Wilder and “Captain” Holden demanded to see Murray. They gave their rank as militia officers although they could not, technically speaking, be there as militiamen. Wilder and Holden, the other two individuals to eventually be named by Thurlow and Wedderburn, acted as spokesmen for the approximately 1500 stick-wielding men gathered just off the Murray property. Some had brought muskets, but left them a short distance away; they would go back for them if necessary. Murray's son Daniel, like his father a formidably large man, refused to let them inside the house. With tension building, he relented and allowed a group to search the premises. “Exasperated” to find that the elder Murray had slipped away, they left a letter, giving him until September 10 to publicly resign or they threatened to make “another Visit and destroy all your Buildings” and, should he be there, he would suffer “the greatest Indignities.” The son believed them. “I have too much reason to fear you might expect nothing short of Death” and the same fate would await any who stood against them. Telling them that they were committing an act of rebellion “only serves as Oil to increase the Flame.” Those wanting to enforce the new laws may “be obliged to take Arms in the defence of this cause, or suffer the loss of their lives.”Footnote ⁷⁹

What transpired in Worcester also occurred elsewhere. Gage could have included other letters from other towns or counties reporting similar occurrences.Footnote ⁸⁰ Resistance did not begin and end with intimidation, that is, pressuring council members to resign or badgering judges into not taking the bench. It carried into the calling of county conventions and it would be those county conventions that gave life to the first provincial convention, which gathered in Salem in early October before moving to Concord and eventually to Cambridge.Footnote ⁸¹ Using the standards that Thurlow and Wedderburn followed to identify eight men in February and another seven in December who could be charged with treason, the numbers could have been increased tenfold, even a hundredfold, and still not have included everyone. Reading between the lines, they had warned Dartmouth of this in their legal opinions. The law offered no solution here. Massachusetts had become a land apart.

* * *

The well-remembered Samuel Adamses and John Hancocks were no more important to what had happened than the almost forgotten Joshua Bigelows and “Captain” Holdens. And for all the Bigelows and Holdens, there were countless others wholly forgotten. They were lawbreakers from London's perspective, but as they saw it, they defended a higher law. Most of their neighbors agreed, and together they reconstituted their political society, which Gage could only watch. Nothing better illustrates his fundamental lack of control. He had dissolved the General Court in June and decided against calling elections for a new session under the new government act in the fall. The “people” had already begun acting for themselves, electing men to represent them in an extralegal legislative body, a shadow government that would displace royal authority altogether outside Boston by the spring of 1775. They had chosen to call the convention before Gage decided not to convene the General Court. In doing so they followed on a larger scale the precedent set in 1768 by town meetings throughout the province, Boston's leading the way, in response to British policy at that time.Footnote ⁸²

Gage could do nothing to stop what went on in the countryside, except to complain, yet again, that those resisting imperial authority were guilty of treason. This he did in a proclamation of November 10, 1774, condemning the so-called “Provincial Congress” because it embodied “a most dangerous Tendency to ensnare His Majesty's Subjects, the Inhabitants of this Province, and draw them into Perjuries, Riots, Sedition, Treason, and Rebellion.”Footnote ⁸³ In what had become a familiar sequence, Dartmouth passed along what Gage sent him to Thurlow and Wedderburn. They responded that the actions he had reported—the reconstitution of the militia to purge it of those obedient to London, the use of public funds for unauthorized purposes, the resolutions coming out of the provincial convention asserting colonial rights and condemning acts of Parliament–did amount to “High Treason.” They would soon after put the actions of the Continental Congress in the same category. And still they advised a “wait and see” approach.Footnote ⁸⁴

As before, their legal opinion did not carry over directly into formal policy. But also as before, talk of treason bled into the parliamentary debates, eventually producing that policy. The king's message to Parliament on the opening of a new session on November 30, 1774 had returned to the theme expressed in March, although this time with an even greater sense of urgency. The problems that so many thought confined to Boston had manifested themselves elsewhere in Massachusetts, and beyond. Dartmouth had had Gage's dismal report of early September in hand for well over a month before the king's speech, which he conceded showed that too many people in the Bay colony “were determined at all events to refuse obedience to the law” and that “they have still in their power to trample upon it with impunity, and to bid defiance to all control.”Footnote ⁸⁵ George III echoed Dartmouth's concern when he addressed the combined Houses. He complained of “a most daring Spirit of Resistance and Disobedience to the Law,” of “fresh Violences of a very criminal Nature” and of “unlawful Combinations” spreading throughout the colonies. He did not, however, use the word “treason” nor did he call for the prosecution of colonial malefactors in England. Rather, he assured his listeners that he was doing everything he could to restore order and called on them to help him.Footnote ⁸⁶

Although the king did not voice his resentment against what he personally deemed treasonous acts, supporters in Parliament did. They drew the same criticism from the opposition as they had in March. Papers on American affairs presented by Whitehall to Westminster were the focal point of debate and the ministry delayed making policy proposals for months, from October 1774 through January 1775, as it awaited dispatches from the far side of the Atlantic. Among them was Gage's letter to Dartmouth that had included Timothy Paine's letter to Gage from Worcester, which Thurlow and Wedderburn had also seen,Footnote ⁸⁷ just as in the previous March those papers had served as proof to most parliamentary leaders that Massachusetts was in a state of rebellion and that treason had been committed.

But to others—a distinct minority in both Houses—they proved no such thing. In a replaying of the January 1769 debate in the Commons over extending 35 Henry VIII c. 2 to the colonies, Thurlow emphasized that the high-handed action taken in Worcester constituted treason, as did the calling of a provincial convention and the sending of delegates to a continental congress in Philadelphia. Dunning fired back, as he had in 1769 and as he repeated in March 1774, that there was no proof of rebellion or treason in such acts. “There is no difficulty in proving the direct contrary position,” Dunning insisted. Votes and resolutions in those meetings had been “decent and moderate.” Affirmations of liberty had been properly “firm” and “tempered with the highest expressions of loyalty and duty to their sovereign.”Footnote ⁸⁸ Thurlow would have none of that. “I am convinced that their intentions are to open hostility against the troops, and to become independent of this country,” he countered. “Nothing can prevent their throwing off their allegiance, and becoming independent states, but a vigorous adherence to the measures now proposed.”Footnote ⁸⁹

North revealed what the government had in mind on February 2, 1775, which initially would take the form of an address to the king from the Lords and the Commons. His measures eventually included a bill to restrict New England's trade and deny access to Newfoundland fishing grounds, and—what he considered to be a conciliatory resolution—allowing the colonists to raise funds for imperial expenses under a requisition system to avoid direct parliamentary taxation.Footnote ⁹⁰ He could anticipate a reasonably quick passage through both houses.

The Lords reflected the same divisions as in the Commons: a solid majority with the government, a vocal but small minority against. Just as in the Commons, treason came up in the Lords as often as rebellion, even though rebellion and not treason had been alleged by North. As proof that the formal policy held back from stating deeper belief, most of those who thought that rebellion and treason were indistinguishable as a practical matter apparently sided with the king and his ministers. Mansfield stood by his earlier position that acts of rebellion had occurred. The chief justice of King's Bench was challenged by Baron Camden, the former lord chancellor—and before that, chief justice on the Court of Common Pleas—who adverted to the 1352 treason statute and the opinions of Justice Hale to contend that the colonists had neither rebelled nor committed treason. Voted down easily, Camden signed a dissentient with seventeen other peers. They complained that “no legal Grounds were laid in Argument or in Fact” to justify the policy being proposed, which would only compound the difficulties brought by the policies introduced in the spring.Footnote ⁹¹

Camden offered a prescient warning; his opponents ignored him and pressed ahead. A joint committee from the Lords and the Commons agreed to the wording of North's proposed address to the king, which the king himself approved and ordered printed. It did not explicitly accuse anyone in Massachusetts of committing treason but it did state that a “part” of the king's subjects there were in rebellion, and it threatened punitive action to end the disorder. Sir William Mayne may well have expressed the thinking behind the address when he defended North's approach in the Commons:

Even if Mayne captured the sentiment behind the policy, the policy itself would not be laid out so explicitly. What Parliament stated formally through statute and resolution was not, and could not be, that direct. Besides, despite all the evidence that had been reviewed over the past months there remained a refusal to accept what that evidence showed. Whitehall and Westminster seemed to think that the disloyal could be made to come to their senses and that the loyal—that silent but large majority—would finally rally and prove that they were dutiful subjects of the crown. Otherwise it is difficult to explain why Dartmouth in London and Gage in Boston could have fooled themselves into thinking that they were on the verge of a breakthrough; that with just the right show of political resolve or military might their opponents would collapse.Footnote ⁹³

Dartmouth was unusual among cabinet members in his religiosity, but if he was searching for some way to hate the sin and love the sinner or, in this context, to denounce the treason but not punish the traitor, so were his colleagues. The same was true of Gage. He considered the colonists who opposed him to be traitors and had said as much, publicly a well as privately. The officers under his command probably shared his sentiments. Their inaction gnawed at them; they longed to do something decisive, something to reverse the inexorable flow of power away from imperial authority and to the shadow governments growing up around them.Footnote ⁹⁴ Gage did not, however, order them to arrest the presumed ringleaders for prosecution in either Massachusetts or England. As much as they all wanted to bring greater force to bear and make an example or two of those who broke or evaded the law, they did not want to create martyrs or risk an embarrassing defeat, which is why Gage, left to his own discretion, chose not to try and arrest anyone when he sent a column to Concord in April 1775.Footnote ⁹⁵

Dartmouth let Gage decide for himself, just as he had before, because he was not sure what to do beyond what was already being done. He was not alone.Footnote ⁹⁶ It was no great surprise that Gage would be second-guessed constantly by his superiors in London, criticized for doing too little before Lexington and Concord, and then condemned for having done too much in the aftermath.Footnote ⁹⁷ Future Massachusetts loyalists who had looked to him with such hope on his arrival felt betrayed when he did not restore their authority and power. They had been stubbornly unrealistic, refusing to accept the new political world that was emerging around them.Footnote ⁹⁸ There was an acute schizophrenia at work here, a temptation to lash out coupled with a longing to reconcile. The king would not publicly condemn the colonists who had long thwarted him as traitors and rebels until his proclamation of August 23, 1775, well after blood had been shed.Footnote ⁹⁹ But because he had already viewed them as rebels and traitors many months before, perhaps that shedding of blood had been a self-fulfilling prophecy. “The New England Governments are in a State of Rebellion,” George III had lamented to North in November 1774, and “blows must decide whether they are to be subject to this Country or Independant.”Footnote ¹⁰⁰

Angry as he was, the king still wanted his errant children to come back into the family fold. Therefore his concern that arrangements for pardons be worked out in advance of his condemning as traitors those who opposed him. Even Gage thought that it might be possible to seize a few leaders but not necessarily do anything more than that with them. In the meantime, pardons could be extended to others who, fearing what awaited them if they persisted in their rebelliousness, took loyalty oaths.Footnote ¹⁰¹ Dartmouth considered pairing pardons with arrests, and the king went so far as to ask Thurlow and Wedderburn to draft formal legislation to provide for pardons—assuming, of course, that those who opposed him would seek his forgiveness.Footnote ¹⁰² After the fighting at Lexington and Concord, Gage finally did extend a pardon to those who would meet the terms as Thurlow and Wedderburn specified; with the exception, that is, of Samuel Adams and John Hancock, “whose offences are of too flagitious a nature to admit of any other consideration than that of condign punishment.”Footnote ¹⁰³

Gage's June 1775 offer went out to people who were not yet formally proscribed as traitors, although they had been called that informally for many months. And in what must be considered one of the most important developments to occur over that same period, dissident colonists had begun to reverse the allegation: they contended that the servants of Whitehall and Westminster, not they, were guilty of treason. When Timothy Bigelow went as a representative from Worcester to the Massachusetts Provincial Convention in October 1774 he carried with him a declaration approved by the town meeting. It claimed that charter rights had been destroyed, that Gage had waged war on the people, and that all who agreed to serve as councillors to him ought to “be impeached as traitors to the constitution of this province and that they be taken into custody and secured for trial.”Footnote ¹⁰⁴

What Worcester did in support of a provincial convention, individuals would do in support of the Continental Congress, calling it “treason” not to support what the delegates in Philadelphia had resolved.Footnote ¹⁰⁵ Some would even contend that crown and Parliament, through their oppressive policies, had reduced Massachusetts to a state of nature. There could be no treason against royal government, since that government by its tyrannical acts absolved the people of any obligation to obey it.Footnote ¹⁰⁶ Where the political led, the legal followed, and it would be the patriots, not the loyalists, who defined what constituted treason in the local setting. In the process, they proved true Sir John Harington's well-known witticism: “Treason doth never prosper, what's the reason? For if it prosper, none dare call it Treason.”Footnote ¹⁰⁷

* * *

Proof of Revolutionary Era historian David Ramsay's assertion that colonists revolted against tyranny anticipated rather than tyranny experienced can be seen with the interjection of 35 Henry VIII c. 2 into the dispute.Footnote ¹⁰⁸ George III never relied on this 1543 statute as a way to prosecute colonists who would otherwise escape punishment. And yet it still became an issue in 1774 because Parliament had urged him to, and there was always the possibility that he might just decide to listen. “If this should be attempted,” warned one letter writer in Massachusetts to his friend in London, “it will produce a resistance and reprisals, and a flame through all America, such as the eye hath not seen, nor ear heard, neither hath it entered into the head of the Minister [North] or his ministers to conceive.”Footnote ¹⁰⁹ The First Continental Congress would not be quite so explicitly threatening but it was equally emphatic in resolving that the colonists “are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers.”Footnote ¹¹⁰

Protesting colonists also warned that they would not tolerate a broad interpretation of treason by Whitehall and Westminster in any attempt to coerce them. Alarmed by Gage's declaring it treason for the people of Massachusetts to call a provincial convention, the Virginia convention pledged solidarity with them, not him. “If he considers himself as acting in the character of his Majesty's Representative, we would remind him that the Statute of 25^th Edward III, has expressed and defined all treasonable offences” and Parliament was bound by that statute. The purpose behind it had been to prevent “tyrannical Kings” and “weak and wicked Ministers” from using “CONSTRUCTIVE TREASON,” that “deadly weapon” to deprive the people of their rights. Accordingly, Gage's proclamation violated rather than protected the law and resistance to it could be fully justified.Footnote ¹¹¹

Even though no rebellious colonist would ever be prosecuted for treason, crown and Parliament kept that option open to the end.Footnote ¹¹² Parliament in fact passed a habeas corpus act in 1777 that it renewed annually through 1782, a fallback device to hold without bail those who might be charged with treason until the king decided what he wanted to do with them.Footnote ¹¹³ John Dunning entered into the same sort of heated exchange with Edward Thurlow on this bill as he had on others that involved definitions of rebellion and treason. “Treason and rebellion were properly and peculiarly the native growth of America,” Thurlow huffed.Footnote ¹¹⁴ Dunning repeated his denial that the Americans had been guilty of either rebellion or treason and insisted that they had risen in response to oppressive policies. He contended that fault for the war lay in London rather than Boston; the majority of his colleagues disagreed.

As with so many other issues raised in the imperial crisis, the implications for Britons weighed more heavily on the minds of men like Dunning than did the question of American rights. Dunning connected the disputes over parliamentary sovereignty in the colonies with larger questions of constitutional government; he worried over what imperial policy meant for limiting the royal prerogative at home and not just how it was applied across the Atlantic. American affairs undeniably played a more significant role in British politics in the early 1770s than they had just twenty years earlier and yet they became most pressing, and the debates over them most divisive, when they could be linked to more universal questions of liberty and authority.

Revolutionary American leaders would experience some of the same frustrations as their British counterparts as they inched toward independence and the creation of their own nation. They too found it difficult not to try to silence their critics by condemning them as traitors.Footnote ¹¹⁵ Whether they were a true majority from the beginning, or only a minority determined to speak as if they were the majority, they had the advantage over their counterparts in Whitehall and Westminster. They had a local constituency that their imperial opponents lacked. There were those in 1774 Massachusetts wanting to stand by London but they were never numerous enough to prevail for long. It would be misleading to say that those they accused of being traitors first took power, then disingenuously established their legitimate authority, because the two developments were so intertwined and because so much of what they did fell outside the law rather than clearly in violation of it.

Whatever the colonists’ proper place in the empire was supposed to be, calling their resistance to unpopular policies “treasonous” had not served the imperial cause well. Treason under law was ambiguous; to allege it, whether as formal charge or informal accusation, tended to alienate rather than intimidate. No matter how many in Whitehall and Westminster believed that traitors had taken over Massachusetts and plunged the province into rebellion, that view could not be sustained in Massachusetts itself. People there once proud to call themselves British-Americans formed a different set of loyalties as they formed a new identity, both of which were well under way before any blood had been shed. Events as they played out on April 19, 1775 had been predictable; the only question that remains is whether they were preventable. Massachusetts was something other than what imperial theory said it ought to be. There, one man's treason was another man's patriotism, a difference of perspective that framed the problem of empire.

What transpired in Massachusetts is a reminder that imperial authorities did not move beyond “half measures” until after the fighting started, as Robert Tucker and David Hendrickson argued nearly thirty years ago.Footnote ¹¹⁶ Aggravated colonists complained about tyranny and oppression, and of designs to yoke them in bondage. In reality, crown and Parliament proved reluctant to impose any harsh policy once colonial resistance to it became pronounced. If the shooting war had not erupted in April 1775, London might well have vacillated yet again, as North's conciliatory move in February 1775 hinted. Britain's imperial policy had been ad hoc in nature, a stimulus-response approach that does not fit neatly into fixed constitutionalist categories. A rising “command constitution” in Britain versus a “constitution of custom” in the colonies may well have developed by the 1770s, as John Phillip Reid and other scholars have argued. Even so, imperial policy was marked by London's repeated efforts to avoid constitutional disputes, if some sort of political accommodation could be arranged.Footnote ¹¹⁷ Failure came because of political impasse, not constitutional difference, as the empire stumbled into a war that few wanted but none seemed able to prevent.

The British had been wrong to believe that, once fighting erupted, they only needed to help “the good Americans subdue the bad.”Footnote ¹¹⁸ If such sentiments are proof of bad psychology, of even delusive expectations, London's resisting the temptation to prosecute Americans for treason showed a more realistic, even wiser, side to London's thinking. Although George III declared rebellious Americans to be traitors in the summer of 1775, he did nothing more than Gage had done the year before to punish them under law; this, despite the shedding of blood and prisoners in hand. On some level, then, the king and his men understood that prosecution, conviction, and execution for treason would further alienate rather than intimidate. Whether they would have continued to hold back had the war gone better for them is of course moot. And yet it seems most unlikely that a Washington or a Franklin would have been tried for treason, even if there had been a different military outcome. I suspect that a victorious Britain would have treated rebellious Americans more the way the Lincoln administration treated rebellious Southerners than the way George II's government treated leaders of the Scottish uprising of 1745.

Time and again Attorney General Edward Thurlow and Solicitor General Alexander Wedderburn showed a reluctance to try Americans for treason in English courts, despite their ruling on numerous occasions that treasonous acts had been committed. Rather than looking for some sort of latent American sympathies on their part, we should remember that Thurlow and Wedderburn were officers of the court as well as servants of the crown. As politicians they supported attempts to force Americans back into line, whether through royal decree, parliamentary statute, or even military force. However there were limits to how far they would go in using the law as a political tool. Their reluctance to prosecute may simply have been the result of political pragmatism; it may also have been based on a desire to keep law and politics separate, to not use the law to achieve a desired political end. Americans left the empire with their respect for English law undiminished. Prosecutions for treason could have changed those feelings and thereby changed the postwar development of American law, with implications we can only begin to imagine.