Mack Thompson's biography of Moses Brown (younger brother of John) says that John Brown was arrested in April 1775 for his role in the burning of the Gaspee.  While in "the brig," John drew up a defense, and when Moses came to his aid, Moses presented John's defense to the British Admiral Graves.  We know that Brown was released soon after Judge Andrew Oliver, a member of the royal commission that investigated the incident, told Admiral Graves there was no valid case against John Brown.  (Mack Thompson thinks it also helped that John Brown promised to try to get the Rhode Island Assembly to "adopt a more moderate and conciliatory attitude toward the Acts of Trade and to send a delegation to negotiate with General Gage about a settlement of differences.")  But, does anyone know what the defense was that John Brown drew up while in custody?

Posted to Gaspee Forum by Maxine Stansell, January 24, 2001

Mack Thompson thinks John Brown was released simply because of political reasons.  That is probably right.  This was the start of the Revolutionary War, and John Brown was one of the most influential persons in the RI legislature.  The RI legislature had before it a message from the British asking for negotiations to end the "differences", and the RI legislature had ignored it. John promised to ask the legislature to negotiate, and he did do that.  I think that was the real reason the British released him.

Aside from political reasons, there were legal reasons to release him. According to Mack Thompson's book, John Brown had been arrested by an English ship commander for transporting supplies to the American Army forming in the Boston area.  But there probably was no real proof of that. Brown could argue that he was just sending cargo to be sold to the highest bidder, which could be the loyalist townspersons of Boston.

According to Mack Thompson's book, John Brown was arrested for one thing, but when Moses Brown got to Boston and saw General Gage, Gage informed Moses that John was being held for being a leader of the Gaspee burning.  Gage probably got that information from some informer, but it was hearsay.

The logical defense of that time, to that charge would be a legal defense:
     1. It could not be argued by Gage that he was taking action to further investigate the Gaspee affair.  This would be assuming authority in conflict with his previous direct orders. The Gaspee investigation was the subject of the jurisdiction of the special Commission set up to investigate the Gaspee affair; and any attempt by Gage to investigate or take action would be in direct conflict with the Admiralty's direct orders that he had received in 1772 that he was to assist the Commission (not to usurp it).
     2. It could not be argued by Gage that he was taking action under martial law to find treason that had occurred in 1772. Martial law is only for actions done in time of war.  The 1772 Gaspee affair was still a matter for the civil authorities, and Gage was acting illegally in taking upon himself the power of the civil/criminal courts in Boston (which still existed at this time in the spring of 1775 )for non-martial affairs.
     3. The Commission, and the civil authorities of both England and Massachusetts/Rhode Island had found no reason to have him arrested, and had not issued a warrant for his arrest.   Without a warrant being issued for his arrest, he could not be arrested for a felony or treason in 1772. Therefore, there was no legal excuse Gage could have to arrest or hold John Brown, for the offense stated by Gage.  Gage was committing a "trespass against the person" of John Brown, and Gage could be sued by John for damages for illegal arrest.   Boston, under Gage, still had civil courts, and even Tory judges would have to find Gage guilty of civil wrong.
     4. In short, any action in holding John Brown for involvement in the Gaspee affair was illegal and unconstitutional under English law, and, furthermore, Gage could be personally liable for damages to John, in a civil court.

No one KNOWS what John Brown's legal defense was, but I suspect that was it.

Posted to Gaspee Forum by Leonard Bucklin, August 29, 2001

You can find some brief notes by me at the last half of the page at http://www.bucklinsociety.net/

I think you might like to look at the book cited in our Library page as ---Thompson, M. (1962). Moses Brown, Reluctant Reformer (pp. 1 - 316). Williamsburg, VA: Univ. of North Carolina Press. F 83 B875.   That book describes the incident from the point of view of Moses Brown, and describes the bargaining by Moses with the English.

The site you have is wrong when it says Brown was --originally-- charged with the Gaspee affair.  The original charge was being in charge of the ships carrying food to the enemy forces (and my recollection is that the flour was the main item RI sent, but Brown also had some gun and powder in
his ships).  (And of course, it was 1775, not 1774, when Washington was General Washington.)

My recollection is that the English Navy hands off the prisoner to the Army, and that the charge of carrying goods to the American forces is suddenly dropped in favor of a new one of the Gaspee attack.  When Moses gets to the English forces he is surprised to find he is not negotiating on the charge he expected, but rather the Gaspee is the subject matter now of the jailing --- and that the charge of gun-running by the Brown fleet is not even being discussed by the military

Moses goes to a former Gaspee Commissioner and then goes to Gage to make the case that there is no valid Gaspee charge against his brother.

I agree that this helps us understand at least more of post-Gaspee events, and the peculiar messages from Montague to the Gaspee Commission which listed persons but not why Montague thought they were of interest.

The army and navy had Brown on a valid change of providing stuffs to the enemy in the ship in which he was seized. It was a military charge on which there would be military justice. There was no reason to change the charge to the earlier civil authority charge, unless Gage thought the evidence against him was so convincing on the Gaspee matter that they were confident of moving to that.   (Of possibly, because of the prominence of Brown, Gage would have preferred to send the hot potato decision of punishment to the civil authorities.)

The fact that Gage decided to change the charge against Brown to one for the Gaspee attack, but then let him go when Moses got the former Gaspee Commissioner involved suggests to me:

• that ARMY military intelligence spies were the sources from which Montague had submitted various names to the Gaspee investigating commission, and the reason why Montague had not given the names of the sources,.
• And that the sources reported accurate information about the Gaspee attack.
• And that the sources knew Brown as being the head of the Gaspee affair,
• But that these sources were so highly placed that the ARMY did not want to jeopardize future information by revealing the names of the spies, even to the Commissioners.

Get thinking like an 18th century noble, and it makes sense that when Moses saw one of the Gaspee Commissioners who then told Gage that they had not found Brown involved, that Gage released Brown from jail, and decided to forget Gaspee and make a deal on the charge involving the flour-running to the American forces.  After all, it would be embarrassing to say to the Commissioner that the military knew more in 1772 than it told the Commission.

On my "to do" list is to someday pour thought the voluminous correspondence of Gage and Montague that exists at sundry places, to see if we find some reference to this matter.

Genealogical Background; John Brown of Providence Rl was the son of Capt. James Brown (Elder James3 John2 Chacf). John Brown was one of the famous "four brothers," merchants in Providence and founders and patrons of Brown University. His father James was born at Providence 22Mar1698, died there 26Apr1739 and married at Providence, 21Dec1722, Hope (POWER) Brown who was born 4Jan1702, died 8June1792, daughter of Nicholas and Mercy (Tillinghast) Power. "In a deed, drawn in 1738, Capt. James Brown mentioned his sisters Ann (wife of Samuel Comstock) and Mary, his father James, and his brother Jeremiah. Their children born at Providence were; i. James Brown,5 b. 12Feb1724; d. unm. at York, Va., 15Feb1750. ii. Nicholas Brown, b. 28July1729; m. (1) 2 May 1762 Rhoda (JENKS) Brown; m. (2) 9Sept1785 Avis (BINNEY) Brown.
iii. Mary (BROWN) Vanderlight, b. in 1731; m. John Vanderlight. iv. Hon. Joseph Brown, b. 3Dec1733; d. 3Dec1785; m. 30Sept1759 Elizabeth (POWER) Brown. He was a patriot in the Revolution and filled both town and State offices. v. John Brown (subject of this story), b. 27Jan1736; m. 27Nov1760 Sarah (SMITH) Brown. vi. Moses Brown, b. 12Sept1738; m. (1) Uan1764 his first cousin, Anna6 (BROWN) Brown (27, iv), b. 28Nov1744, daughter of Obadiah4 Brown and Mary (HARRIS) Brown; m. (2) 4Mar1779 Mary (OLNEY) Brown; m. (3) 2May1799 Phebe (LOCKWOOD) Brown.