Legal Theory of the Attack on the Gaspee
This article is re-posted with permission from the
Joseph Bucklin Society web pages at: http://www.bucklinsociety.net.
is fascinating for its content of legal reasoning.
Sadly, our friend Leonard Bucklin,
Esq. passed away on May 30, 2014 at his home in Arizona.
The Gaspee Attack was an American Attempt
|"In advancing the following
hypothesis, I emphasize that there is no
documentary evidence of what John Brown had in
mind at the time of his attack as his legal
justification (if any) for his attack on the
Gaspee. However, the following hypothesis
accounts for the set of facts that exists, and
appears probable. At the least, the hypothesis
can be taken to as thesis for the purpose of
further investigation. I believe that it is a
true explanation of the historical event."
Leonard H. Bucklin
Abstract. John Brown regarded Lieutenant Dudingston's seizure of ships in the Narragansett Bay as illegal under Rhode Island law. John Brown wanted to punish and confine Dudingston through the mechanism of Rhode Island civil law. Probably Brown's plan was to sue Dudingston for a claimed civil wrong, probably for trespass in Dudingston's past seizures of goods and ships. Under Rhode Island law of the time, the first step in such a civil suit would be a warrant for Dudingston's arrest, executed by a sheriff, aided by a mob, a mass of common men. An accompanying part of the civil action might even be a seizure and condemnation, by a court, of Dudingston's ship as an instrument of piracy. Only after finding documents that gave Dudingston good color of law for the Lieutenant's actions, and Dudingston having been shot, perhaps fatally, did Brown change his plan, moving instead to destroy the warrant of arrest, destroy the Gaspee illegally, and prevent disclosure of the identities of the raiders.
Legal theory of Rhode Island courts conflicted with English Navy theory. The prevailing legal theory of the Rhode Island common law courts and of the Rhode Island Vice-Admiralty Court was that even if a ship was carrying smuggled goods, the English customs statute did not authorize the Gaspee's seizures of the ship involved. E.g., a case involving seizure of a ship of Joseph Bucklin 4th: "...upon a critical examination of the Act referred to it will be found that if the breaches occurred in the information had been fully proved, the vessel would not have been liable to confiscation." The Case of John Robinson vs. The Brigantine Providence, on Appeal (1768)
|"As Wanton saw it,
Dudingston was operating outside the
protection of Rhode Island Law. Not only that,
but he had actually violated Rhode Island law.
That, and the knowledge that Wanton was
supported by his deputy governor and by the
province's chief justice, may have emboldened
those who eventually did board the Gaspee."
- Prof. Neil York, The Uses of Law and the Gaspee Affair.
Equally important, preceding the Gaspee attack, the Greene family (whose ship Fortune had been seized by Dudingston) had asked the Rhode Island government to determine what authority the Gaspee commander had to board and seize ships. As a result of the request Rhode Island Chief Justice Hopkins had issued an opinion to Governor Wanton that an English Navy ship could not enforce civil law in Narragansett Bay without the consent of the Rhode Island Governor. Hopkins proceeded on the theory of admiralty jurisdiction used in English common law courts, to wit: admiralty jurisdiction lay seaward of a line draw between two outlying points of land; civil common law jurisdiction lay landward of that line. Hence Narragansett Bay was within the colony of Rhode Island; within the colony, civilian actions were not subject to military enforcement of customs law, and businessmen were not subject to military authority n times of peace when the civil courts were operating.
"...no commander of
any vessel has any right to use any authority
in the body of the colony, without previously
applying to the Governor, and showing his
warrant for so doing."
The seaward geographical boundary of Rhode Island's control had been a running legal battle of jurisdiction between the admiralty courts appointed by the crown and the Rhode Island courts appointed by the governor. See., e.g., the writ of prohibition issued in 1734 by the Rhode Island Superior Court of Judicature to prohibit Vice Admiralty Judge Robert Auchmuty from adjudicating what should be done with "Six Thousand Pound Weight of Indigo and Three Hundred Port Weight of Cooper...imported into Newport" . The theory of the writ of prohibition was that the customs seizure was an action n the colony of Rhode Island and not on the high seas." [Judicial Archives of Rhode Island.]
The well established English common law was that the King and his armed forces could not legally take action within the country without the consent of the civil authorities. E.g., AA standing army in time of peace, and execution of Martial Law in a time of peace, are against law.@ Speech of Lord Chancellor Hardwick, House of Lords, 1756. The Rhode Island Governor, as His Majesty's representative and the civil head of military forces of the colony was in charge of the use of the colony's military force; military force and martial law could not be used in civil matters without the Governor's consent as head of the civil government..
However, if the King sent a military force to Rhode Island, the Governor, as a loyal subject, was legally bound to obey the King, and would have to give the military force the requisite Rhode Island approval for the military mission to proceed. Nonetheless, the legal point was that the English military mission first would have to present its authority to act to the Rhode Island governor, before, not after, taking military action within the colony. This theory lay behind Justice Hopkins's legal opinion to Governor Wanton, and Wanton's subsequent letter to Lt. Dudingston on 23 March 1772 complaining that Wanton did not have "any authentic information respecting the legality of that authority you have presumed to exercise within this Colony. I expect that you do without delay, comply with my request....." [Emphasis supplied. Note, Dudingston was not doing anything on land, only in the Bay waters, which Wanton, but not the Royal navy, regarded as within the colony.]
English Navy Admiral Montague simply did not agree with the theory that an English Navy ship could not enforce civil law in Narragansett Bay without first obtaining the consent of the Rhode Island Governor. First, English navy theory was that the large bays of the American continent were part of the open seas, not within a part of the adjacent colony.
Second, the English Navy took the position that their authority came directly from the King acting through the Lords of the Admiralty, not from the royal or parliamentary commissioners of the colonies, and not from the Admirals who merely were regarded as transmitting implied details of the instructions from the King. The legal effect of a bypass of a King's bypass of Parliament was that if you were obstructing the naval officer, you were legally -- so ran the Navy's theory - you were obstructing the King, not just a mere Admiral or mere Captain of the Fleet. The lawyers in Rhode Island trained in the English Inns of Court would have responded that the King had no authority to bypass parliament to impose military forces on civil jurisdictions in time of peace, so civil sheriff trumped military admiral within the confines of the colony.
The theory that an English Navy ship could not enforce civil law in Narragansett Bay without the consent of the Rhode Island Governor was asserted in court, by Chief Justice Hoskins, just a few days after the destruction of the Gaspee. On 27 June 1772, the English navy ship Beaver seized a ship of Providence merchants Clark and Nightingale. Thereupon Clark and Nightingale sued Charles Dudley, the Collector of Revenue. The theory was that the the Royal Navy ship Beaver, and its ship captain, John Linzee, had no authority from Governor Wanton to enforce customs laws "within the colony", i.e., in Narragansett Bay. Read more about this case and the use of law against the English. Four judges sat as a panel for the jury trial. The judges of the court were Chief Justice Hopkins, and Justices James Helme, Benori Hall, and Stephen Potter, with Clerk Arthur Fenner. They allowed evidence and legal argument which resulted in a specific jury finding of fact.
"John Linzee, Esq.,
Commander of his Majesty's Ship Beaver ...was
deputed by the Honorable Commissioner of his
Majesty's Customs in Boston an officer of the
customs to make seizures with the limits of
their commission... but we do not find that
said John Linzee was sworn to the same in the
Colony of Rhode Island."
On the basis that Capt. Linzee had not first presented his orders to Wanton, and been "sworn in" (authorized) by Wanton to enforce civil customs law in Rhode Island, the judges adjudicated that Customs Collector Dudley was liable to Clark and Nightingale for 500 English pounds damages for an unlawful seizure. In addition, the Rhode Island court issued a judgment directing the return of the ship to Clark and Nightingale.
Dudingston was subject to arrest. Warrants had been attempted to be served on Dudingston for his past actions as being illegal. Dudingston even partly justified his sending the Greene's ship Fortune he had seized to the vice admiralty court in Boston (instead of to the local Rhode Island vice admiralty court) on the ground that if Dudingston went on shore in Rhode Island, he would be served with a warrant of arrest for past confiscations by him of smugglers goods.
Because of his recent seizure of the Fortune, before the Gaspee attack, Dudingston had realistic expectations that he might be arrested and put into jail pending a civil trial. For that reason Dudingston did not, and would not, go on shore where a sheriff could arrest him. Therefore for John Brown to sue Dudingston, to put a stop to Dudingston's actions, it would be necessary for a sheriff, armed with a warrant, to board the Gaspee to arrest Dudingston.
Dudingston was rational about his fear of being arrested. The Rhode Island colonists had effectively used law to shut down enforcement by obtaining personal judgments against the English military and customs officials, and using the warrant of arrest and debtor's prison effectively to get customs official into Rhode Island prisons. Click here for Law as a Weapon discussion. Indeed, Dudingston's fears of civil law arrest were justified. After the Gaspee attack, Dudingston was effectively sued for his previous seizures of property and found guilty of trespass without authority in seizing ships and goods. If he had not been able to pay, and had been on shore at the time the judgment was entered, he immediately would have been put in jail.
|"SIR ... I see
plainly, I cannot look to [the local tax
commissioners]...to be supported for sending
the sloop and rum to Boston, notwithstanding
I was assured by their officers at this
port, no seizure could be safe with
them.—..... I was not, at the time, ignorant
of the statute to the contrary, but never
doubted ........I should be supported by
them .... The owner of the rum resided in
Coventry, which is but little further from
Boston than Newport, of course could, at as
little expense, defend his property at the
one as the other. As I find the exigencies
not considered, but law referred to by them,
for the future [I] shall take care not to
act repugnant to it. . . . I shall be on my
guard not to put it in their power to arrest
- Lt. Dudingston letter to Admiral Montague. May 1772.
Indeed, as soon as Dudingston was on shore, immediately after the Gaspee attack, Dudingston was arrested and would have been put into jail, awaiting security for bail to appear at the civil trial, except he was too injured to be moved to the jail.
this morning, that the high sheriff was gone to
arrest Capt. Dudingston, on the suit of Jacob
Greene and others, for goods which Capt.
Dudingston lately seized in the river, and
carried to Boston, I went down immediately, and
found the sheriff had just before arrested him;
a copy of the writ I herewith enclose to Your
I offered to be security for him; but Capt. Dudingston told me he should not ask any person to be security, as he did not expect to live long, and the sheriff might do as he pleased. The surgeons told me he was too ill to be moved; and as I expect the sheriff will use great severity with him, I humbly request Your Honors to give me such direction in the matter as to you shall seem necessary."
- William Checkley, letter to Commissioners of Customs. 12 June 1772.
Legal maneuvers were colonial weapons. The events in the 90 day period before the Gaspee attack were essentially all legal events. See [Staples] p3 et seq. The colonists were accustomed to using lawsuits as a weapon against customs collection. The series of events before the Gaspee attack seemed to follow the use of law as a weapon. The events began with John Brown organizing a petition from merchants to Governor Wanton.
|SIR:—The inhabitants of this
town have, of late, been much disquieted in
their minds, by repeated advices being brought
of a schooner which for some time past hath
cruised in the Narragansett Bay and much
disturbed our Navigation. She suffers no vessel
to pass, not even packet boats, or others of an
inferior kind, without a strict examination, and
where any sort of unwillingness is discovered,
they are compelled to submit, by an armed force.
Who he is and by what authority he assumes such
a conduct, it is thought needs some inquiry, and
I am requested, by a number of gentlemen of this
town, on their behalf, to acquaint your Honor
therewith, and that you would take the matter
into consideration and, if the commander of
that schooner, has not as yet made proper
application and been duly authorized in his
proceedings, that some proper measures be
taken to bring him to account. ...
- Petition by John Brown and others to Governor Wanton. 21 March 1772.
[Emphasis supplied. Note the consistency of the legal theory expressed in this opinion with Justice Hopkins's opinion given to Governor Wanton.
This petition by John Brown and other prominent merchants led to a series of heated letters between Governor Wanton and the English navy, represented by Lt. Dudingston and Admiral John Montague, Commander of the Royal Navy for the northeast American coast. It is during this correspondence that the following points were made.
The Governor insisted he had not been presented with any papers showing authority for Dudingston to seize ships within the Governor's jurisdiction. In this he probably was correct, because both Governor Wanton and Lt. Dudingston seemed painfully aware of protocol -- that is, the person in the inferior position in the jurisdiction is the one who is supposed to ask to see the authority or is supposed to show the authority. (That is why an ambassador today to a country today makes a first formal visit to present his/her authority without being asked to do it.) Thus Lt Dudingston, following his own protocol, maintains it is not customary or necessary for him (as having a superior order directly through the Lords of the Admiralty) to show his authority. "When I waited on you, on my arrival, I acquainted you of my being sent to this government to assist the revenue. I had my commission to show you if required, as it was ever understood by all his Majesty's governors I have had the honor to wait on, that every officer commanding one of his Majesty's vessels was properly authorized and never did produce it, unasked for."
In response Wanton, following his own protocol, says he had not been shown papers. Wanton never claims he asked Dudingston to show him his authority at their meeting; Wanton assumes that as the superior he does not need to stoop to ask. So Wanton's response to Dudingston is: "Yours of this day I have received, which does not give me that satisfaction I had a right to expect; neither was the bearer of the letter qualified to give me any authentic information respecting the legality of that authority you have presumed to exercise within this Colony."
Admiral Montague differed with Wanton on the matter of authority within the Bay. When Wanton sent the sheriff to bring Dudingston to Wanton to show the naval authority to enforce the civil customs laws, this exchange developed:
|Montague to Wanton:
"I would advise you not to send your sheriff on board the King's ship again, on such ridiculous errands."
Wanton to Montague:
"But Mr. Dudingston . . . . positively denied that he derived any authority either from you or the commissioners; therefore, it was altogether out of my power to know, whether he came hither to protect us from pirates, or was a pirate himself. . . .
As to your advice not to send the Sheriff on board any of your squadron, please to know, that I will send the Sheriff of this Colony at any time, and to any place, within the body of it, as I shall think fit...."
Rhode Island people thought Dudingston was acting illegally. Rhode Island people generally believed the English Navy and the English Army could take action in the colony (in time of peace) without a request, or authority, from the colony. Rhode Island people thought a sheriff of Rhode Island could serve a warrant within the Colony to arrest Dudingston to deliver him to Rhode Island authorities. Governor Wanton thought he had authority to "send the Sheriff of this Colony at any time, and to any place, within the body of it, as I shall think fit. . . ."
|The force attacking the Gaspee is one that would be chosen to serve a warrant forcibly. The leaders included both a chief civil authority of the colony (Bristol County Sheriff John Brown) and also a major military representative of the colony (the chief military officer of Bristol County (Colonel Simeon Potter).|
Rhode Island law and order used English law that allowed a sheriff to ask a mob to help him make an arrest if the sheriff had a reasonable suspicion that a crime had been committed. Brown as a sheriff had authority to assemble a mob to help him make an arrest if he had reasonable grounds to think an illegal act had been committed, to assemble as mob to help him make a seizure of property used illegally, or to make an arrest. See Mob as Legal Police Force.
Brown was the sheriff of Bristol County, and had planned for one boatload of Bristol men coming all the way from Bristol (when Providence was closer) which would assist in a claim of lawful force by the Bristol County Sheriff. See Boat from Bristol.
The boat from Bristol, also brought a major military representative of the Governor, (the chief military officer of Bristol County, to wit: Colonel Simeon Potter). Legally, at the time, if a ship was a pirate ship, it could be the subject of not only civil legal action to seize it, but also colonial military action to seize the ship. It would be in Brown's bold capitalist character to assume that that if Dudingston were arrested, and no proper "legal" authority for Dudingston to do what he was doing, the menace of Dudingston would be removed from the Providence area. An arrest of Dudingston, followed by jail while he waited for bail, then a trial that his actions were illegal, would allow wholesale returns of seized goods and effectively stop the Gaspee's immediate activities.
The stage was set for a sheriff of the colony to test the law and use Rhode Island courts to determine that law. All that was now needed was to have a sheriff go on the Gaspee when it was in the Bay (within what the Rhode Island law considered "the body" of the colony), and bring the ship captain to the bar of Rhode Island justice to determine the ship captain's authority to "attack" a Rhode Island ship within the boundaries of the colony. If it could be done it would be a blow in favor of the governor in his dispute with Montague. The situation was:
Was that what was attempted?
Attackers said they had a warrant. Someone shouted from the attacking boats that he was the sheriff with a warrant for arrest of the Dudingston.
Ephraim Bowen said that he heard Whipple shout that he was the sheriff "of Kent County" and had a warrant, but:
In any event, it was either Whipple or John Brown who shouted that he was a sheriff with a warrant for arrest of Dudingston. As Bristol County sheriff, Brown did have legal authority to make an arrest under a warrant. The county line between Kent and Bristol county lies in the waters of the Bay. The Gaspee was on the Kent county side of the boundary line, but lawyers of the day could argue that in the waters of the Bay, authority existed for any county's sheriff to act in the Bay waters either if he observed criminal activity or if he was serving a warrant for arrest.
Interestingly, the seizure of the Fortune had been in the jurisdictional waters of Kent County. The shout to the Gaspee was that it was " "I am the sheriff of the county of Kent, G... d ..n you. I have got a warrant to apprehend you, G.. d..n you; so surrender."
The English crew said the attackers consistently, specifically, and openly used the titles of "sheriff" and "constable", (e.g., English crewman Cheever testified that three of the men were addressed as "captain", "sheriff" and "constable"), I conclude that Brown's plan must have been to use the titles: sheriff and constable. I do not think it was mere happenstance that Whipple or Brown shouted that he was the Sheriff of Kent County with a warrant for arrest, and that the boarding force consistently used the titles of sheriff and constable when on board the Gaspee. The consistent use of those official titles is another reason suggesting that Brown had formed the excuse of a warrant of arrest under local Rhode Island law to get Dudingston off the ship.
English believed legal events were part of the attack. After the Gaspee attack, one English supporter with broad experience in the colony wrote to Admiral Montague that legal action "by the civil authority" was pre-planned to be the justification behind the attack on the Gaspee.
|"The most public
step was a memorial or petition from the
merchants in Providence first laid before the
superior court of Judicature then sitting in
that Town & afterwards before the Governor,
praying that the commander of an armed vessel
then cruizing in the Bay should be called upon
by the civil authority to know by what powers he
was authorized to search ships and other vessels
on the high seas; tho' it was notorious that the
armed vessel in question sailed under British
colours & belonged to His Britannic
Majesty... corroborating Evidence of respectable
men will not be wanting to prove that this
insult on His Majesty's Crown & Dignity was
begun in the most public & open manner, nor
will you want good Testimony to shew that the
intention was spoke of many days before the
- Tax Collector Charles Dudley letter to Admiral Montague. 23 July 1772.
In Rhode Island courts a civil law suit would be started by application to a court, and the court issuing an order, commonly a warrant of arrest. The arrest of the person brought the defendant within the legal jurisdiction of the court and also insured payment of the debt (because to be released from the arrest and the ensuing jail before the case was heard it was necessary for bail to be posted. If Brown had a warrant of arrest, a judge, a court clerk, and at least one lawyer would have been involved in the issuing of it. More lawyers than one would be consulted in drafting of a legal complaint that an English warship was a pirate ship subject to confiscation. If the application for the warrant, and the issuance of it, were done secretly, other than in the public courthouse, an inn would be the normal place for the assembly of the necessary legal talent and officials.
Admiral Montague had a well-placed spy of such high colonial status and exceptional usefulness for military intelligence that the Admiral did not want to risk any disclosure that would compromise the identity of that spy. That spy apparently gave the Admiral information that a court proceeding was involved in the attack, specifically which of the several judges in the colony had been involved, specifically which clerk was involved, specifically which lawyers, and specifically which inn had furnished a room outside the courthouse.
By a letter to the investigating commission, after the attack, Admiral Montague, asked for a, a judge, a clerk of court, and three lawyers to be summoned for investigation, together with an innkeeper. The Admiral gave no reason for requesting their inquisition, probably to avoid disclosure of presence and identity of the spy. Then, as now, English law would have allowed a subpoena directed to the spy to come forward to testify if the Admiral had said he had received the information from a specific person, and with more specifics than the Admiral gave in the following letter to the royal commission investigating the attack.
|"John Andrews, Esq., Judge of
the court of Vice Admiralty within the Colony of
Rhode Island; Mr. Arthur Fenner, Clerk in the
Supreme Court in the county of Providence;
Messrs. John Cole, George Brown, and Daniel
Hitchcock, Attorneys at Law in the town of
Providence; James Sabin, Vintner in the town of
It is the desire of Admiral Montague that the above named persons may be summoned and examined before the commissioners relative to the assembling of people in the town of Providence, in the evening of the 9th of June last as a measure necessary towards the discovery of the persons concerned in the burning his Majesty's schooner the Gaspee."
- Admiral Montague, Letter to Royal Commission.
Warrant of arrest did exist. Based on the foregoing discussion, it appears that Brown's plan involved serving a warrant of arrest and taking Dudingston to jail. Why was there a change of plans and an abandonment of using the warrant of arrest?
Unexpected events caused Brown to change plan. The "merchants and sea captains" described by both the English ship captain Dudingston and his midshipman Dickinson were in the cabin of the Gaspee immediately on the Gaspee being captured, and were interested primarily in looking immediately at the captain's papers and authorities for his voyages and actions. "During this time I had an opportunity of observing the persons of about a dozen, who were in the cabin. They appeared to me to be merchants and masters of vessels, who were at my bureau reading and examining my papers."
When the attackers found Dudingston's orders and other ship papers, the Royal Navy authority and Dudingston's orders made Brown realize Dudingston at least had colorable authority for the ship seizures he had been making. The vigor of the legal maneuvering before the Gaspee attack suggests that John Brown and the merchants of Rhode Island really thought that Dudingston did not have direct paper orders to do what he was doing. Finding them may have been unexpected. There was a second event, probably unexpected by Brown, which occurred during the capture of the Gaspee. The second unexpected event was that Dudingston, an officer of the English Navy, had been shot and was in a condition which usually was fatal.
The two events, taken together, caused John Brown to make an instant decision to abandon the idea of using a warrant of arrest to bring Dudingston court. They thought Dudingston would die. With his death the civil suit against him would be dismissed. Moreover, although a sheriff could exercise reasonable force to execute a civil warrant of arrest to start a civil lawsuit, a sheriff could not kill a civil suit defendant to bring him into court. Furthermore, Dudingston's papers gave him such legal status that it was more likely that the mob would face legal punishment than would Dudingston. The crux of the matter then became whether the identities of the sheriff and his mob were known. If their identities were known, the best course of action would be to rely on the warrant of arrest for the events; if their identities were not known, than it might be best to destroy evidence of the warrant and maintain the secrecy of who had been the sheriff and his mob.
The next morning Assistant Governor Sessions promptly asked the English crew about possible identification of the attackers. Sessions obtained written statements that the crew could not identify attackers. As defense criminal lawyers know, the only reason to get a written statement from the victim that "I cannot identify anyone there at the crime." --- is to allow a possible accused to feel safe in denying being a person at the scene of the crime! The warrant, I believe, was torn up the next day when it was realized that no attacker was identified by the crew, and probably could not be identified easily.
An instant decision to set fire and scuttle the Gaspee by fire fits with the type of person that John Brown was. Angry and frustrated in his attempt to bring Dudingston into court with a warrant of arrest, it was easy for him to give instant orders to burn the ship, to rid himself of the Gaspee and its deprivations of his profitable illegal shipping ventures.
Conclusion. John Brown and the Providence area men were lawfully trying to serve a warrant to arrest Dudingston for a civil suit and perhaps even bring in the ship Gaspee itself for civil court condemnation as an instrument of illegal actions. After Dudingston was shot, perhaps fatally, and Dudingston's papers were found to give Dudingston direct legal authority for his actions, Brown quickly changed plans, burned the Gaspee, destroyed the warrant of arrest, and proceeded to organize and enforce a conspiracy of silence regarding the plan and identity of the Gaspee Riders.