Dr. Church and the Rule of Law

Even after the Continental Congress strongly disapproved of the idea of trading accused spy Dr. Benjamin Church for an American physician captured by the British, Church kept petitioning for his release from the Boston jail. So did his father, a respected merchant.

Another likely source of pressure on the Massachusetts authorities who were keeping Church locked up was their values. Though the state was still struggling to approve a constitution replacing its royal charter, its political leaders felt a strong commitment to the concepts of natural rights and the rule of law.

Dr. Church was a big test of that system. He’d been high in the Massachusetts Patriot network before the war, a member of the Provincial Congress’s Committee of Safety and Supplies, which organized the resistance to the royal army. He’d been the top-ranking medical officer in the Continental Army. If Benedict Arnold hadn’t switched sides in 1780, we Americans might well use the name “Benjamin Church” as a synonym for “betrayer.”

And yet American authorities didn’t have enough evidence to convict Dr. Church of more than corresponding with the enemy—specifically, with a Loyalist in-law, as he admitted. And even the military and legislative bodies that convicted Church on that charge in late 1775 didn’t have legal authority to do more than expel him from the army and the legislature. The New England governments then locked him up not as a formal punishment but in order to figure out what to do with him.

The idea of torturing Dr. Church to make him say more about his dealings with Gen. Thomas Gage was anathema to the founding generation. Corporal punishments such as whipping were part of that society’s judicial system, slave-labor system, and child-rearing practices. Nevertheless, the founders viewed torture to obtain information from prisoners as both cruel and unreliable.

The Massachusetts authorities also appear to have been troubled by locking up a man (well, a white man of property) who had never been legally convicted and sentenced. There was a war going on, of course, with the British army seizing New York, Newport, Philadelphia, and other American territory. Even so, the authorities had trouble justifying their decision to keep Church in jails for two years, much less five or seven.

In 1776, Connecticut balked and sent Church back to Massachusetts. In 1777, as I discussed in previous posts, Massachusetts jumped on an invitation from the British to treat Dr. Church as a prisoner of war and trade him, but a Boston crowd and the Continental Congress blocked that deal from going through.

The Massachusetts General Court finally decided to get rid of Church by accepting his promise to go into exile. Letting him leave America this way didn’t technically break the state’s promise to the Congress not to free him as part of a prisoner exchange—the state would free him without getting anything back. Except for a return to the rule of law.

On 8 Jan 1778, the House approved

a Resolve permitting Doct. Benjamin Church to take Passage on board the Brigantine Friendship, Joshua Winslow Master, bound for the Island of Martinico.

The chamber then sent this legislation to the Council for its concurrence.

TOMORROW: Yet another change of plan for Dr. Church.

(The photo of the Old State House, where the Massachusetts legislature met in 1777-78, comes from Chris Brown via Flickr, under a Creative Commons license.)