When Gen. Gage Proclaimed Martial Law

I sometimes see people write that the arrival of Gen. Thomas Gage as royal governor of Massachusetts in May 1774 placed the town of Boston under “martial law.” That’s a misunderstanding.

Gage was indeed commander-in-chief of the British army in North America, but the ministry in London made him governor in the normal civil process under Massachusetts’s 1692 charter. Other men with military appointments also served as colonial governors, and Gov. William Shirley had also been the North American commander-in-chief.

Gage brought troops with him, and stationing those troops in Boston (and later in Salem and Marshfield) meant that civilians had to follow certain rules, but that didn’t constitute “martial law.” That term has a particular meaning in the British and American legal systems, referring to the suspension of ordinary legislation and justice. Gage didn’t take that step in 1774.

In fact, Gage tried to keep the Massachusetts courts operating that summer and fall. The Patriot movement closed those courts down, starting in the western counties. Gage did adjourn the Massachusetts General Court early in the summer after it chose delegates to the First Continental Congress, but he had the power to do so under the regular charter, and he summoned a new legislature in early September. [I discuss how that turned out in The Road to Concord.]

Gage really did declare martial law on 12 June 1775—almost two months after the Revolutionary War began. On that date he issued a proclamation that began:

WHEREAS the infatuated multitudes, who have long suffered themselves to be conducted by certain well known Incendiaries and Traitors, in a fatal progression of crimes, against the constitutional authority of the state, have at length proceeded to avowed rebellion; and the good effects which were expected arise from the patience and lenity of the King’s government, have been often frustated, and are now rendered hopeless, by the influence of the same evil counsels; it only remains for those who are entrusted with supreme rule, as well for the punishment of the guilty, as the protection of the well-affected, to prove they do not bear the sword in vain.

And finally got around to saying:

And whereas, during the continuance of the present unnatural rebellion, justice cannot be administered by the common law of the land, the course whereof has, for a longtime past, been violently impeded, and wholly interrupted; from whence results a necessity for using and exercising the law martial; I have therefore thought fit, by the authority vested in me, by the Royal Charter to this province, to publish, and I do hereby publish, proclaim and order the use and exercise of the law martial, within and throughout this province, for so long time as the present unhappy occasion shall necessarily require; whereof all persons are hereby required to take notice, and govern themselves, as well to maintain order and regularity among the peaceable inhabitants of the province, as to resist, encounter, and subdue the Rebels and Traitors above-described by such as shall be called upon those purposes.

(The imperfect transcription here seems to be the best text of this document on the web.)

Gage didn’t write that proclamation. It came from the pen of Gen. John Burgoyne (shown above), who had arrived in Boston in May, after the war had begun. In a letter to Attorney General Edward Thurlow on 20 August, Burgoyne stated:

…I am sometimes called upon to draw a pen instead of a sword. If the proclamation for the exercise of martial law, the correspondence with [Charles] Lee, or the answer to [George] Washington upon the subject of rebel prisoners, fall into your hands, I request you to consider those productions with all the allowances your candour can suggest—not as voluntary undertakings, but proceeding from a principle to refuse no task assigned to me, and to deal out vigour where I could in this great cause, though by the exercise of a weapon for which I was most unfit.

In eighteenth-century genteel language, that was the equivalent of, “Hey, take a look at what I wrote!” For posterity Burgoyne kept a copy of the 12 June proclamation in his handwriting labeled “Drawn up by me at the request of General Gage.” So he wasn’t really hiding his work on this proclamation.

TOMORROW: The clauses offering lenience.