How Did the Sons of Liberty Bowl Gain Its Name?

Yesterday I quoted from a report of an 1873 special meeting of the Massachusetts Historical Society where a member displayed the silver bowl that Nathaniel Barber had commissioned from Paul Revere one hundred and five years before.

That year the bowl came back to Boston after decades of being owned by a man in New York.

That same page in the M.H.S. Proceedings went on to say:

The name “Sons of Liberty” is said to have been adopted here from its having been used in a speech in Parliament by our friend Colonel [Isaac] Barré. The fellowship under the name here was formed after the passage of the Stamp Act, and was first called in a Boston paper “The Union Club.” It was composed mostly of mechanics, and held secret meetings, at which the risings and other measures were planned. The principal committee met in the counting-room of Chase & Speakman’s distillery, in Hanover Square.

That report didn’t link the “Fifteen Associates” named on the bowl to the “Union Club” or “Sons of Liberty,” except in the general way that they were all on the same side of the pre-Revolutionary political divide.

Three years later, the Catalogue of the Loan Collection of Revolutionary Relics: Exhibited at the Old South Church described the same bowl this way:

Silver Bowl. For some years previous to the Revolution a number of gentlemen known as the ”Sons of Liberty” used to meet and discuss the questions of the day. In 1768, the Colonial Assembly of Massachusetts Bay voted to raise a Committee of Correspondence with her Sister Colonies on their grievances. The British Ministry demanded the repeal of this act. The Assembly voted “not to rescind,” and in commemoration of this vote the Sons of Liberty had this massive Punch Bowl made.

That description thus presented the fifteen men listed on the bowl as “the ‘Sons of Liberty.’” Not just Sons of Liberty, but the Sons of Liberty.

In 1881 The Memorial History of Boston included Edward G. Porter’s chapter on “The Beginning of the Revolution.” That weighty history mashed together the “party of Boston mechanics” who organized the first anti-Stamp Act protest in 1765 (as named by the Rev. William Gordon) with “the Sons of Liberty” who used the silver punch bowl in 1768. In fact, they were two separate groups; not one name appears on both lists.

Other authors followed suit, soon calling it “the Sons of Liberty bowl.” And after the bowl came on the market in 1949, as described by Museum of Fine Arts curator Ethan Lasser, Arts Digest referred to it as “Paul Revere’s celebrated Sons of Liberty Punch Bowl, thought by some to rank third among American historical treasures, after the Declaration of Independence and the Constitution.” [The phrase “by some” is doing a lot of work there.]

The current webpage for the artifact is titled “Sons of Liberty Bowl” and refers to “the Liberty Bowl.” The bowl does indeed have the words “Liberty” and “Librties,” and a picture of a Liberty Cap, inscribed on it. But the phrase “Sons of Liberty” was attached over a century later.

I agree that the fifteen men named on the bowl were Sons of Liberty as Boston used that term in the late 1760s. Nathaniel Barber and Daniel Malcom were particularly active in resisting royal officials. But they weren’t the only, the first, or the leading Sons of Liberty in town.

And this isn’t the only surviving punch bowl associated with Sons of Liberty in Boston, either. The Massachusetts Historical Society has a porcelain bowl owned by Benjamin Edes, one of the group Gordon credited for those anti-Stamp Act protests.

“Bruised and splintered by the bullets of the British soldiers”

As shown yesterday, Capt. Daniel Malcom’s gravestone still stands in Copp’s Hill Burying Ground.

Indeed, it’s one of the featured attractions there, with signage pointing out how the stone is pitted, reportedly by British soldiers’ musket balls.

The uppermost round mark on the stone was produced by the carver, not by a musket. It’s the eye socket of the skull facing right. A very similar design appears on Ann Malcom’s stone nearby and on the Rev. John Barnard’s gravestone in Marblehead, both from 1770.

But there’s clearly other damage to the Daniel Malcom stone, divots in the middle of the text. I went looking for more information about those marks and was surprised by what I found.

The earliest printed mention was a note in the back of Urania: A Rhymed Lesson, a poem published by Oliver Wendell Holmes, Sr., in 1846, seventy years after the British military evacuated Boston. It quoted Malcom’s marker and added:

The gravestone from which I copied this inscription is bruised and splintered by the bullets of the British soldiers.

I’d be pleased to hear about earlier mentions. Unlike a quotation or phrase that one can search for exactly, this fact could be stated in many ways.

A couple of years after Holmes’s poem, the April 1848 issue of the New England Historical and Genealogical Register stated:

There are marks upon the stone, and tradition says that the British soldiers made use of it as a target during their occupation of Boston, at the commencement of the Revolution.

The 4 Aug 1849 Boston Statesman newspaper quoted this item from the reformist Boston Chronotype:

Mean Revenge.—During a stroll through Copp’s Hill burying ground, a few days ago, a gentleman directed our attention to the following inscription on a grave stone:— . . .

The stone exhibits marks of violence, and our informant—who is an antiquarian, versed in the genealogy of almost every family buried on Copp’s Hill—stated that Capt. Malcolm [sic] had rendered himself extremely obnoxious to the British troops, and that a short time after his death a file of soldiers was drawn up and discharged a volley of musketry at his grave stone. Our informant said that in his younger days he had heard several eye witnesses related the story. The marks of the balls are distinctly visible at the present day. We might search long to find a more despicable species of revenge than this.

That article was reprinted later that year in Scientific American.

Assuming this story was accurate, the next question is when such vandalism took place. Malcom died in 1769, when British regiments were in Boston and his defiance of royal authority was recent. Those soldiers (or officers) might have seen Malcom in action. But if people had seen redcoats shooting at his grave then, there would surely be complaints in the vigorous local press.

Vandalism would more likely have gone unreported during the siege of Boston, with no opposition newspapers in town and bigger stories to print. That would mean the soldiers (or officers supervising them) were angered by the “true Son of Liberty” phrase on the stone rather than direct knowledge of Daniel Malcom.

Yet another possibility is that the damage was produced by something other than British muskets, but saying that made for a better story. The unnamed “antiquarian” in 1849 referred to “several [unnamed] eye witnesses” to the actual shooting, however.

I’d also like to know when the plaque for Malcom, shown here, was put up inside Old North Church. It refers to him being “Safe from British Bullets.” Was that an allusion to the scars on his gravestone nearby?

COMING UP: John Malcom’s welcome to Newport.

“The Remains of Captain Daniel Malcom”

On Thursday, 26 Oct 1769, the Boston News-Letter announced:

On Monday last departed this Life, Capt. DANIEL MALCOM, of this Town, Merchant, in the 44th Year of his Age: His Remains are to be interred To-Morrow at half after Three o’clock Afternoon.

The following Monday, 30 October, the Boston Gazette reported:

On Friday last were interred the Remains of Captain Daniel Malcom of this Town Merchant, who died a few Days before in the 44th Year of his Age.

By Means of his honest Industry, he left his Family in good Circumstances. And tho’ this Gentleman was one whom the Nettleham Baronet had stigmatiz’d in his infamous Letters, his Funeral was attended by a long Train of his Fellow Citizens, as a Token of Respect to the Family of one who in his Life was zealously attached to the Liberties of his Country.

The “Nettleham Baronet” was Sir Francis Bernard, the royal governor who had sailed away from Boston a three months earlier. He had mentioned the 1766 stand-off between Malcom and the Customs service in reports to London, and those letters had been leaked back to Boston—which only enhanced Malcom’s local reputation.

In fact, Malcom’s profile was so high that even his grave marker made news, in the 17 November Boston News-Letter:

The following Inscription is on the Grave-Stone of the late Capt. Malcom.

Here lies buried in a Stone Grave 10 feet deep, Capt. DANIEL MALCOM, Merchant, who departed this life October 23d 1769. aged 44 Years.

A true Son of Liberty.
A Friend to the Publick.
An Enemy to Oppression.
And one of the foremost in Opposing the Revenue Acts on America.

That stone, shown above courtesy of Find-a-Grave, stands in the Copp’s Hill Burying Ground.

In addition, there’s a memorial plaque inside Old North Church, as shown here on Vast Public Indifference. That inscription must have been put up years after the captain’s death. It doesn’t use the long s like the gravestone, and it refers to “British Bullets” while in 1769 Bostonians still saw themselves as British.

Daniel Malcom’s widow Ann died the following April, aged only forty.

TOMORROW: Balls for Capt. Malcom.

John Malcom, Customs Officer

I wish I could find more sources on Capt. John Malcom’s years in Québec.

Select Documents in Canadian Economic History, 1497–1783, compiled by Harold A. Innis in 1929, quotes at least one business advertisement by him, but it’s not an easy book to stumble across in the U.S. of A.

I’m guessing that Malcom ran into some business reverses because in 1769 he not only moved back to New England, but he took a job helping to collect His Majesty’s Customs.

For a merchant captain like Malcom, joining the Customs service meant switching sides in a long-running conflict. In Boston, younger brother Daniel Malcom was being lauded for resisting Customs officers trying to search his property in 1766 and for testifying against officers seizing the Liberty in 1768.

I suspect that Malcom became especially unpopular as a Customs officer precisely because he’d been a New England ship captain. He wasn’t like Henry Hulton or John Robinson, British bureaucrats without local ties. Instead, like Benjamin Hallowell, Jr., he’d worked among fellow New England mariners. He knew their tricks. His neighbors expected better of him.

Malcom would probably have preferred to remain a merchant if he could. In eighteenth-century British society, men aspired to be “independent,” earning a good living from their land or other investments. Working for a salary, however solid, was seen as dependence on someone else.

In Malcom’s case, his first job was as a tide surveyor, which seems to have been in the middle of the bureaucracy, supervising the tide waiters but not being in charge of the money. That looks like a big comedown for someone used to commanding his own ship.

Still, that rank might have been enough for Malcom to qualify as a gentleman, and social status was certainly a recurring theme in his conflicts with other men. After joining the Customs office, he began to use “Esquire” after his name.

There may be more information about this appointment in British government records. I don’t even know when in 1769 it took place, though one clue is that Malcom’s family apparently returned from Canada in August.

On 14 Oct 1769, Isaac Werden wrote from Québec to his employer Aaron Lopez (shown above), enclosing a financial note to “John Malcom Esqr., In his Majesties Customs at Newport, Rhode Island.” In that same letter Werden called Malcom “a drole mortal.” Obviously, Werden was acquainted with Malcom and knew that he would be found in the Newport Customs office by that date.

Twelve days after that letter was written, Daniel Malcom died.

TOMORROW: Boston mourns a Son of Liberty.

The Malcoms Coming Back to Boston

In the published Boston town records are some lists of people arriving in Boston by ship in the 1760s.

Each set of entries starts by identifying the ship: for example, “Danl. Malcom Sloop Rose from Halifax” on 31 Oct 1765. Then come names and sometimes brief descriptions of the passengers.

These records show a couple of John Malcom’s trips back to Boston.

• 15 Dec 1767: On a schooner from Quebec, “Capt. John Malcom”
• 1 Feb 1768: On a sloop from Halifax, “Capt. John Malcom,” mariner

They also show that in this period Malcom was legally not considered a resident of Boston, or else he wouldn’t have gone on these lists.

Another interesting entry appears on 4 Nov 1765, a sloop from Quebec: “Mickl. Malcom to the care of Capn. Malom [sic].” That captain is probably Daniel, still based on Boston. Michael Malcom might have been his aging father or his six-year-old nephew, John’s son.

Sarah Malcom, the matriarch of the family, died in Boston on 23 Sept 1767 and was buried on Copp’s Hill. Her gravestone is quite weathered, but a nineteenth-century publication makes clear she was the wife of Michael Malcom, who died in 1775.

I puzzled over one mystery among these passenger lists. A entry for 4 Aug 1769 says a schooner from Quebec brought “Mary Malcom Wife to Jno. Malcom & 3 Children.”

John Malcom married Sarah Balch in 1750, and they had children together through the following decade. In the 1790s a Boston woman identifying herself as Sarah Malcom, John Malcom’s widow, sent petitions to the British government.

The Boston directory for 1789 listed Sarah Malcom as running a “boarding-house, [on] Ship-street.” And the 15 Sept 1800 Boston newspapers reported that Sarah Malcom, aged seventy-three, had died just a few hours after her forty-year-old daughter, also named Sarah Malcom. Those facts line up pretty well with the records of John Malcom’s wife and daughter from the 1750s.

So where does “Mary Malcom Wife to Jno. Malcom” come in? I wondered if John Malcom’s first wife Sarah might have died in Québec, he remarried to a woman named Mary, she died, and he remarried to a second Sarah. I couldn’t find any records of death and remarriage, but those events might have happened outside of Massachusetts. Given how many women of the time were named Mary and Sarah, that scenario’s not as outlandish as it might seem.

But the simplest explanation is that whoever was making those lists of incoming passengers just wrote down Sarah Malcom’s name wrong. After a few years in Québec, Capt. John Malcom’s family was moving back to Boston.

TOMORROW: More change in 1769.

Capt. Daniel Malcom, Brandy, Wine, and Punch

In the mid-1760s, while John Malcom was trading out of Québec, his younger brother Daniel Malcom was becoming prominent in Boston.

On 24 Sept 1766, three high officials came to his home on Bennett Street in the North End:

• Benjamin Hallowell, Comptroller of the Customs for the Port of Boston
• William Sheaffe, Deputy Collector of the Port
• Stephen Greenleaf, Sheriff of Suffolk County

Those men had brought some lesser Customs officers as well, to do the heavy lifting.

Malcom didn’t really want the honor of their visit. Those authorities had come to search his cellar for brandy and wine allegedly smuggled onto shore without the legal duties being paid.

To be technical, the Customs officers wanted to search Malcom’s whole cellar, while he was happy to show them part of it but insisted he’d rented a locked portion to his friend William Mackay, so it wasn’t up to him to open that. Also, Malcom insisted the writs should name the officers’ source of information, which of course they didn’t want to do. And occasionally he brandished (empty) pistols to make his point.

This produced a stalemate that lasted hours. A crowd grew to watch and/or intimidate the legal authorities. Among the people involved in the incident were John Ruddock, Paul Revere, John Pigeon, John Tudor, Nathaniel Barber, and the boys of the North Latin School. Ebenezer Richardson, whom I’m speaking about tonight, hovered just off-stage.

Ultimately the Customs officials gave up on this particular search, but they used Malcom’s intractability and the threat of crowd violence to lobby for beefing up their powers. Gov. Francis Bernard ordered an inquiry. The many depositions thus created are printed in George G. Wolkins’s “Daniel Malcom and Writs of Assistance,” a study presented to the Massachusetts Historical Society in 1924 and now available through JSTOR.

After that event, the Boston town meeting started to name Daniel Malcom to committees on merchants’ issues, particularly complaints about the Customs. Late in 1768 he was on hand for the Liberty riot, and his testimony about events was sent to London and even published in the St. James’s Chronicle.

Malcom, Mackay, Barber, and twelve more friends commissioned Revere to make and engrave a silver punch bowl, now in the Museum of Fine Arts. The text on that bowl celebrates the Massachusetts General Court’s refusal to rescind the Circular Letter of 1768. It’s called the “Sons of Liberty Bowl,” but those fifteen men weren’t the town’s political leaders. Daniel Malcom was the only one at the head of a crowd.

TOMORROW: 1769, a year of change.

“His Business immediately calling him back to Quebec”

John Malcom spent November 1759 to August 1760 as a prisoner of war in French Canada.

He sailed back to Québec at the end of the year, apparently to scout for business opportunities, only to have his ship iced in.

In the winter of 1761 Malcom made a month-long trek over lake and land back to Boston.

So what do we hear about him doing next? Moving to Québec!

In the 16 Feb 1761 Boston Gazette Malcom announced:

Boston 9 February 1761.

THIS Day came to Town John Malcom, from Quebec in Canada, and desires one Thomas Power a Suttler at Halifax, immediately to come to Boston and settle all his Accompts with said Malcom without fail, as his Tarry at Boston cannot be long, his Business immediately calling him back to Quebec before the Lakes breaks [sic] up.

I’d think he could have written to Power directly, but advertising in the newspaper might have carried some legal weight.

On 2 March, the captain told Boston Gazette readers:

JOHN MALCOM will set out this Day Week [i.e., one week from today] for Quebec, by the Way of Albany, Lake George, Crown-Point, Montreal and Trois-Rivieres; and will receive Letters to carry to each Place at Mr. John Scollay’s Shop near the Town-Dock.

Perhaps, I thought, he was just going back to pick up his ship and sail it ’round to Boston again. But no, on 6 April his wife advertised in the Boston Gazette:

All Persons to whom John Malcom of Boston is indebted, are desired to bring in their Accounts to Sarah Malcom in order for Payment, as she intends soon to go out of the Province; and all indebted to said Malcom, are desired to make Payment to her directly. Said Malcom has a very commodious House at New Boston to Lett, with three Rooms on a Floor, and very good Accommodations.

In this case, “New Boston” meant what was also known as the West End. That side of the peninsula was less densely built up than the areas closer to the outer harbor.

The Malcoms evidently settled in Québec to help integrate one of the British Empire’s newest provinces into its trading system—and make money along the way. The captain maintained ties with Boston, though. Malcom announced in the 21 Feb 1763 Boston Gazette that in about ten days he was sailing his ship Friends up to Québec and could take freight or passengers.

Younger brother Daniel might have gotten involved in this trade, too. In the 25 Apr 1763 Boston Post-Boy, he advertised:

As DANIEL MALCOM intends to leave Boston for Quebec in 10 or 15 Days; any that has Demands on him are desired to apply to him. And any Persons indebted to said MALCOM are desired to pay him, or come and give their Note on Interest.—N.B. Said MALCOM goes by Land to Quebec.

Daniel doesn’t appear to have stayed in Canada for long, though. Church records and newspapers show him and his wife Ann in Boston at several points in the mid-1760s.

For the next few years John Malcom kept Québec as his trading base. But he didn’t keep out of trouble.

TOMORROW: An international incident.

“The Rout taken by Capts Malcom and Holmes, from Quebec”

Yesterday’s posting brought John Malcom back to Boston in August 1760 after more than eight months as a prisoner of war in French Canada.

On 24 November, the Boston Evening-Post reported that “Capt. Malcom…arrived here last week from Ireland.” That was probably John’s younger brother, Daniel Malcom, but there’s just enough time for John to have made that round trip as a way to get his sea legs back, so I can’t say for certain.

It looks more likely that John returned to trading with a voyage to a different port: Québec!

One might think he’d had enough of that region. But viewed another way, it made sense for John Malcom to start sailing to the British Empire’s new city. In his months in Canada, he probably learned the language, observed the culture, made some contacts.

That first voyage turned out to be harder than he planned. According to the 16 Feb 1761 Boston Evening-Post, Malcom’s sloop Wilmot got iced in on the St. Lawrence River, along with a score of other ships.

Malcom and John Holmes, master of the Sally out of Philadelphia, decided to return by land.

The same issue of the Evening-Post explained:

On the 8th of January they left Quebec in a Sleigh, in company with 12 other Sleighs having Goods for Montreal, and travel’d on a good Road to Trois Rivieres: From thence they went up the River on the Ice, and passing over Sorrell, arrived at Montreal in 2 Days:—

After tarrying there 2 Days they proceeded in their Sleigh to Chamble, St. John’s and Isle au Noix, which they reached in 3 Days more: During this Time the Season was moderate for Winter.—

From the Isle au Noix they travel’d 45 Mile on Lake Champlain in one Day, but the next Morning after going some Miles, finding the Ice grow weak, they left their Sleigh, and went ashore with their Horse and Baggage on the South-East Side of the Lake; it being bad Travelling in the Woods, it was 5 Days and as many Nights before they arrived at Crown Point.—

On their Way they met an Officer with Dispatches for the Governors of Montreal and Quebec; with Accounts of the Death of his late Majesty King George the Second, & of the Accession of his present Majesty King George the Third to the British Throne.—

At Crown Point they tarried one Day, and having procured another Sleigh, they proceeded to Ticonderoga, and over Lake George to Fort George: Thence proceeded to Fort Edward, but the Road not being broke they travelled with only their Horse:—

From Fort Edward they went in a Sleigh to Albany: From whence they came to Town by Land on Monday last the 9th of February.

The captains brought news that Maj. Robert Rogers was on his way to Detroit, another new British possession. That information came from Capt. Jonathan Brewer and other officers in the rangers.

When Malcom and Holmes made this trip, they were traversing a route that just a couple of years earlier had crossed the border between two rival empires. I think that was why the Fleets devoted so much of their newspaper to this account: for their readers, the possibility of traveling or shipping goods over land to Montreal and Quebec really was news.

TOMORROW: John Malcom makes his move.

“Taken on the 6th Day of November last by 9 Frenchmen”

Yesterday we left Capt. John Malcom in mid-1759, plying the route between Boston and the British Empire’s new conquest of Louisbourg, relaying information about developments in the Seven Years’ War.

That war caught up with Malcom in the fall. This is how the Boston News-Letter reported the story on 28 Aug 1760:

In Capt. Gardner came Passenger from Quebec, Capt. John Malcom of this Town, who with one of his Hands was taken on the 6th Day of November last by 9 Frenchmen, as they were endeavouring to get Wood off the Island of St. Barnaby for the use of the Vessel,

who after he was taken was immediately strip’d of all his Cloaths and barbarously used by the Enemy for four Days at that Place, and then obtaining Liberty to go to Quebec, was taken twice in Twenty-eight Days;

He informs that after he arrived at Quebec, he was often threatned to be given to the Indians to be massacred, they thinking him to be a Spy.—

And that on the 14th of November his Sloop, called the Sally, (his Mate being then on board endeavouring to get to Boston,) off of Gaspee, was taken by the Ship Two Brothers, Francis Boucher Commander, mounting 20 Carriage Guns; by which Accidents the said Malcom not only lost his Vessel, but likewise to the amount of near give Hundred Pounds Sterling in Cash, and other Effects, then on board.

Since Gen. James Wolfe’s forces had taken Québec City on 13 Sept 1759, I presume the “Quebec” where Malcom spent months as a prisoner of war was the area around Montréal, still in French hands until September 1760.

On 7 Apr 1760 the Boston Post-Boy reported about a couple of Malcom’s crew in a letter from Col. Joseph Frye at Fort Cumberland (now once again called Fort Beauséjour):

About [30 January] there came in eight Men, one of whom was a New-England Man, one Irishman, and the rest Italians and Spaniards; who inform’d me they Deserted from a French frigate that lay froze in, at the Head of Gaspee Harbour.

The two former belong’d to a Vessel commanded by Capt. Malcom of Boston, who was taken on by the above Frigate, as she was returning from Quebec, where she had been on a Trading Voyage.

As for younger brother Daniel Malcom, on 5 May 1760 he was home in Boston, preparing to sell a 50-ton schooner called the Betsy by auction at Harris’s Wharf.

TOMORROW: Back to trading, back to Quebec?

“Capt. John Malcom arrived here in 10 Days from Louisbourg”

On 26 July 1758, the French inside Louisbourg surrendered to a besieging British force led by Gen. Jeffery Amherst.

John Malcom may have been part of the British military in this campaign rather than the one in 1745. In any event, he quickly became a link between that new addition to the British Empire and Boston.

On 15 Jan 1759 the Boston Gazette told readers:

Last Saturday Night Capt. John Malcom arrived here in 10 Days from Louisbourg, who informs us, That the Day he came out he met his Majesty’s Ship Arundel commanded by Capt. Martin [actually Richard Matthews], who desired of him a Pilot that was acquainted with the Harbour of Louisbourg, which he put on board; Capt. Martin inform’d him he had a large Quantity of Money on board for the Garrison, and a Packet:

In Capt. Malcom came Passengers Capt. [Robert] Rogers of the Rangers, Capt. Bennet of the Brig Sally belonging to Philadelphia, lately cast away there.

Capt. Malcom also informs, That he saw a large Ship to the Eastward of the Arundel, which he suppos’d to be one of the Fleet that came out with her.

Meanwhile, younger brother Daniel Malcom was also at sea, according to the 19 February Boston Gazette:

Late last Night Captain Parrot arrived here in 18 Days from South-Carolina, in whom came Capt. Malcom of this Town, who sail’d from Falmouth 8 Weeks ago, in the Earl of Leicester Packet, Capt. Morris, bound to New-York; but meeting with Captain Parrot last Monday, bound hither, he went on board him. . . .

Capt. Malcom brought no English Prints, as he left the Packet in a hurry, which he imagines arriv’d at New-York last Wednesday.

By this time, it appears, the Boston Gazette printers expected readers to know “Capt. Malcom of this Town” was Daniel, returning from England.

The 28 May Boston Evening-Post reported:

Friday last arrived here Capt. Malcom in 9 Days from Louisbourg, and informs, That a Snow had arrived there from Admiral [Philip] Durell, with Advice that the Ice coming down in such great Quantities he was not able to get above half Way up to Gaspey, and before the Snow left him was drove down again almost to the Mouth of the River, but that the Admiral intended to make another Attempt to get up.—

That last Wednesday se’nnight his Majesty’s Ship Northumberland of 70 Guns, Lord Colvill, arrived there in 37 Days from England; and that the next Day Admiral [Charles] Saunders came in with 12 Sail of the Line from Halifax:

Capt. Malcom also informed, that off Caparouse Bay he spoke with the Nightingale Frigate, having under her Convoy 12 Transports from New-York, with Col. [Simon] Fraser’s Highland Regiment on board, also bound to Louisbourg: And that prodigious large Quantities of Ice were still floating about near the Harbour of Louisbourg.

This was still within the “Little Ice Age.”

It’s striking how much information Malcom and the printers were passing on in a time of war. No “Loose lips sink ships” concern there! Instead, the newspapers were telling the world where the British military payroll was, and when Adm. Durell might make into the St. Lawrence River in time to support Gen. James Wolfe’s push on Québec.

I think that reflects something Hannah Tucker described in a 2018 seminar in the context of commercial shipping, as I summarized:

the uncertainty of Atlantic crossings, the difficulty of communication, and merchants’ and ship owners’ inability to supervise sea captains closely meant that they preferred an open information system to a closed one. It was in nearly everyone’s interest to know about other people’s business. If you tried to keep information within your firm, you could easily find yourself cut off with no information at all.

The same culture might have prevailed in a time of war. After all, there was little chance that a French agent could pick up information from a Boston newspaper and transmit it in time to use that advantage. So why not gossip about every ship you saw at sea? That information could actually be helpful to your side.

TOMORROW: But the empires were still at war.

“Capt. Malcom of this Place, who was taken by a French Privateer”

In the late 1750s, Britain’s cold war with France once again boiled up into a hot war.

That presented dangers for merchant captains like John and Daniel Malcom, as well as opportunities.

In seeking British government assistance years later, John Malcom declared:

I have had thirteen Different Commissions in your Majesty’s Land Service in North America the two last French and Spanish warrs that is Past. I have Serv’d from a Ensign to a Colonel. I have been in all the Battles that was Fought in North America those two warrs that is Past except two and at every Place we Conquerd and Subdued our Enemys to your Majesty.

That’s quite a claim, and he didn’t provide any specifics. Were his “Commissions” in the militia, in a colonial army, as a privateer captain, or even as a contractor?

That vagueness makes it hard to figure out where John Malcom was when his surname appears in Boston newspapers. For example, the 6 Oct 1755 Boston Gazette had a supplement with news of two men missing from “Capt. Malcom’s Company” in Maj. Joseph Frye’s force after the Battle of Petitcodiac in what’s now New Brunswick. What that John Malcom, a relative, or someone with no connection?

The 23 Dec 1756 Boston News-Letter reported that a French schooner had captured a “large Sloop, belonging to Carr and Malcolm,” in Martha Brae Harbour on Jamaica. Was that ship partly owned by John Malcom? Or might that owner have been a merchant from distant Scotland?

Adding to the fog is how John’s younger brother Daniel was also a ship’s captain. The 30 May 1757 Boston Gazette reported this adventure for one of the brothers, but which one?

Thursday last came to Town Capt. Malcom of this Place, who was taken by a French Privateer and carried into Port au Prince, from whence he got to Jamaica, and informs, that just as he came away Advice was receiv’d there, that 18 Sail of French Men of War and Transports, and about 7000 Troops, was arriv’d at Port au Prince, very sickly.

I’m struck by how the Boston press referred to “Capt. Malcom of this Place” as if there were only one. Did that mean that John was serving in an army, so Daniel was the only one commanding a ship? Had one of the brothers moved out of Boston, as John would later do? Or was that just sloppy reporting?

On 4 May 1758 the Boston News-Letter reported:

The ———, Vavason, from New York, and the ———, Malcom, from Boston, for Madeira, are taken and carried into Louisbourg.

Not only was that news item short on details, but it came from London, so it was months old. But it couldn’t have been over a year old and refer to the same capture as the last article.

Fortunately, in the summer of 1758 the British Empire took Louisbourg from the French (again). After that, it’s easier to spot John Malcom.

TOMORROW: Back and forth.

The Malcom Brothers on Sea and Land

As I wrote yesterday, the brothers John and Daniel Malcom both became mariners in the middle of the eighteenth century. Here are some of their experiences in the 1750s.

From the 30 Oct 1752 New-York Evening-Post:

HALIFAX, October 14.

On Sunday last a fishing Schooner brought in here Capt. Daniel Malcom and his Men belonging to the Sloop Charming Nancy, from Cork to this Place, whose Cargo consisted chiefly of Sea Coal and Butter, which was cast away at a Place call’d Ship-Harbour, to the Eastward of this Place, where she had put in to avoid the Storm which happen’d on Sunday 7-night [i.e., a week ago]:

She parted her Cables & drove on a Ledge of Rocks, where she stove to pieces in a very little Time; the Men sav’d their Lives by getting on the Rocks, where they tarried 5 Days living upon Butter and Boil’d Dulse (a sort of Sea-Weed) and Cramberrys, which they also boil’d and eat with Butter (without Bread or Meat) ’till they met with said Scooner [sic]; during which Time they sav’d 150 Firkins of Butter and some other Things from the Wreck, which are bro’t in here:

Just before the Vessel struck the Rocks the Captain had put Sixty Guineas into a Purse in order to save them with himself, but upon her striking he jump’d upon Deck and left the Purse and Guineas upon the Table in the Cabbin, which also are lost without any Hopes of Recovery.

Daniel Malcom was undaunted, however. In the 8 Nov 1753 Boston News-Letter he started to advertise “Good Irish BUTTER by the Firkin” for sale at his house on Fish Street. That continued to be his main (public) offering until 1768.

As for older brother John Malcolm, Frank W. C. Hersey wrote: “Litigation was Captain John’s favorite pastime while on shore.”

There might be many stories lurking in the court archives, but the one Hersey told was about a 60-ton sloop called the Sally and Polly. John owned three-eighths of this ship, and Daniel presumably owned the rest. That vessel was lost at sea in 1755 on its way from North Carolina to Cork. (I’ve looked for a newspaper report on this ship with no success.)

Only then did John discover his share of the ship hadn’t been insured. He insisted Daniel had promised to provide coverage.

The two brothers started to take legal action against each other. John swore out writs against Daniel for a total of £155. Daniel responded with a writ for £70.

Finally on 31 July the sheriff of Suffolk County, Benjamin Pollard, sat the Malcoms down and helped them settle their dispute before they wore the constables ragged delivering legal papers.

TOMORROW: The Malcoms go to war (and not with each other).

John Malcom: The Early Years

Back in January I wrote about the mobbing of Customs officer John Malcom on the Sestercentennial anniversary of that event.

The standard study of that attack is “Tar and Feathers: The Adventures of Captain John Malcom,” written by Frank W. C. Hersey in 1941 and available through the Colonial Society of Massachusetts. Alfred F. Young’s The Shoemaker and the Tea Party looks at the same day through the eyes of George R. T. Hewes.

I collected some additional information about Malcom that I didn’t have time to dig through and share in January, so now I’m doubling back to his story. We can call this series “The Further Adventures of Captain John Malcom.” Though really it’s more of a prequel.

First of all, a note about nomenclature: Capt. John Malcom spelled his name without a second L, as did his brother Daniel Malcom. However, many people writing about him spelled the surname in the traditional Scottish style as “Malcolm.” Indeed, Hersey transcribed a petition signed by Malcom which a clerk then labeled as coming from “Mr. Malcolm.”

Because so many historians rendered the name as “Malcolm,” I followed that style in making a Boston 1775 tag for the man years ago. However, in these postings I’m going to use the spellings that individuals preferred.

This story starts in 1721, when Michael and Sarah Malcom arrived in Boston from Ulster, Ireland, where their ancestors had moved from Scotland in the previous century. They brought young children named William and Elizabeth.

On 20 May 1723 Sarah gave birth to a second boy, whom they called John. The family then moved to Georgetown in the district of Maine. Another baby boy, Daniel, arrived on 29 Nov 1725, followed by Allen in 1733 and Martha in 1738.

Michael Malcom invested in the Massachusetts “Land Bank or Manufactory Scheme.” In 1745 he was assessed to pay £16, on the high side of those investors.

Also in 1745, wrote Hersey, young John Malcom “served as an ensign in the Second Massachusetts Regiment, commanded by Colonel Samuel Waldo, at the siege of Louisbourg; and this same year he was captain of a vessel which carried dispatches from Louisbourg to Boston,” presaging his maritime career. However, John Malcom’s name also appears as a private enlisting in Capt. Elisha Doane’s company in August 1746.

In 1750 John Malcom married Sarah Balch at Boston’s Presbyterian Meeting-House. The Rev. John Moorhead baptized five of their children between 1751 and 1758.

Younger brother Daniel Malcom also came to Boston and married Ann Fudge, and they also had children starting in 1751. He became a prominent member of the Anglican Christ Church’s congregation. While John named one of his sons Daniel, I’ve found no evidence Daniel named any of his boys John.

Both John and Daniel went to sea, made Boston their home port, and rose to be merchant captains. By the late 1740s a captain or two named Malcom was sailing out of Boston for Cape Fear, North Carolina; Antigua; Annapolis; Philadelphia; Honduras; Bristol, England; and Youghal, Ireland. By the 1750s the Malcoms were owners or part-owners of ships. They traded all over North America, the Caribbean, and Britain—and occasionally Cadiz and Lisbon.

It wasn’t illegal to trade with Portugal, Spain, or Caribbean islands claimed by other empires, but there were higher tariffs on most goods traded that way. Ship captains usually tried every trick they could to minimize those tariffs. Many of those methods made that trade into illegal smuggling, but in that period Boston merchants generally figured that as long as they didn’t get too blatant the Customs service wouldn’t come down hard on them.

The real hazards in ocean trade were natural disasters and war.

TOMORROW: Wrecked and captured.

Hanson on Copp’s Hill Burying Ground, 22 Oct.

On Sunday, 22 October, Old North Illuminated will host two events featuring John G. S. Hanson speaking about the nearby Copp’s Hill Burying Ground.

A tour of that cemetery with Hanson is already sold out, but it’s still possible to take in his talk “The Stones Cry Out” in the church or online.

The event description says:

Many people visit Boston’s historic burying grounds to see the monuments of historical figures like Samuel Adams, Paul Revere, John Hancock, Crispus Attucks, Samuel Sewall, Prince Hall, and Cotton Mather. But few pause to read the inscriptions on the stones of other early “every day” Bostonians, whose names and lives are now long forgotten.

For those who take the time to look and “listen” closely, these gravestones convey highly personal messages that not only reveal a glimpse into their personal lives, but also the literature that they read, the hymns they sang, and the poetry that moved them. These stones also can tell us a great deal about colonial Bostonians’ attitudes toward life, death, and eternity.

Join burial ground expert John Hanson for “The Stones Cry Out” and explore the history and poignancy of the Copp’s Hill Burial Ground epitaphs, followed by a reception and multimedia presentation at the Old North Church, as we illuminate history through the artistic disciplines of poetry, verse, and music.

Most of the names in that description are buried at the Granary Burying Ground, but Copp’s Hill is the resting-place of Mather and Hall, as well as firebrand merchant captain Daniel Malcom, both men named Robert Newman, Benjamin Edes, and Shem Drowne.

John G. S. Hanson is the author of Reading the Gravestones of Old New England (McFarland, 2021), based on years of research into grave markers and the sources for their texts.

The lecture is scheduled to take place from 5:15 to 6:30 P.M. People can register for in-person or online attendance through this webpage, and Old North Illuminated asks those attendees to donate what they can.

“Nathaniel Barber, Esq; Captain of the North-Battery”

Nathaniel Barber (1728–1787) was an insurance broker with an office in the North End of Boston.

He became one of the more gung-ho Whigs in Boston, though he didn’t hold significant political offices or (to our knowledge) publish political essays.

Barber married Elizabeth Maxwell in 1750, and the couple started having children the next year with Nathaniel, Jr. Barber probably worked as an ordinary merchant before opening his insurance office by 1762.

On 24 Sept 1766, Barber was in the crowd watching the Customs officials try unsuccessfully to search the warehouse of Daniel Malcom for smuggled goods. Not coincidentally, Lt. Gov. Thomas Hutchinson reported that “Malcolm is a principal underwriter” of Barber’s insurance firm.

In two depositions after that event, Barber insisted that he had no idea who told him “that Upon Mr Malcoms House being attacked the Old North Bell was to Ring” to assemble defenders, and denied having passed on that rumor to magistrate John Tudor.

Barber also claimed that “from the appearance and behavior of the People assembled who were worthy Gentlemen and good sort of People, there was not the least appearance of disorder, much less Opposition to any legal Authority.” (The Customs officials didn’t see things the same way.)

Here are three notable mentions of Barber in the newspapers, starting with the Boston Gazette for 8 Aug 1768:

We hear that the Week before last was finished, by Order and for the Use of the Gentlemen belonging to the Insurance Office kept by Mr. Nathaniel Barber, at the North-End, an elegant Silver BOWL, weighing forty-five Ounces, and holding forty-five Gills.

On one Side is engraved within a handsome Border—To the Memory of the glorious NINETY-TWO Members of the Honorable House of REPRESENTATIVES of the MASSACHUSETTS-BAY, who undaunted by the Insolent Menaces of Villains in Power, and out of strict Regard to Conscience, and the LIBERTIES of their Constituents, on the 30th of June 1768, VOTED NOT TO RESCIND.—Over which is the Cap of Liberty in an Oaken Crown.

On the other Side, in a Circle adorned with Flowers, &c. is No. 45, WILKES AND LIBERTY, under which is General Warrants torn to Pieces. On the Top of the Cap of Liberty, and out of each Side, is a Standard, on one is MAGNA CHARTA, the other BILL OF RIGHTS.—

On Monday Evening last, the Gentlemen belonging to the Office made a genteel Entertainment, and invited a Number of Gentlemen of Distinction in the Town, when 45 Loyal Toasts were drank, and the whole concluded with a new Song, the Chorus of which is, In Freedom we’re born, and in Freedom we’ll live, &c.

The silversmith who made that bowl was Paul Revere, and today it’s a treasure of the Museum of Fine Arts. The song was “The Liberty Song,” printed the month before.

In the 30 Apr 1770 Boston Gazette:

Yesterday se’nnight a Daughter of Mr. Nathaniel Barber, at the North End, was Baptized at the Reverend Dr. [Andrew] Eliot’s Meeting-House, by the Name of Catharine Macaulay. The same Gentleman about 18 Months ago had a Child christened by the Name of Oliver Cromwell, and about 18 Months before that, another by the Name of Wilkes.

Edes and Gill’s newspaper had reported the christening of each boy, with a note that little Wilkes “had No. 45, in Bows, pinn’d on its Breast” at the ceremony.

On 1 Oct 1772, the Boston News-Letter reported:

His Excellency the Governor has been pleased to Commission Nathaniel Barber, Esq; Captain of the North-Battery in this Town, with the Rank of Major.

You might ask why Gov. Hutchinson granted a prestigious rank to someone so obviously in the political opposition. In that period he was trying to use his patronage powers as commander-in-chief of the militia to peel men away from the Whigs.

COMING UP: Did that work?

“A bayonet wrested from one of the pursuers”

Yesterday I quoted a deposition by a sergeant of the 29th Regiment about his run-in with John Ruddock, justice of the peace and captain of militia in Boston’s North End, 250 years ago this month.

Justice Ruddock was used to getting his way in that neighborhood. He was a big man—probably 300 pounds or more. In September 1766 he told Sheriff Stephen Greenleaf that he was “Unable to Walk far [and] must be Carried in his Chaise.” At that time, Ruddock was rattling off excuses why he couldn’t come help the sheriff and Customs officers search the storehouse of Daniel Malcom for smuggled goods. Because Ruddock was no fan of royal officials.

When the Crown government stationed troops in Boston in 1768, Ruddock was among their most active opponents. He was one of the magistrates who prosecuted Capt. John Willson for allegedly encouraging enslaved Bostonians to revolt. He arrested soldiers for disturbing the peace in both January and February 1769.

Sgt. John Norfolk of the 14th Regiment complained about another such confrontation:

That on or about the 22d. February 1769, in the evening, he heard a great noise in the street; and found it was occasioned by some Soldiers and Inhabitants who were at high words amongst whom was one Ruddock, who said he was a Justice of the peace, and expressed the words, Go fetch my broad sword and Fusee and Damn the Scoundrels, let us drive the Bloody backs to their Quarters, Send for my Company of Men, for I think we are men enough for them.

He the deponent did what was in his power to prevent their Quarreling and in striving to part the Soldiers and Inhabitants Received great abuses from a son of the said Ruddocks who took him by the hair and pulled him into a passage leading into the yard of Said Ruddocks house, shutting the Door upon him, and by repeated blows laid him on the ground quite insensible after he came to himself thay opened the door and kick’d him out of the passage, at the same time they took the opportunity of taking him his side, his Bayonet which he wore (being then a Corporol), and which is now in the possession of said Ruddock who hath refused to return it tho’ properly demanded, both by himself and a Serjeant sent By his Captain for that purpose.

According to Norfolk, Justice Ruddock wasn’t slowed at all by his weight that night. And his son—either John, Jr., or Abiel—yanked him into the family home.

Of course, the justice had his own view of the situation. He thought he was keeping the peace in the face of rowdy military men. Here’s how the Whigs reported the same event for newspapers in other colonies:

As some sailors were passing near Mr. Justice Ruddock’s house, the other night, with a woman in company, they were met by a number of soldiers, one of whom, as usual with those people, claimed the woman for his wife; this soon bro’t on a battle in which the sailors were much bruised, and a young man of the town, who was only a spectator, received a considerable wound on his head; a great cry of murder, brought out the justice, and his son, into the street; when the former who is a gentleman of spirit, immediately laid his hands upon two of the assailants, and called out to one who pretended to be an officer, and all other persons present, requiring them in his Majesty’s name to assist him as a magistrate, in securing those rioters;

instead of this, he was presently surrounded with thirty or forty soldiers, who had their bayonets in their hands, notwithstanding the unseasonable time of night; some of whom endeavoured to loose his hold of the persons he had seized, but not being able to do it, they then made at him with their fists and bayonets; when he received such blows as obliged him to seek his safety by flight;

they struck down a young woman at his door holding out a candle, and followed him and son into the entry-way of his house with their bayonets, uttering the most profane & abusive language, and swearing they would be the death of them both;

upon the first assault given to the magistrate, one of the persons present posted away to the Town-House, and acquainted the commanding officer of the picquet guard, of what was taking place; but it seems the officer did not apprehend himself at liberty to order a party out to secure, or disperse those riotous drunken soldiers.

Due enquiry is making for the discovery of those daring offenders, in order to their being presented to the grand jury, a bayonet wrested from one of the pursuers in the entry, may lead to a knowledge of the owner, and be a means of procuring proof.

The bayonet that the Ruddocks came away with is the link between these two accounts.

On 27 March, the Whigs reported a grand jury had brought charges “against a number of soldiers, for assaulting with drawn cutlasses and bayonets; smiting and wounded [sic], John Ruddock, Esq; one of his Majesty’s justices of the peace, when suppressing a riot at the north part of the town, late at night, in which they were actors.”

As of 21 April the royal judges still hadn’t begun that trial, the Whigs reported, “nor has any thing been done upon it, as we can yet learn.” Norfolk said nothing about being tried, so probably the whole matter dropped, leaving everyone angry.

Smuggling in Boston, Before the Revolution and 18 Sept.

One of the sources John Tyler used for Smugglers and Patriots: Boston Merchants and the Advent of the American Revolution (1986) are the records of Ezekiel Price’s marine insurance office. Merchants were happy to lie to the Customs office about where their ships were headed, but they didn’t want to invalidate their insurance policies with misinformation. Many of the voyages that Price underwrote were therefore clearly going outside imperial bounds.

Tyler also reported that written evidence survives for smuggling by Thomas Hancock, the governor’s rich uncle; Shrimpton Hutchinson, the other governor’s cousin; Whig organizer William Molineux; fence-sitting merchant John Rowe; ropemaker Benjamin Austin; future tea consignee Richard Clarke; and Massacre victim Edward Payne, among others.

In 1766 the Boston Customs office tried to search the storehouse of Daniel Malcom, an incident that still shows up in histories of American search-and-seizure laws. There’s strong evidence that Malcom really was a smuggler, even aside from how he refused to let the Customs men onto his property.

The most prominent merchant accused of smuggling before the Revolutionary War was, of course, John Hancock. The fortune he inherited from his uncle was certainly based in part on illegal trade (as well as government contracts). But the case that John Hancock himself oversaw serious smuggling is still unproven.

Peter Andreas’s Smuggler Nation: How Illicit Trade Made America is the latest book to ply this region.  It covers the period from colonial times to the present, with smuggling dominated in different eras by molasses, slaves, drugs, booze, and people.

Andreas, a professor in the Department of Political Science at Brown University, will speak at the Massachusetts Historical Society on Wednesday, 18 September. There will be a reception at 5:30, and Andreas is due to speak at 6:00. This event costs $10 for people who aren’t M.H.S. members, and reservations are required. But if his book’s theme holds true, you can probably find someone to sneak you in.

“The Writs Were Ordered to Be Issued”

Yesterday I quoted from James Otis, Jr.’s argument in the writs of assistance case, as set down afterward by John Adams. Otis and his colleague, Oxenbridge Thacher, represented Boston’s merchants in arguing that the Massachusetts court should not issue an open-ended writ allowing the local Customs office to search anywhere for smuggled goods.

They lost.

For Chief Justice Thomas Hutchinson (shown here as a younger man), the case hinged on whether his court was a “Court of Exchequer” and whether similar courts in England issued writs of assistance. Hutchinson, in addition to being a probate judge and Lieutenant Governor, was the colony’s leading historian. Referring to himself in the third person, he provided this account of the case:

The court was convinced that a writ, or warrant, to be issued only in cases where special information was given upon oath, would rarely, if ever, be applied for, as no informer would expose himself to the rage of the people.

The statute of the 14th [year of the reign] of Charles II. authorized issuing writs of assistance from the court of exchequer in England. The statutes of the 7th and 8th of William III. required all that aid to be given to the officers of the customs in the plantations, which was required by law to be given in England. Some of the judges, notwithstanding, from a doubt whether such writs were still in use in England [because of an article reprinted from a London magazine], seemed to favour the exception, and, if judgment had been then given, it is uncertain on which side it would have been.

The chief justice was, therefore, desired, by the first opportunity in his power, to obtain information of the practice in England, and judgment was suspended. At the next town [where the court met], it appeared that such writs issued from the exchequer, of course [i.e., as a matter of course], when applied for; and this was judged sufficient to warrant the like practice in the province. A form was settled, as agreeable to the form in England as the circumstances of the colony would admit, and the writs were ordered to be issued to customhouse officers…

The Massachusetts court issued writs of assistance to Customs officials in that province. The court in New Hampshire, which usually followed Massachusetts’s lead, did the same.

However, as Oliver M. Dickerson described in “Writs of Assistance as a Cause of the Revolution,” his chapter in Richard B. Morris’s The Era of the American Revolution, the judges in other American colonies resisted the Customs service’s requests for open-ended writs. Judges delayed rulings, they sent for advice from London and then ignored the results, they asked other colonies’ courts what they had done, they lost the paperwork, they reworded the writs to be less general.

Furthermore, in Boston the Customs officials had a hard time enforcing their writ, particularly in an attempted search of merchant Daniel Malcom’s warehouse in 1766. Malcom refused to unlock a room for the searchers, no justice of the peace would cooperate, and a grumpy crowd gathered.

Charles Townshend’s Revenue Act of 1767, which established new taxes, also explicitly authorized writs of assistance. The Customs Commissioners based in Boston had forms printed up and distributed to other colonies. But they still didn’t get the broad powers they sought. Though the Massachusetts court had decided otherwise, American society came to regard open-ended writs as unconstitutional.

Eventually Otis and Thacher’s argument became institutionalized in the U.S. Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The new republic thus rejected Hutchinson’s fear that “a writ, or warrant, to be issued only in cases where special information was given upon oath, would rarely, if ever, be applied for.”

TOMORROW: The political effect of the writs case.

“A Knock at the Door” Panel, 4 Nov. at the Old State House

And speaking of writs of assistance, as I did yesterday, next Wednesday I’ll be on a public panel discussing how those fit into American legal history. Here’s the announcement of that event from the Bostonian Society:

A Knock at the Door: Three Centuries of Governmental Search and Seizure
Wednesday, November 4, 2009, 6:30 p.m., at the Old State House
Free and open to the public

The protection against unreasonable governmental search and seizure has long been considered a fundamental American right. This concept has its roots in patriot James Otis’s 1761 legal petition opposing the Writs of Assistance and general property searches, a case heard in Old State House.

Even though guaranteed by the Fourth Amendment to the U.S. Constitution, this right has been challenged and debated many times throughout our history. Today we are confronted with new debates over wiretapping, immigration raids, and school drug searches.

Join our panelists, public historian J.L. Bell, legal scholars Frederick Lane and Joseph McEttrick, and Kurt Opsahl, in a discussion of the historical origins of this concept, as well as modern challenges to this long-cherished protection of our rights.

The “writ of assistance” that Customs Comptroller Benjamin Hallowell tried to use to search Capt. Daniel Malcom’s house was an open-ended authorization to search for smuggled goods. As the Massachusetts Superior Court under Chief Justice Thomas Hutchinson (shown above) interpreted British law of the time, Hallowell didn’t have to appear before a judge and describe the specific evidence pointing to smuggled goods in Malcom’s house.

Instead, a Customs officer granted such a writ had all the authority he needed to demand assistance from a local magistrate, whom citizens were bound to obey. But, as the September 1766 stand-off outside Malcom’s house demonstrated, local justices of the peace could be reluctant to force the issue, or force open doors. And citizens were even less cooperative.

Stand-off at Captain Malcom’s

And speaking of Paul Revere, as I did yesterday, here’s his sworn testimony about what he saw outside Capt. Daniel Malcom’s house in Boston’s North End on 24 Sept 1766, in the form of a deposition copied and sent to London:

I Paul Rivere of lawfull age testifieth and Sayeth that as I the Subscriber on Wednesday 24th Septr last between 3 and 4 oClock post meridium was going to the north part of the Town I saw a number of men I believe above fifty standing near the Revd Mr. Mathews [sic—Samuel Mather’s] meeting house and in the lane leading to the North Grammar School

I went up to some of them and asked why they were standing there

they told me they understood the Custom House Officers were agoing to break open Capt. Malcom’s house to search for some casks of Wine that had been run,

I stopt some time I believe about an hour and asked where the Officers where [i.e., were]

they told me they were gone to get assistance from some Justices of the Peace, soon after Capt. Benjn Hallowell [Comptroller of the Customs in Boston] came (I thought he looked very angry)

a number of Gentlemen gathered round him, soon after Mr. [justice of the peace John] Tudor came and then Mr. Sheriff [Stephen] Greanleaf, I saw a number of People gather round him but I did not hear any of their discourse only Mr. Greanleaf asked them if they would assist him in the discharge of his Office

I think I heard Mr. Benjn. Goodin say he would assist him out of doors but would not go into Capt. Malcom’s house.

While I was there I did not see any officer go near Capt. Malcom’s house if they had they might have spoken to Capt. Malcom for as I passed by Capt. Malcom’s house going down the land to Mr. [justice of the peace Joseph?] Gardner I saw Capt. Malcom look through the Window

I am certain the people that were gathered there had not any intent to hinder the officers in the discharge of their duty but would have protected them all that lay in their power

I did not hear that the old North bell was to ring nor that Capt. Malcom had encouraged any person to come to his Assistance, and while I tarred there the people behaved with decency and good order.

Paul Rivere

So there were at least fifty men standing around watching the Customs officers closely, Revere recalled. But that was in no way an attempt to interfere with or intimidate those officers, or any local officials they summoned to help them under writs of assistance.

And as for rumors that the crowd would ring the Old North Meeting-house bell to summon an even bigger crowd, Revere and his fellow deponents insisted those were just rumors, or something only schoolboys were saying, or words that had been misunderstood, or...

Eventually, Justice Tudor told the Customs officers that evening was coming on, when their writ would expire, so they might as well go home. The boys who were watching for a riot had to content themselves with razzing Ebenezer Richardson, who they assumed had informed on Malcom and his tenant, “for the great Prize he’d got.”

This posting was prompted by Caitlin G. D. Hopkins’s tribute to Capt. Malcom, who died in 1769. While this stand-off outside his house cemented Malcom’s reputation as a fervent Son of Liberty, we can’t be sure sure that he would have broken with London in the end. He was an Anglican, and his brother John actually worked for the Customs service at another port.