The Founders' Second Amendment

by Stephen P. Halbrook

  Lieutenant MacKenzie wrote the next day: “A Garrison Court Martial assembled this day for the trial of some Soldiers for selling firelocks, and locks to the Country people.”126 One verdict was: “A Soldier of the 4th Reg[imen]t who was tried a few days ago for disposing of Arms to the towns people, has been found guilty and sentenced to receive 500 lashes.” This may have been a slip of the pen or a misprint, as fifty lashes would have been a cruel but not unusual punishment, but 500 lashes may have killed the defendant. MacKenzie also noted: “A serjeant and two Soldiers of the 38th Reg[imen]t tried for the same crime, have been acquitted.”127

  Gage perceived and foretold a great decentralized force of American marksmen waging guerrilla warfare, which would be most difficult to repress. He wrote to Dartmouth on March 4:

  The most natural and eligible mode of attack on the part of the people is that of detached parties of bushmen who from their adroitness in the habitual use of the firelock suppose themselves sure of their mark at a distance of 200 rods [sic—yards or meters?]. Should hostilities unhappily commence, the first opposition would be irregular, impetuous, and incessant from the numerous bodies that would swarm to the place of action, and all actuated by an enthusiasm wild and ungovernable.128

  The annual memorial of the Boston Massacre of 1770 was held on March 6, MacKenzie noted in his diary. Joseph Warren gave the address from the pulpit from which hung a black cloth. He was “attended by all the most violent fellows in town, particularly Hancock, the Adams’s, Church, Cooper, and the rest of the Select Men.”129 Warren’s words were restrained, although hissed at by British officers in attendance. “The towns people certainly expected a Riot, as almost every man had a short stick, or bludgeon, in his hand; and it was confidently asserted that many of them were privately armed.”130 Fortunately, no violence erupted.

  Search and seizure for contraband goes hand-in-hand with entrapment, and the colonial epoch was no exception. The diary entry for March 9 by Boston merchant John Rowe stated: “This morning a Country Fellow who had Bought a Gun from one of the Soldiers was punished by them in the Modern Taste ofTarring & Feathering & carried in a Cart through the main Streets of the Town.”131 The patriot version of the incident ran thus: “An honest countryman . . . was inquiring for a firelock; a soldier heard him, and told him, he had one which he would sell; away goes the Ignoramus, and after paying the soldier very honestly for the gun, (which was an old one without a lock) & was walking off, when half a dozen seized him, & hurried the poor fellow away under guard, for a breach of the act against trading with soldiers . . . .”132

  Thomas Ditson, the country boy in question, affirmed in an affidavit, “I enquired of some Townsmen who had any Guns to sell; one of whom I did not know, replied he had a very fine Gun to sell.”133 Since the one who offered the gun was a soldier, Ditson continued:

  I asked him if he had any right to sell it, he reply’d he had, and that, the Gun was his to dispose of at any time; I then ask’d him whether he tho’t the Sentry would not take it from me at the Ferry, as I had heard that some Persons had their Guns taken from them, bur never tho’t there was any law against trading with a Soldier; . . . I told him I would give four Dollars if there was no risque in carrying it over the Ferry; he said there was not . . . . I was afraid . . . that there was something not right . . . and left the Gun, and coming away he followed me and urg’d the Gun upon me . . . .134

  When he finally paid money to the soldier, several other soldiers appeared and seized Ditson, whom they proceeded to tar and feather.

  The soldier swore in his affidavit, however, that it was a case of a rebel trying to obtain arms and urging a soldier to desert. The citizen said “that he would buy more Firelocks of the Deponent, and as many as he could get any other Soldier to sell him . . . .”135 Lieutenant Frederick MacKenzie noted in his diary:

  A Country fellow was detected this day in buying arms from a Soldier of the 47th Reg[imen]t. The men of that Regiment immediately secured him, and having provided the proper materials, they stripped, and then Tarred & feathered him, and setting him upon a Truck, in the manner paraded him, in the afternoon through most parts of the town, to The Neck. This matter was done with the knowledge of the Officers of the Regiment, altho they did not appear in it, and it gave great Offence to the people of the town, and was much disapproved of by General Gage. Arms of all kinds are so much sought after by the Country people, and that they use every means of procuring them; and have been successful amongst the Soldiers, several of whom have been induced to dispose of Arms or such parts of Arms, as they could come at. Perhaps this transaction may deter the Country fellows from the like practices in future.136

  The incident created another cause célèbre for the patriots. Samuel Adams described the Ditson affair in a letter as follows:

  A simple Country man was inveigled by a Soldier to bargain with him for a Gun; for this he was put under Guard and the next day was tarred and feathered by the Officers and Soldiers of the 47. . . . We are at a Loss to account for this Conduct of a part of the Army in the face of the Sun unless there were good Assurances that the General [Gage] would connive at it. However, he says he is very angry at it.137

  In a letter to Richard Henry Lee dated March 21, Adams suggested that Gage “is afraid of displeasing his Officers & has no Command over them.”138 The Committee of Correspondence was enquiring into the Ditson incident and other abuses. To Adams, it was another episode in the scheme to disarm the colonists, as was the following event:

  Last Saturday a Waggon going from this Town into the Country was stopped by the Guards on the Neck, having Nine Boxes of Ball Cartridges which were seisd by the Troops. Application has been made to the General, by a private Gentleman who claimd them as his property. The General told him that he would order them to be markd as such, but they could not then be delivrd.139

  While that allegation was consistent with Gage’s policies to search for and seize arms and ammunition, it is doubtful that a general of Gage’s caliber would have countenanced the particularly unsoldierly treatment of Ditson, a breach of discipline that would only create friction with the populace. Gage explained in a missive to Dartmouth:

  A Man from the Country who says he was seduced into the Quarters of the 47th Regiment to purchase some of their old Cloaths and Arms, but accused by the Regiment to have artfully mingled with the Soldiers to buy their Arms and Ammunition and tempt them to dessert, was Seized by Order of the Commanding Officer, tarred feathered and carried thro’ some of the Streets. The Moment it was known I sent to stop them and release the Man, for I could not look upon the Proceeding, so below the Character of Soldiers, without expressing the highest Indignation at it. The Town of Belerica, of which the Man is an Inhabitant, has sent me a very insolent and threatening Remonstrance upon the Subject, and it will create a good deal of Work for the Courts as Soon as they are Open.140

  However, events were moving too fast for the courts to administer justice for a long time—several years to be sure. The years 1774 and early 1775 followed a familiar pattern. In the aftermath of the Boston Tea Party and the subsequent Intolerable Acts, the British ministry sent General Gage to restore order. While the Divan debated the disarming of the inhabitants, Gage seized their gunpowder. This prompted the colonists to arm themselves even more, while the soldiers executed search-and-seizure operations to confiscate firearms.

  Instead of a return to normalcy in which the colonists would once more be dutiful subjects of His Majesty, the Americans were only becoming more rebelllious. The time had come to cut off the supply of all arms and ammunition.

  CHAPTER 3

  The Arms Embargo and Search and Seizure at the Neck

  MEAN WHILE, the British ministers undertook to cut off firearms and ammunition from their source. News traveled slowly from England across the Atlantic, but in December 1774 the colonists learned that two months before, King George and his ministers had decreed a ban on importation of firearms into the colonies. Present at the Court at
St. James on October 19 were “The King’s most excellent Majesty in Council,” including the Earl of Rockford, Lord Viscount Townshend, the Earl of Dartmouth, Lord Mansfield, the Earl of Suffolk, and Lord North. The ministers decreed:

  whereas an Act of Parliament has passed in the Twenty Ninth Year of the Reign of his late Majesty King George the Second, intitled, “An Act to empower his Majesty to prohibit the Exportation of Saltpetre, and to enforce the Law for impowering his Majesty to prohibit the Exportation of Gunpowder, or any sort of Arms or Ammunition, and also to empower his Majesty to restrain the carrying coastways of Saltpetre, Gunpowder, or any sort of Ammunition.”1

  And His Majesty judging it necessary to prohibit the Exportation of Gunpowder, or any sort of Arms or Ammunition, out of this Kingdom, doth therefore, with the advice of his Privy Council, hereby order, require, prohibit and command that no Person or Persons Whatsoever (except the Master General of the Ordnance for his Majesty’s Service) do, at any time during the space of Six Months from the date of this Order in Council, presume to transport into any parts out of this Kingdom, or carry coastways any Gunpowder, or any sort of Arms or Ammunition, on board any Ship or Vessel, in order to transporting the same to any part beyond the Seas or carrying the same coastways, without Leave and Permission in that behalf, first obtained from his Majesty or his Privy Council, upon Pain of incurring and suffering the respective Forfeitures and Penalties inflicted by the aforementioned Act. . . .2

  In addition, the Crown dispatched orders to the colonial governors and British navy to halt the importation of arms and ammunition into the colonies.3 Dartmouth wrote to Gage:

  His Majesty having thought fit, by His Order in Council this Day, to prohibit the Exportation from Great Britain of Gunpowder, or any sort of Arms or Ammunition, I herewith inclose to you a Copy of the Order, and it is His Majesty’s Command that you do take the most effectual Measures for arresting, detaining & securing any Gunpowder, or any Sort of Arms or Ammunition, which may be attempted to be imported into the Province under your Government, unless the Master of the Ship, having such Military Stores on board, shall produce a Licence from His Majesty, or the Privy Council for the Exportation of the same from some of the Ports of this Kingdom.4

  Dartmouth enclosed secret papers with the orders, explaining: “That you may be fully informed of the Motives for the Caution we have used, and the Steps We have taken for guarding against an Importation into the Colonies of Gunpowder, Arms & Ammunition, I think fit to send you in Confidence, & for your own Information, the inclosed Copies of such Papers as have passed upon that Occasion.”5

  The enclosures were letters from Sir Joseph Yorke to Lord Suffolk, and from Suffolk to Dartmouth.6 Yorke, the British ambassador to The Hague,7 sounded the alarm during August–October 1774 about American procurement of arms and gunpowder. While calling the notorious contraband trade between Holland and North America in teas and linens unworthy of note, Yorke warned that “the Polly, Capt. Benjamin Broadhelp bound to Nantucket in the province of New York, . . . has shipped on board a considerable quantity of gunpowder.” Among other firms, Amsterdam’s House of Crommelin was a chief culprit in exports to the colonies.8

  Yorke next reported the alarming intelligence “that the quantity of gunpowder shipped for New York on board the [vessel?] formerly mentioned amounts, as I am positively assured, to three hundred thousand pounds.” That enormous quantity seems exaggerated. Yorke continued: “The Dutch export likewise a pretty large quantity from their Island of St. Eustatia, which is the center of all contraband in that part of the world.” Artillery was also being distributed from that Caribbean island.9

  The Earl of Suffolk forwarded the letters to Lord Dartmouth, describing them as concerning “large quantities of gunpowder which are said to be purchased in Holland, shipped for some of the ports in North America.”10 Yorke later wrote the earl:

  I am informed from Amsterdam that an English brigantine [ship] of 60 tons burthen called the Smack (or some such name) commanded by Benjamin Page was arrived there from Rhode Island, addressed to Mr. Hodgson on a merchant [ship], sent expressly to load different sorts of firearms; and that Hodgson had already in execution of his commission put on board about 40 small pieces of cannon.11

  Benjamin Page’s name had previously surfaced as a suspect in Britain’s investigation of an attack in 1772 on the British armed schooner Gaspee as it enforced the revenue laws against Rhode Island shippers.12 At any rate, Suffolk lost no time in transmitting Yorke’s latest intelligence to Dartmouth.13

  This was the complete correspondence that Dartmouth forwarded to Gage regarding the decision to prohibit export of arms and gunpowder to the American colonies. It illustrates how the perceived right of the colonists to keep and bear arms to protect their liberties depended on commercial intercourse in arms and ammunition and how the Crown would seek to repress such trade to maintain its power. Interestingly, none other than Benjamin Franklin appears to have orchestrated the export of arms and ammunition from Holland, France, and Spain on behalf of the patriots.14

  While not the subject of the correspondence sent to Gage, Ambassador Yorke unsuccessfully sought to persuade Dutch authorities to suppress the export of munitions to America. But an armed British cutter anchored near Amsterdam and blockaded the Rhode Island ship Polly and others bound with munitions for America.15 Yorke eventually pressured the Dutch officially to restrict the export of arms and ammunition to America, but the lively commerce continued to thrive.16 When the British sailed away from Amsterdam the following April, the Americans recommenced their gunrunning.17

  Responding to Dartmouth’s correspondence in a letter dated December 15, Gage acknowledged receipt of the above orders on December 3 and confirmed that he distributed them to the other colonial governors:

  Your Lordship’s Circular Letter of the 19th of October, inclosing an Order of the King in Council to prohibit the Exportation of Arms Gun-Powder or other Military Stores from Great-Britain is duely received. And I have concerted Measures with the Admiral and the Commissioners of the Customs for Stopping and Securing all Military Stores that shall be attempted to be imported into this Province except by Licence from His Majesty or the Council.

  The Circular Letters for the other Governors have been forwarded.18

  Gage also acknowledged receipt of a copy of Sir Joseph Yorke’s Letter to the Earl of Suffolk, which “confirms the Report spread here of Peoples sending to Europe for all kinds of Military Stores. I hope this intelligence is received in time to give a Chance of intercepting the Brigantine from Rhode Island with the 40 small Pieces of Ordnance on Board.”19 Gage sought immediate implementation of the prohibition on import of arms into the colonies.

  The Royal instructions and the secret letter from Lord Dartmouth to the colonial governors prohibiting the importation of firearms and ammunition into America was quickly revealed by the governor of Rhode Island, and copies of those dispatches leaked to the patriots. Before Gage had a chance even to confirm receipt of the order, the Boston Gazette reported this new violation of the colonists’ rights as follows:

  We learn from undoubted Authority, that Lord Dartmouth, Secretary of State, has wrote a circular Letter to the Governors upon this Continent, informing them, That his Majesty has thought fit, by his Order in Council, dated the 19th October 1774, to prohibit the Exportation from Great Britain, of Gun Powder or any Sort of Arms or Ammunition, and has signified to them his Majesty’s Command, that they do take the most effectual Measures for arresting, detaining and securing any Gun Powder or any Sort of Arms or Ammunition, which may be attempted to be imported into the Province over which they respectively preside, unless the Masters of the Ship having such Military Stores on Board shall produce a License from his Majesty or the Privy Council for the Exportation of the same from some of the Ports of Great-Britain.20

  Upon receiving word of the arms embargo, the Boston Committee of Correspondence sent the news by Paul Revere to their friends in New Hampshire, warning them that two
British ships would be proceeding to Fort William and Mary at Portsmouth to secure the Crown’s materiel. On December 14, some 400 armed men approached the fort by boat and overran it.21

  That same day New Hampshire Governor John Wentworth wrote an urgent missive informing General Gage of the attack, noting that the intruders “by violence carried away upwards of 100 barrels of powder belonging to the King, deposited in the castle.” Wentworth learned that they would be back the next day to seize the remaining arms unless Gage could send help. He added: “This even too plainly proves the imbecility of this government to carry into execution his Majesty’s order in council, for seizing and detaining arms and ammunition imported into this province, without some strong ship of war in this harbour . . . .”22

  The rebels returned the next day, as Governor Wentworth predicted, and took away “many cannons, &c., and about sixty muskets.” (Lord Percy wrote that they seized “1500 stand of small arms.”23) On the third day of the disturbances, Wentworth further informed Gage—who had not sent help—that “the town is full of armed men who refuse to disperse,” although “the people abstain from private or personal injuries . . . .”24

  A New Hampshire patriot justified this action, describing the import ban as a violation of the right to keep and bear arms. “A Watchman” recalled the lesson of the ancient Carthaginians, who complied with the demand “that they must deliver up all their Arms to the Romans,” only to be slain. He continued: