Browsing: Legal Papers of John Adams, Volume 2

1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.

2. The libel of John and Jacob Penhallow, agents for the owners of the McClary, and George Wentworth, agent for the crew (“the captors”), against the Lusanna in the New Hampshire Maritime Court, dated 11 Nov. 1777, alleged that the McClary The libel prayed process and condemnation and distribution “as the said laws resolves and resolutions direct.” DNA Microcopy 162, Case 30, No. 2. For the Congressional and state laws involved, see notes 3 108 , 4 109 , below. None of the copies of the libel used in later phases of the case contains the third “cause sett forth.” See PCC No. 44, fols. 265–266; DNA Microcopy 214, Case 6. Whipple's notes (at note 2 152 below) show that it was “That the property on Board was British Manufacture.” This basis for the forfeiture either may have been stricken from the libel on the basis of JA's arguments against it, text at notes 26 176–180 below, or Sewall may have tried to argue that the libel as quoted here should be construed to include it. As to the identity of “Mr. Sewall,” see note 43 above.

3. The Resolve of 25 Nov. 1775, a response to George Washington's complaints about the lack of machinery for dealing with captures, was drafted by a committee of which JA was a member. See 3 JCC 357–358; 3 JA, Diary and Autobiography   346–349. It provided for the condemnation as prize of enemy military and transport vessels and cargo; set up a requirement that no privateer cruise without a commission from Congress; recommended that the states establish prize courts sitting with juries, and subject to certain venue provisions; provided for an appeal from such courts “in all cases;” and provided for the distribution of proceeds, confirming prior awards by General Washington. 3 JCC 373–375. The provision relied on here, as modified by a Resolution of 19 Dec. 1775, was, See Jameson, “The Predecessor of the Supreme Court,” in J. Franklin Jameson, ed., Essays in the Constitutional History of the United States 6–8 (Boston and N.Y., 1889). The Resolution of 23 March 1776, which authorized the fitting out of armed vessels, provided in pertinent part, Other resolutions provided for the distribution of proceeds of captures made by vessels of the United Colonies, or a single colony, or by land forces. Id. at 231–232. For JA's role in the passage of this resolve, see 2 JA, Diary and Autobiography  233 note 10; 3 id. at 371–375

4. No “June” act or resolve of the New Hampshire legislature has been found which deals with this question. The first reference is thus in all probability to the Act of 3 July 1776, which expressly incorporated the resolve of Congress dated 23 March 1776, note 3 108 above, and, perhaps to avoid incorporating the Resolve of 25 Nov. 1775, note 3 108 above, with its provision for appeal to Congress, further provided that vessels should be subject to condemnation, with their appurtenances and cargo. Actions under both provisions were to be brought in a specially created “Court Maritime,” which was to be held in Portsmouth or elsewhere in the county of Rockingham and was to sit with a jury under elaborate provisions made by the act. Appeals lay only to the Superior Court, except where a Continental vessel was involved. Act of 3 July 1776, 4 Laws of New Hampshire 25–32. The New Hampshire Resolve of 5 Sept. 1776 extended the jurisdiction of the Court Maritime to the new definition of belligerent contained in a Congressional resolution of 24 July 1776: “All ships and other vessels, their tackle, apparel and furniture, and all goods, wares and merchandises, belonging to any subject or subjects of the King of Great Britain, except the inhabitants of the Bermudas, and Providence or Bahama island.” 5 JCC 606; see N.H. Resolve of 5 Sept. 1776, PCC No. 44, fol. 258.

5. See a copy of the Lusanna's register, taken out at the Custom House, London, 3 Aug. 1776, on the oath of “Shearjashub Bourne of London Merchant,” that he “of London in Great Britain is at present Owner thereof.” Endorsements dated 27 March and 14 July 1777 show changes of master. PCC No. 44, fols. 275–276; DNA Microcopy 162, Case 30, No. 8.

6. See Invoice, and bill of lading, 10 June 1777, for £2124 worth of assorted merchandize, to be shipped aboard the Lusanna by Lane, Son & Fraser, consigned to Bourne at Halifax. DNA Microcopy 162, Case 30, Nos. 13, 14.

7. The MS reads “Doane,” but this is probably a reference to “Invoice of sundry goods shipped on board the Lusanna for Halifax in Nova Scotia by Shearjashub Bourne, Esqr. marked and numbered as per margin and consigned to Messrs. Thomas Cochran and Co. Merchants there in the absence of said Bourne.” DNA Microcopy 162, Case 30, No. 15. The goods, valued at £208 2s., were food and liquor, in casks marked SB.

8. See Deposition of Thomas Casey, Portsmouth, 3 Dec. 1777, DNA Microcopy 162, Case 30, No. 9, in which he testified After describing the voyage and capture of the Lusanna (text at note 41 above), Casey testified that he had He further testified that he paid for his passage, 8 guineas in London and £27 in Portsmouth. On cross-examination by Oliver Whipple, attorney for the Doanes, Casey admitted that he did not “know” that the Lusanna was Bourne's property, but added that he understood from Bourne that there had been some kind of conveyance of the vessel. He further testified that Bourne had never said that he was Doane's factor, and that he, Casey, knew nothing of any such arrangement. Under Whipple's questioning, Casey testified that he had taken the helm during the chase by the McClary in an effort to aid the Lusanna in escaping. The deposition closed with his affirmative answer to Whipple's question, “Do you know that 29 Ib. of Sewing Silk shipped by Mr. James Shepherd was his property?” PCC No. 49, fols. 272–279.

9. Lane, Son & Fraser to Bourne, London, 1 Oct. 1776. DNA Microcopy 162, Case 30, No. 12: See note 27 above.

10. See Deposition of Mary Casey, wife of Captain Thomas Casey (note 8 113 above), Portsmouth, 3 Dec. 1777, DNA Microcopy 162, Case 30, No. 10: On cross-examination by Oliver Whipple for the claimants, Mrs. Casey testified that she had never heard Bourne say that he acted for Doane, but understood that the two were in partnership with Doane's brother; that she did not know who owned the Lusanna's cargo, but that she had known that the silk was Captain Shepherd's. PCC No. 44, fol. 281.

11. See Bourne to Messrs. Thomas Cochran & Co., undated, DNA Microcopy 162, Case 30, No. 31. The letter advised the recipients, Halifax merchants, of the forthcoming arrival aboard the Lusanna of several consignments of provisions which they were to dispose of “to the Best Advantage for the Owners and Adventurers,” accounting with them or Bourne; of consignments of provisions belonging to Bourne, which they were to dispose of “to the best Advantage for my Interest,” accounting with him, Lane, Son & Fraser, or the Doanes; and of goods on bill of lading which they were to see delivered to the consignees, except that the goods “in one other Bill of Lading herewith Inclos'd and marked SB belonging to me you will store and wait the further order of Myself, Messrs. Lane Son & Fraser, Elisha or Isaiah Doane.” Bourne also ordered his correspondents to discharge master and crew and lay up the Lusanna until further orders from himself, Lane, Son & Fraser, or the Doanes. By way of postscript he added, “I Order those Goods to You, lest some Accident should befall me on my Passage there as I do not go out in my own Ship.” PCC No. 44, fols. 303–304.

12. See Deposition of Lot Lewis, mate of the Lusanna, Portsmouth, 4 Dec. 1777, DNA Microcopy 162, Case 30, No. 11. Lewis testified that “he understood by the Register that the said brigantine Lusanna was owned by Mr. Shearjashub Bourne tho' he understood the property was in fact Mr. Elisha Doane's of Wellfleet and covered by Mr. Bourne in order to secure the property in that manner.” After describing the Lusanna's departure from St. Helen's, Isle of Wight, on 13 Sept., and her voyage and capture, he continued, On cross-examination by Oliver Whipple for the claimants, Lewis admitted that he did not “know” that the Gibraltar cargo was King's stores and stated that he had not known the vessel to be Doane's on the original departure from America, but that Captain Wood had told him that Bourne was acting as owner to protect Doane's property. Further questioning on behalf of the libelants brought out that Bourne had said to Lewis that part of the cargo, marked SB, was his. To Whipple's question Lewis answered that he did not “know of” any King's stores aboard the Lusanna when she was taken. Further questioning brought out that the Lusanna had had aboard two swivels, to be used “to answer signals” only, and some small arms and ammunition at the time of capture, and that the McClary had fired at her “eight or ten times” during the chase.

13. See Edward Crosby to “Capt. William Spry Commanding Engineer at Halifax,” 16 July 1777, DNA Microcopy 162, Case 30, No. 36:

14. Bourne's Memorial to the Lords of the Treasury, 30 Jan. 1777, DNA Microcopy 162, Case 30, No. 59. Bourne sought recompense for a portion of the cargo of the brigantine Industry, consigned to him at London, which had been condemned in the Court of Vice Admiralty at Boston in Sept. 1775. See note 25 130 below; text at notes 29–32 above. In support of his application he urged For even more damning evidence, apparently used to bolster the memorial, see the extracts from Bourne's journal, note 8 158 below.

15. The invoice of Lane, Son & Fraser, 10 June 1777, note 6 111 in above, shows that the goods there covered were insured to the value of 10 guineas per 100, “to return £4 pr. cent if sails with convoy and arrives.” PCC No. 44, fol. 292.

16. The so-called Continental Association was “a non-importation, non-consumption, and non-exportation agreement” bridging the gap between the earlier colonial nonimportation agreements and the Declaration of Independence, and seeking to force British redress of colonial grievances through economic sanctions. See Miller, Origins of the American Revolution 385–392. It was signed in Congress on 20 Oct. 1774. After a recital of grievances reminiscent of the Declaration, the Association stated the pledge of its signers “That from and after the first day of December next, we will not import into British America, from Great-Britain or Ireland, any goods, wares, or merchandise whatsoever, or from any other place, any such goods, wares, or merchandise as shall have been exported from Great-Britain or Ireland.” 1 JCC 76. Also banned were the importation of dutied articles and slaves, the consumption of all banned articles, and the exportation of all goods to Great Britain, Ireland and the West Indies after 10 Sept. 1775. Id. at 77. Goods imported before 1 Feb. 1775 were to be reshipped, stored for the duration, or sold with the profits going to relieve Boston; goods received thereafter were to be reshipped. Id. at 78–79. Violations were to be checked by locally chosen committees, See also an annotated text of the Association in 1 Jefferson, Papers, ed. Boyd, 149–150.

17. The position of this statement in the MS on the page facing and directly op posite the notes of Lot Lewis' testimony, note 12 117 above, as well as its substance, suggest that it is a note by JA of the basis of his objection to admission of evidence on the Lusanna's Gibraltar trip. See text at note 11 169 below. JA may refer to 2 Hawkins, Pleas of the Crown 437:

18. Depositions of Baker and McKay have not been found. They were probably passengers or crew members aboard the Lusanna who may have testified orally at the trial. It is also possible that they were Portsmouth insurance underwriters who had tried and failed to sell Bourne insurance on his arrival there.

19. No such letter of Doane's has been located. JA may have meant Bourne's letter to an unidentified correspondent “done in a hurry at Sailing” for Halifax in Sept. 1777. DNA Microcopy 162, Case 30, No. 79. Bourne asked that if the expenses of Shepherd's illness could not be met from resources in the letter's hands, an account should be sent to Lane, Son & Fraser, “for this reason only, as Captain Shepherd has goods on board my Brigantine the Lusanna to the amount of £100 which are insured.” If the goods should be taken by privateers, Lane, Son & Fraser would discharge the account from the insurance proceeds; if the vessel should arrive safely Bourne would pay the account from proceeds of sale of the goods which were consigned to him. See note 27 132 below.

20. Bourne to Lane, Son & Fraser, Halifax, 3 Nov. 1775, DNA Microcopy 162, Case 30, No. 6, informing them that “on the 4th of September last the Brigantine Lusannah belonging to Coll. Elisha Doane of Eastham laded with Oyl 2 Ct. bbl. of which were consigned to your good selves the remainder of the cargo was consigned to me (who married his eldest daughter) sailed from New England for London, and proceeding on our voyage,” was forced into Halifax, “and upon entering the port the brigantine was taken in custody by a King's ship.” The Lusanna was released, then taken again, requiring that Bourne travel to Boston to obtain her release. The letter dealt with other matters including the problems of the Industry, notes 29–32 above, and reported the draft of a bill of exchange on Lane, Son & Fraser for the Lusanna's repairs.

21. Bourne to Lane, Son & Fraser, Halifax, 31 Dec. 1775, DNA Microcopy 162, Case 30, No. 7, repeating the information about the bill of exchange in his letter of 3 Nov., note 20 125 above, and adding: “You will further note that the Brigantine [Lusanna] was seized as the property of Elisha Doane Esqr. of Eastham who belongs to New England by virtue of a general order from Lord Dartmouth.” He then reported that he had obtained the vessel's release at Boston and was about to sail for London, having drawn a second bill of exchange for necessaries. The letter bears the apparently incorrect date of 3 Dec. at the head. The date 31 Dec. which appears at the end is more likely, because Bourne was reported to have been in Boston as late as the 13th. Id., Nos. 112, 113.

22. See note 9 114 above.

23. Bourne to Doane, London, 12 Oct. 1776, DNA Microcopy 162, Case 30, No. 29: After reporting that his presence in England was working to Doane's great advantage, Bourne concluded,

24. Bourne to his wife, 12 Oct. 1776, DNA Microcopy 162, Case 30, No. 30: “The anxiety under which I labour for your and my children's welfare and peace greatly disturbs me, but my expectations of speedily returning affords me some consolation.”

25. As to the role of the Industry in this case, see text at notes 29–32 above. DNA Microcopy 162, Case 30, contains the record of the proceedings in the Court of Vice Admiralty at Boston, including the libel filed against her by Samuel Fitch on behalf of John DeLaTouche, Commander of H.M.S. Halifax, dated 18 Sept. 1775 (No. 37); the claim of Henry Bromfield, agent for the owners of the Industry for vessel and most of the cargo (No. 38); decrees of Nathaniel Hatch, Deputy Judge, dated 10 and 12 Oct. 1775, condemning the unclaimed portions of the cargo, as well as the vessel and claimed portions (Nos. 39, 42); Bromfield's claim of an appeal to the Privy Council, dated 19 Oct. 1775 (No. 45); and an invoice, dated 7 Sept. 1775 (No. 89), and bill of lading, dated 17 July 1775 (No. 56), under which 102 casks of oil and head matter belonging to Doane were shipped aboard the Industry, consigned to Bourne or Lane, Son & Fraser in London. Bourne's journal, note 8 158 below, and his Memorial, note 14 119 above, document his petition to the Lords of Trade.

26. For the depositions of John Hancock, John Bradford, John Emery, Charles Miller, Lazarus Goodwin, and Samuel Emery as to Doane's good character as a patriot, all taken early in Dec. 1777, see DNA Microcopy 162, Case 30, Nos. 72, 70. 73. 71, 69, and 67. Hancock stated in part that Doane was “a friend to his country an advocate for liberty and an asserter of the rights and liberties of mankind.” Id., No. 72. He and the others testified to Doane's services as a member of the General Assembly, selectman, provisioner of the Continental Army, and general supporter of the patriot cause. Ibid. Doane was also given a clean bill of health by the Wellfleet Committee of Correspondence. Certificate of 27 Nov. 1777, id., No. 75.

27. See bill of lading, 10 July 1777, Lane, Son & Fraser, consigning two trunks of merchandize to James Shepherd at Halifax; receipt of Matthew Wood, 10 July 1777 to James Shepherd for 29 pounds of silk to be delivered to him at Halifax; acknowledgment apparently by Bourne, Cowes, 4 Sept. 1777, of indorsement to him by Shepherd of the bill of lading and receipt. DNA Microcopy 162, Case 30, No. 19. See note 47 124 above.

28. The orders, signed by Doane and countersigned by Wood, provided that Wood was to proceed directly to London and on arrival there to “deliver your Cargo to Messrs. Lane Son & Fraser and Mr. Shearjashub Bourne agreeable to Bills of Lading and when you have delivered your Cargo apply to them for further directions about a Freight back &c.” DNA Microcopy 162, Case 30, No. 104. Dated 21 Aug. 1775 and produced from Doane's copy book, according to Wood's deposition of 28 Jan. 1778. Id., No. 118.

29. Probably a reference to the invoice of Doane's goods shipped aboard the Lusanna “on the proper account and Riske of Elisha Doane,” which was apparently also produced at the trial from Doane's copy book. See the invoice, DNA Microcopy, 162, Case 30, No. 103. A similar notation appears on a gauge of the oil obtained by Joseph Doane and consigned to Lane, Son & Fraser. Id., No. 93. Depositions of David Stoddard Greenough, 20 Feb. 1778, and Matthew Wood, 28 Jan. 1778. Id., Nos. 136, 118.

30. See agreement between Wood and Doane, 29 Aug. 1775, providing that Wood was to have “Ten barrels Priviledge” on the voyage to London and the like en route to New England from the West Indies, if the return trip was made that way. Certain arrangements were made for the division of commissions with Bourne, and Wood was granted living expenses of 2s. 6d. while in London in addition to his wages of £30 per month. DNA Microcopy 162, Case 30, No. 105. This document was produced on the trial from Doane's copy book. See Wood's deposition, 28 Jan. 1778, id., No. 118.

31. Presumably Doane's letter of 29 Aug. 1775, reporting the departure of the Lusanna, commending Bourne to the firm's care, asking them to send him £1500 cash with Bourne, and giving instructions for the return cargo, depending on the political situation. See text at note 18 above. There are in the file, however, other letters, dated 12 Feb. 1776 and 17 July 1777 from Doane to Lane, Son & Fraser, giving further instructions. DNA Microcopy 162, Case 30, Nos. 112, 115.

32. See Doane to Bourne, 7 Sept. 1775, inclosing invoice and bill of lading for Doane's share of the Industry's cargo. DNA Microcopy 162, Case 30, No. 109. See also Doane's letter to Lane, Son & Fraser of the same date. Id., No. 108.

33. Doane to Bourne, 17 July 1777, DNA Microcopy 162, Case 30, No. 116: “By your letter of Septr. last which came to hand we had great expectations of seeing you in America before now, but I suppose the difficulty of the times has occasiond your further stay, doubtless by this time you have settled all my affairs to my advantage and your satisfaction. When prudence should direct should be very glad to see you here.”

34. As to the various bills of lading in Bourne's charge, see Bourne to Cochran, note 11 116 above. For Lane, Son & Fraser's, and his own consignments, see notes 6 111 , 7 112 , above. See also invoice and bill of lading of Wm. Edenson & Co., 23 July 1777, consigning goods to the value of £1057 125. 6d. (including £66 8s. 6d. insurance), to Bourne. DNA Microcopy 162, Case 30, Nos. 27, 17.

35. See bill of sale, note 3 103 above.

36. See note 4 109 above.

37. The Resolves of 25 Nov. 1775 and 23 March 1776 are set out in note 3 108 above. That of 24 July 1776 appears in note 4 109 above.

38. That is, the Continental Association, note 16 121 above.

39. Probably a comment that trade would be had in the Mediterranean with people of all of these nationalities as well as with British subjects. The Lusanna did in fact call at Barcelona and bring home cargo from Malaga. See note 27 above.

40. See notes 8 113 , 10 115 , above.

41. Spelling uncertain. Perhaps Roberts v. Schooner Thistle, DNA Microcopy 162, Case 1 (Sp. Com. 1776), an appeal from the Pennsylvania Court of Admiralty. The Thistle had been taken by the privateer Congress while en route from Florida to the West Indies with a cargo of flour, pitch pine, and oak to be sold there. The libel alleged that she was the property of inhabitants of Great Britain (amended to read enemies of the United Colonies), and that she was carrying supplies to the “ministerial army” of Great Britain. The vessel was condemned after a verdict that she was the property in part of inhabitants of Great Britain and in part of enemies of the United Colonies. A special committee of Congress, with Robert Treat Paine a member, reversed on 16 Sept. 1776. The reasons for reversal do not appear in the record.

42. Presumably Alsop v. Ruttenbergh, DNA Microcopy 162, Case 11 (Commrs. of App. 1777), an appeal from the Admiralty Court of Rhode Island. The Frank, originally out of New London, and claimed by Mrs. Alsop, a widow, of Middletown, Connecticut, had been captured by the privateer Montgomery, of Providence. The libel alleged that the Frank was en route from Newfoundland to Jamaica in one of a series of voyages she had made between those ports after obtaining a change of name and register at the latter. She had allegedly carried supplies to the fleet and army at Newfoundland. In an earlier proceeding based on a libel alleging only that she was the property of inhabitants of Great Britain the Frank had been acquitted by a jury. On the second libel, after the court overruled a motion to dismiss based on the earlier acquittal, the jury found that the voyages had been made as alleged and that the Frank was carrying supplies to the enemy. On appeal before JA, James Wilson, and Thomas Burke, the appellants were heard, but the appellees did not appear. On 20 May 1777, the Commissioners reversed the decree and ordered redelivery.

43. Presumably Wentworth v. The Elizabeth, William Jackson et al., claimants, DNA Microcopy 162, Case 2 (Sp. Com. 1776), a case in which Lowell himself was both a claimant and of counsel. The Elizabeth had been seized by three Continental privateers on 3 April 1776, en route from Boston to Halifax carrying loyalists evacuating the former city, their belongings, and goods looted during the evacuation. She and her cargo were libeled as having been recaptured after being in enemy hands for more than 96 hours, and for carrying supplies to the enemy. Under New Hampshire law, which adopted the language of a resolve of Congress, the recaptors of a vessel that had been in the possession of the enemy for more than 96 hours were entitled to one half the proceeds of sale, even if the enemy had not condemned her as prize. Act of 3 July 1776, 4 Laws of New Hampshire 30; Resolve of 5 Dec. 1775, 3 JCC 407. For the provision on supplying the enemy, see note 109 above. Jackson, a notorious tory, later tried for his participation, was one of 29 claimants; most of the remainder were citizens of Boston, like Lowell and John Rowe, whose effects had been taken by the departing loyalists. See Rowe, Letters and Diary 316–317. The vessel's owner, a Portsmouth merchant, also filed a claim. Jackson himself had gone as a passenger aboard the Elizabeth, ostensibly to protect his goods. See generally 1 Adams Family Correspondence   373–374. In Aug. 1776, a jury in the New Hampshire Court Maritime found that the vessel had not been captured as prize by the enemy, and was not carrying supplies to the British fleet and army, and that she and her cargo ought to be restored to the claimants. On the captors' appeal by their agent, Joshua Wentworth (also an owner of the McClary; see note 43 above), the special committee of Congress, which again included Paine, held that vessel and cargo were not forfeit as prize under the resolve of Congress dated 25 Nov. 1775, note 3 108 above, and that the Congressional resolve allowing a portion of the proceeds to recaptors was intended only for vessels which might be condemned as prize by the Law of Nations. The Committee ruled that the owners ought to make reasonable satisfaction for the return of their goods, however. The New Hampshire decree was reversed, and vessel and cargo ordered to be restored on condition that the claimants pay one-twelfth of its value to the recaptors. The report was accepted in Congress on 14 Oct. 1776. See 6 JCC 870–873. See also Clark, George Washingon's Navy 130–132, 136–138, 185–187.

44. Probably a reference to the letter of credit on John Butler of Halifax, which Bourne carried. Compare Whipple's notes of Lowell's argument, text following note 15 165 below. See also note 10 160 below.

45. These five questions are JA's notes of the heads of his own argument, repeated in slightly different form in Whipple's notes. See note 16 166 below.