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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0006-0005

Dowse v. Thirty-three Hogsheads of Molasses

DocGroupNo:

1768–1769

Docno: ADMS-05-02-02-0006-0005-0001

Editorial Note

While the affair of John Hancock's Liberty (No. 46) drew public attention, a steady flow of other cases of illicit importation kept merchants, customs officers, and lawyers busy. On 6 September 1768, Joseph Dowse, surveyor and searcher of the customs for the port of Salem and Marblehead, seized thirty-three hogsheads and four tierces of molasses which had allegedly been landed in Gloucester without entry or payment of duties.1 Although another seizure which Dowse had made on Cape Ann was rescued at about this time by the inhabitants, he managed to retain control of the molasses. Jonathan Sewall filed an information against it for him in the Court of Admiralty on 26 October, with claimants cited to appear on 7 November.2
Since Adams was to appear in court for Hancock on the latter date,3 it is probable that he was of counsel for David Plumer of Gloucester, who claimed the molasses. In any event, Adams' minutes, printed below, show that when the case came on to trial, probably some time in December, Plumer sought to establish that the molasses had been imported, duty-paid, in August on his schooner Earl of Gloucester. Unfortunately, this vessel, after earlier evading the officers, had been seized on 22 October for the illicit importation of forty hogsheads of molasses on the same August voyage. An in rent proceeding was begun against her on 6 December.4
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The Commissioners also sought to impose penalties upon the individuals responsible for the alleged smuggling. At the end of December, Sewall filed in personam actions against seven men, including Plumer and Moses Bray, master of the Earl of Gloucester. On 3 February 1769 the citations were returned not served.5 It is possible that the respondents entered into a settlement whereby they agreed to withdraw their opposition in the forfeiture proceedings in exchange for an undertaking not to press the penal actions. Whatever the reason, the molasses, condemned earlier, was ordered sold on 2 March; on 18 April the Earl of Gloucester was adjudged forfeit, no claim having been entered for her.6
If Plumer did not voluntarily withdraw his claim for the molasses, there were other reasons why his defense might have failed. Adams' minutes indicate that Plumer produced witnesses to establish an identity between the molasses in suit and certain molasses covered by a cocket certifying legal entry on payment of duty, which had been signed by John Fisher, Collector at Salem. At the end of September, however, Fisher had been suspended by the Commissioners of the Customs on a number of charges, { 212 } including that of crediting merchants with more duties than they had actually paid.7 The court thus may well have found the cocket fraudulent, or may not have accepted the evidence of Plumer's witnesses.
1. The duties, of a penny a gallon on all molasses imported except from the island of Dominica, were imposed by 6 Geo. 3, c. 52, §4 (1766). Forfeiture, as provided by 6 Geo. 2, c. 13, §3 (1733), was the penalty for landing without entry and payment of duties, because §12 of the 1766 Act had incorporated prior statutes. As to Dowse, see Quincy, Reports (Appendix) 428.
2. Dowse v. 33 Hogsheads and 4 Tierces of Molasses, Vice Adm. Min. Bk., 26 Oct. 1768; Massachusetts Gazette, 27 Oct. 1768, p. 1, col. 3. The rescue, “at Squam” in Gloucester occurred at midnight on 11 September. In Nov. the Commissioners offered a reward of £50 for the culprits, which was supported by a proclamation of Governor Bernard. Id., 10 Nov. 1768, p. 1, col. 1. Dowse was still searching for these or other goods at Squam in the middle of October. Quincy, Reports (Appendix) 428 note. See also Dowse v. Nineteen Casks of Molasses, No. 49.
3. No. 46, note 31.
4. Grason v. The Earl of Gloucester, Vice Adm. Min. Bk., 6 Dec. 1768; Massachusetts Gazette, 8 Dec. 1768, p. 2, col. 2; “A Journal of the Times,” 24 Oct. 1768, Dickerson, Boston under Military Rule 10. Commissioners' General Letter, 14 Oct. 1768, Salem Custom House Record Book, 1763–1772, p. 254, MSaE. The Earl of Gloucester was informed against by her former master, Samuel Fellows, who apparently had a grievance against the owners. Minutes of the Commissioners, 30 March 1769, 7 Bowdoin-Temple MSS 173, MHi; “A Journal of the Times,” 16 Dec. 1768, Dickerson, Boston under Military Rule 36. See R. Reeve to Salem Customs Officers, 28 Jan. 1769, Salem Record Book, 1763–1772, p. 262. By way of reward, Fellows was given a position aboard a customs vessel and was soon in trouble. In May he led several men to rescue a member of his crew from a Salem deputy sheriff, firing on the officer in the process. Commodore Hood turned him over to the civil authorities, and at Ipswich Superior Court in June he was fined £10 and ordered to give £50 bond to keep the peace for two years. “A Journal of the Times,” 20 May, 3 June, 2 July 1769, Dickerson, Boston under Military Rule 100–101, 105–106, 113–114; Massachusetts Gazette, 25 May 1769, p. 1, cols. 1–2; Boston News-Letter, 1 June 1769, p. 1, col. 2; Min. Bk. 85, SCJ Essex, June 1769; SCJ Rec. 1769, fol. 71; SF 131768.
5. Advocate General v. David Plummer, Moses Bray, Daniel Plummer, Peter Clowning, Daniel Trew, Joseph Eveleth, and Thomas Corbin, Vice Adm. Min. Bk., 3 Feb. 1769; “A Journal of the Times,” 28 Dec. 1768, Dickerson, Boston under Military Rule 40. The Commissioners had asked the Salem customs officers for these names in a letter of 13 Sept. 1768. Salem Record Book, 1763–1772, p. 237.
6. For the molasses, see Notice of Sale, Massachusetts Gazette, 2 March 1769, p. 1, col. 3. The sale was set for 16 March. Only thirty hogsheads are included in the order, but it is not clear whether this was a typographical error, or whether in fact only thirty were condemned. Governor Bernard was paid his share of the proceeds on 8 June. Vice Adm. Min. Bk., 26 Oct. 1768. The Earl of Gloucester was first condemned along with her lading of a hogshead of rum, 1000 feet of white pine boards, and 3000 shingles, on 15 March 1769, and sale was set for 21 March. Grason v. The Earl of Gloucester, Vice Adm. Min. Bk., 6 Dec. 1768; Massachusetts Gazette, 16 March 1769, p. 1, col. 3. Perhaps because the buyer failed to pay, or else for some technical error in the proceedings, the vessel was then seized again on 10 April and declared forfeit on 18 April, this time with a cargo of 488 planks and 13,000 shingles. No order of sale or distribution of proceeds has been found. Vice Adm. Min. Bk., 10 April 1769; Massachusetts Gazette, 13 April 1769, p. 1, col. 2.
7. Fisher had been appointed in 1765 at the behest of John Temple, then Surveyor General of the Customs. His case was sent to the Treasury in London, who reversed the Commissioners and ordered them to reinstate him in Aug. 1769. Full documentation of the matter appears in PRO, Treas. 1:465, fols. 285–328, 389–391; 1:471, fol. 438. See also Quincy, Reports (Appendix) 451; Barrow, Colonial Customs 483–487. As to cockets, see note 5 12 below.

Docno: ADMS-05-02-02-0006-0005-0002

Author: Adams, John
Author: Sewall, Jonathan
DateRange: 1768-10 - 1769-03

Adams' Copy of the Libel and Report of the Trial1

Court of Vice Admiralty, Boston, October 1768-March 1769

Dowse vs. Thirty Three Hdds. Molosses
Libel
Be it remembered that on the 26 October 1768 Joseph Dowse of Salem in the County of Essex Esqr., Surveyor and Searcher for the Port of Salem and Marblehead in said Province, who prosecutes as well &c.2 comes and gives the Court to be informed that on the Sixth day of September last at Glocester in the Port aforesaid, he Seized as forfeited, one Third to the King &c.3 Thirty Three Hogsheads and four Tierces of Molasses, for that the same, on the same day was illegally imported, in some Ship or Vessell to the said Informant unknown, from foreign Parts, and was illegally unshipped and landed on Shore in Glouster aforesaid, no Report or Entry thereof having been first made and the Same being customable Goods and the Dutys thereon not having been first paid; against the Form of the Statute in that Case made and provided;4 whereby the Same Molasses is become forfeit to the Uses aforesaid. Whereupon as this is a matter properly within the Jurisdiction of this honorable Court, the said Joseph Dowse prays the Advisement of the Court in the Premisses, and that the same may by proper Process from this Court, be taken into Custody of the { 213 } Marshall of the same Court and by Decree be adjudged and decreed to remain forfeit to the Uses aforesaid.
[signed] Jona. Sewall Advo. for said Dowse &c.
David Plumer of Glocester in the County of Essex Merchant produces a Cockett from the Custom House in Salem 20 Aug. 1768 signed by Fisher Collector Mascarene Comptroller and John Turner Jr. Navall officer, for Thirty Three Casks of foreign Molasses, 3089 Gallons imported from St. Eustatia in the Earl of Glocester, duties paid by Moses Bray, now on board the Schooner Olive Branch Wm. Low Master, bound for Boston.5
And said Plumer proves by Witnesses that the Molasses now libelled against is the Same, that is mentioned in the above cockett.
1. In JA 's hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184.
2. Omitted in MS is the remainder of the usual form of words in the qui tam information, “on behalf of the said Lord the King and of the Governor of this Province, as for himself.” See No. 46, note 3 80 .
3. The omitted language is presumably “One Third to the Governor of said Province, and one Third to him that informs and sues for the same,” the statutory scheme of distribution. See 4 Geo. 3, c. 15, §42 (1764), applicable here. See also No. 46, note 56.
4. See note 1 above.
5. A cocket was a document required for intercolonial shipment of goods, showing their quantity and quality, shipper, consignee, and where and when duties had been paid. 4 Geo. 3, c. 15, §29 (1764); 5 Geo. 3, c. 45, §25 (1765). Auchmuty had ruled in Dawson v. Lighter and Molasses (May 1768) that a cocket was not needed for shipments from port to port within a colony, but the Commissioners had asked for a ruling from the Treasury in London. The opinion of the attorney general upholding Auchmuty was not given until 8 Sept. See sources cited in Dickerson, Navigation Acts 214–215; Oaks v. Dawson, SF 101809. As to Fisher, see note 7 above. John Mascarene had been appointed comptroller of the port of Salem and Marblehead in Aug. 1764. See Quincy, Reports (Appendix) 434, 450–451. As to the Naval Officer, see No. 45, note 34.