In November 1768 Adams undertook the defense of John Hancock in what, politically, was his most important case until the Boston Massacre trials (Nos. 63
). Jonathan Sewall, the advocate general, had sued Hancock in Admiralty for penalties incident upon the alleged smuggling of wine from the latter's sloop Liberty.
The circumstances of this prosecution and portions of Adams' defense were carried in a variety of contemporary newspapers and played a leading part in the development of colonial opposition to the British customs system and Vice Admiralty courts.
The case arose in a Boston already antagonized by the activities of the recently formed American Board of Customs Commissioners. The fate of Timothy Folger and the sloop Cornelia
), must have convinced the town, if proof were needed, that the Commissioners had no interest in the
kind of benign administration that might have permitted an accommodation between the stringencies of the Townshend Acts of 1767 and the realities of commercial life. In the forefront of mounting opposition to the Board and the Acts was Hancock, leading merchant, Boston selectman, and representative to the General Court, who must have been pleased to find that he could so easily combine his zest for politicking with pursuit of his commercial interest. His political tactics included a variety of threats, boasts, and social snubs, nicely calculated both to offend the Commissioners and to arouse the public.1
On the commercial side, Hancock's opposition was less flamboyant, but no less determined. In early April, he had found Owen Richards, one of two tidesmen sent to supervise the discharge of his brigantine Lydia,
poking around in the hold of that vessel. Hancock ordered Richards forcibly brought topside, making clear that he considered the deck to be the limit of the officer's jurisdiction.2
Attempts to prosecute Hancock in the Superior Court for this incident were frustrated when Jonathan Sewall gave his opinion as attorney general that no offense had been committed and refused to put the matter in suit. The Commissioners wrote to England asking that Sewall be overruled.3
Before a reply could be received, the affair of the Liberty
gave them a better opportunity to make an example of their chief tormentor.
The sloop had arrived in Boston from Madeira on 9 May; next day, Nathaniel Barnard, her master, made entry of twenty-five pipes of madeira wine, upon which the duties were paid.4
According to the later testimony of various royal officials, Hancock had boasted that he would land wine from his vessel without payment of duties, and rumors were rife that he had done so.5
The customs officers had to be satisfied with rumor until, on
10 June, Thomas Kirk, a tidesman who at the time of the Liberty's
arrival had reported nothing amiss, now made affidavit to a different story. On the night of 9 May, he testified, one Captain Marshall came aboard and, after failing to persuade Kirk to allow several casks of wine to be unloaded before the vessel's entry the next day, locked him in the steerage. Confined for about three hours, Kirk “heard a Noise as of many people upon deck at Work hoisting out Goods,” as well as “the Noise of the Tackles.” He was released when the activity ceased, but Marshall's dire threats had kept him silent; Marshall had since died, and Kirk no longer feared to come forward.6
Joseph Harrison, Collector of the port, presented Kirk's affidavit to the Commissioners. Corroboration was impossible, Kirk's fellow tidesman being variously reported as asleep or drunk during the hours in question, but the Commissioners and their solicitor determined that the affidavit was grounds for a seizure of the Liberty
for violation of the statutory provisions against unloading before entry. Harrison and Benjamin Hallowell, the Comptroller, were ordered to make the seizure. To avoid the possibility that the townspeople might rescue the vessel, the Commissioners suggested that the officers obtain the assistance of H.M.S. Romney,
which had arrived in the harbor on 17 May in response to the urgent pleas of the Board that it could not enforce the laws without such assistance.7
At about sunset on the 10th, with the tide near full, Harrison, Hallowell, and a number of lesser officers proceeded to Hancock's wharf, where the Liberty
lay, loaded with two hundred barrels of oil and a few barrels of tar. According to a contemporary account, these goods were not cargo for another voyage, but had been put aboard for storage, there being no room in the warehouses along the wharf.8
The officers boarded the sloop,
went through the formalities of seizing her, and signaled the Romney,
at anchor nearby. Two boats of marines and sailors came to the wharf and set about taking the Liberty
in charge. Meanwhile a crowd, including Captain Daniel Malcom (long an enemy of the revenue) and a number of other waterfront figures known to be friendly to Hancock, had gathered. Despite assurances from the mob that there would be no interference with the seizure, and efforts to hold the vessel to the wharf, the marines cut her loose and, with the consent of Harrison and Hallowell, towed her out into the harbor, where she was moored under the guns of the Romney.
A small riot then ensued, in the course of which Harrison and Hallowell were roughed up, windows in their houses were smashed, and the Collector's pleasure boat was burned on the Common.10
The Commissioners, fearing that they would be next, went into hiding and the next day transferred their operations to the Romney.
Harrison began to negotiate with Hancock for the return of the Liberty
in exchange for a bond for her value to abide the outcome of proceedings against her in the Court of Admiralty.11
Meanwhile, Boston remained in an uproar, stimulated by a series of town meetings at which fiery orations were delivered. John Adams' first connection with the case was his service upon a committee appointed by the Town to draw up instructions to its representatives.12
Hancock at length
declined to stipulate for the vessel, apparently on the theory that her continued presence in the harbor would serve to keep the Town reminded of the incident.13
After the failure of this step at conciliation, the Commissioners chose to view the situation in Boston as one of serious emergency; and, when Governor Bernard reported that he could not guarantee their personal safety in town, they took up residence at Castle William in Boston Harbor. From this retreat the North American customs were managed until mid-November, when the presence of troops and Governor Bernard's assurances finally eased the Commissioners' fears.14
While the Commissioners languished, Jonathan Sewall on 22 June filed a libel in behalf of Joseph Harrison against the Liberty
and the oil and tar aboard her at the seizure.15
Although no papers in the suit have survived, the grounds were probably three: (1) landing goods before entry, as Kirk had sworn; (2) loading the oil and tar without having given bond; and (3) loading the oil and tar without having a sufferance from the Collector. For the first, the penalty was forfeiture of the vessel;16
second, vessel and goods were forfeit;17
and for the third the goods alone were forfeit.18
The second and third counts would have been included to justify seizing the oil and tar and retaining it aboard the Liberty
as she lay under the Romney's
protection. To have brought the sloop back to the wharf for discharge would have exposed her to rescue. These counts, of course, had the additional value of further harassing Hancock by complicating the suit and by tying up his goods pending the outcome.
The identity of Hancock's counsel in this in rem
proceeding is not known. He may well have been Adams, who had recently tried Timothy Folger's action against the sloop Cornelia
), in which Hancock was a witness. Adams was doubtless on hand in the summer of 1768, since he had recently moved to Boston19
and had no cases on circuit with the Superior Court in June or July. Whoever Hancock's lawyer was, he did not let the forfeiture go by default. An appearance was entered on 7 July and, after several continuances, Hancock's claim was filed on the 29th. Counsel had earlier agreed that witnesses should be examined by the Register upon interrogatories filed by the parties. On 4 August, Judge Auchmuty himself attended the examination of two witnesses, Captain Malcom and William Mackay. Auchmuty gave his decree on 17 August, declaring the Liberty
forfeit, but releasing the oil and tar.20
No copy of the decree exists, but it
apparently condemned the Liberty
for unlading without entry, and cleared the oil and tar as having been loaded for storage rather than shipment.21
On 6 September, the sloop was put up for sale and purchased by Harrison for the Commissioners, who proceeded to have her fitted out as a revenue cutter. In this capacity she served until July 1769, when a Rhode Island
mob seized and burned her at Newport in wrath over the enforcement activities of her commander, Captain William Reid.22
The focus now shifted to those responsible for running the wine and fomenting riot. Efforts to indict the rioters before the Suffolk Grand Jury in August were effectively forestalled when Boston returned Captain Malcom and other alleged participants as jurors.23
On 2 September the Commissioners directed their solicitor to consult with the advocate general as to prosecuting “the master of the Sloop Liberty and all persons concerned in running the cargo for treble the value of the goods run.”24
During the summer, in response to a request from the Lords of the Treasury for an opinion on a memorial submitted by the Commissioners, William DeGrey, Attorney General in England, had found that there was not only a basis for proceeding against the vessel, but that “Actions may likewise be brought against the Persons concern'd in the unshipping the Goods, and in obstructing the Seizure.”25
Emboldened or coerced by this opinion, Sewall on 29 October filed informations against Hancock and five others, including Nathaniel Barnard, master of the Liberty,
and Daniel Malcom.26
His delay had probably resulted, at least in part, from a prudent desire to wait until excitement over the arrival of the first troops in September had died down and they were in place and ready to be of assistance.27
The suits were based on a provision of the American Act of 1764 that persons “assisting or otherwise concerned” in landing goods without payment of duties should forfeit treble the value of the goods in a proceeding in the Court of Admiralty. Despite a certain vagueness in the language of the information, it is clear that Sewall brought the actions as informer. In this capacity he was entitled to a third of the proceeds, which may have been the price of his abandonment of an earlier reluctance to proceed in such an unpopular cause.28
The information against Hancock alleged that he had aided and assisted in landing one hundred pipes of Madeira wine valued at £30 sterling each, knowing that the duties had not been paid. The penalty sought was £9,000, treble the value of the wine. Judge Auchmuty set bail at £3,000 and ordered a warrant to issue for Hancock's appearance on 7 November.29
According to the patriot propaganda sheet, “A Journal of the Times,” the warrants were served on 3 November by “Mr. Arodi Thayer, marshal of the Court of Admiralty for three provinces, with a hanger at his side.” After offers of property and Massachusetts currency for bail were refused, Hancock and the others produced the amount demanded in sterling.30
When the court sat on 7 November, the informations were read and the matter continued until the 28th.31
Thus began a lengthy trial, in which Adams served as counsel for Hancock and probably the other respondents as well. Years later in his Autobiography he said of Hancock's case: “and a painfull Drudgery I had of his cause. There were few days through the whole Winter, when I was not summoned to attend the Court of Admiralty. It seemed as if the Officers of the Crown were determined to examine the whole Town as Witnesses. Almost every day a fresh Witness was to be examined upon Interrogatories. They interrogated many of his [Hancock's]
near Relations and most intimate Friends and threatened to summons his amiable and venerable Aunt, the Relict of his Uncle Thomas Hancock, who had left the greatest Part of his Fortune to him. I was thoroughly weary and disgusted with the Court, the Officers of the Crown, the Cause, and even with the tyrannical Bell that dongled me out of my House every Morning.”32
The cases were further continued from time to time until 2 January 1769.33
The trials seem to have proceeded together without objection from any party. Interrogatories had been filed on 13 December, and now the first of many witnesses for the Crown was called.34
For many weeks Auchmuty continued to examine witnesses both in court and in chambers, an Admiralty practice that, like the constant continuances and long delays, offended the common-law practitioners.35
Finally on 16 February the
respondents' witnesses were examined, and the case was set for argument on Tuesday the 21st. On that date, however, the Crown sought, and was granted, leave to examine additional witnesses “for the whole of this week,” which prompted “A Journal of the Times” to conclude that the respondents' evidence had seriously damaged Sewall's case.36
On the 24th Adams tried to impeach one Joseph Maysel, apparently a key witness for the Crown, by questioning another witness in an effort to prove that Maysel was a fugitive from justice, guilty of a “heinous crime.” The Crown opposed the line of questioning, pointing to the common-law rules that only a witness' general character for truth was admissible as oral testimony, and that a written record of conviction was necessary to establish a specific crime. Adams argued that the civil law, which he said would permit his evidence, should be followed, since this was a Court of Admiralty.37
On 1 March, Auchmuty, in an interlocutory decree, ruled that the question objected to should be withdrawn on the grounds that even under civil-law rules the evidence was inadmissible, but that in any event the common law controlled this matter in a statutory proceeding.38
As far as can be determined, no further sessions of the court were held. Sometime in March the Suffolk County Grand Jury reportedly indicted Maysel for perjury, but, according to “A Journal of the Times,” he was spirited out of the jurisdiction by the Commissioners, and the indictment was not brought to trial.39
Finally, on 25 March 1769 Sewall moved that the informations against Hancock and the other respondents be withdrawn.40
There has never been a satisfactory explanation for the Crown's action, although in the “Journal” the withdrawal was implicitly linked with the reading of Auchmuty's commission as Judge of Admiralty for the new, enlarged district centered at Boston.41
Since Sewall at the same time had been commissioned Judge of Admiralty at Halifax, it has been sug•
gested that Auchmuty and he, now assured of fixed salaries, were willing to forgo the expected profits from these actions.42
It might just as well have been that Sewall now felt himself sufficiently independent of the Customs Commissioners to withdraw actions which he had instituted only under pressure from them. Neither theory explains why the actions were not dropped when the commissions were actually received in Boston on 20 January.43
It seems more likely that the departure of Maysel and a failure of other evidence were the reasons for the withdrawal.44
It is also possible that the actions were settled in some way, although there is no evidence of such a result. Whatever the fact, the withdrawal probably coincided with the reading of Auchmuty's commission only because the opening of court for that purpose provided a convenient opportunity for Sewall's motion.
The trial of Hancock and the others was an event of major political importance in the colonies. Its very length played into the hands of the revolutionary propagandists. From November 1768 until the following summer, “A Journal of the Times,” which appeared in a variety of colonial newspapers, carried periodic accounts of the proceedings, interspersed with tart comments on the twin themes of the venality of the Customs Commissioners and the arbitrary injustice of the Court of Admiralty.45
These attacks helped to establish the Commissioners as obnoxious at the very beginning of their tenure. Their effectiveness was permanently damaged and they served until the Revolution in an atmosphere of constant hostility.46
The attack on the Admiralty Court was buttressed by a portion of Adams' draft argument in the case, which was widely circulated as part of his Instructions to the Boston Representatives of May 1769.47
These and other responses to the prosecution of revenue cases brought the Vice Admiralty courts under the disapprobation of the colonists. The jurisdiction was more and more invoked only in enforcement of the Acts of Trade, and ordinary civil maritime cases were tried in the common-law courts.48
of revenue cases in each port served to stir up local feeling; Sewall v. Hancock
helped to unite this feeling and to produce the single impulse against the courts which increased steadily until its manifestation in the Declaration of Independence.49
Recently it has been argued that the whole affair of the Liberty
is proof that the Commissioners were in fact as venal, and the Admiralty Courts as arbitrary, as the colonists contended. Hancock is pictured as the innocent victim of a prosecution carried on by “customs racketeers” bent on “plunder,” who sought to obtain their evil ends in an arbitrary and oppressive mockery of a trial.50
Hancock's innocence is open to question. His reported boasts that he would defy the Commissioners and the rumors that he had done so may be dismissed as the self-serving statements of interested royal officials, but there remains the fact that the Liberty
was condemned for unloading cargo before entry.51
Without court files it is difficult to evaluate that decision, but on balance it was probably justified. In the first place, the problem of proof was relatively simple. The issue was only the fact of unloading, not the complicity of Hancock or anyone else. Secondly, Kirk's deposition, which has been attacked as vague and perjured,52
was probably not the only evidence for the Crown. During the eight weeks of trial interrogatories were filed and the court examined several witnesses, presumably including Kirk. In any event, his original deposition, if believed, was persuasive ground for condemnation, regardless of the testimony of Hancock's witnesses, who had the difficult job of proving a negative.53
Even if the deposition could not be corroborated by other testimony, Kirk could have been further examined to ascertain his credibility, and character witnesses could have been called.54
To argue that Auchmuty decided the case against the weight of the
evidence is to say that he either was wrong in believing the witnesses or was influenced by prejudice. Both are possible, but the presumption is surely the other way. At least as to testimony given in his presence, only Auchmuty could weigh credibility, and there is no actual evidence of prejudice. Moreover, if the condemnation had not been supported by the evidence it is hard to believe that there would not have been some outcry. Not only was none forthcoming, but the few mentions of this phase of the case which are found support the view that the forfeiture was justified.55
A conclusion that the Liberty
was justly condemned for unloading before entry does not convict Hancock of smuggling; it does indicate that wine or other goods were smuggled from the Liberty
on the night of 9 May. It seems unlikely that Hancock would have been so out of touch with his affairs as not to have been involved.
If the Commissioners were reasonable in believing that Hancock was not innocent, then they were justified in proceeding against him with all the weapons they could command. They had been sent to Boston to implement a new policy of strict enforcement of the Acts of Trade. Hancock led the opposition to the new establishment, both with his political attacks and with the example of his own violation. If the law could be applied strictly to him, others would fall into line. The procedures used to gain this end were harsh, but they were neither extortion nor persecution. All were prescribed by the law which the Commissioners had sworn to uphold, and all were dictated by the position of outright defiance which Hancock had taken.
The forfeiture of the Liberty
and the penalties sought in the in personam
actions were not “plunder” unless that term is understood to include rewards sanctioned by law. It was common 18th-century practice to divide the proceeds of such suits, a third each to Governor, informer, and Crown. In many situations fees and forfeitures were used to encourage an element of private enterprise which helped to keep salaries low and place the cost of government on those who invoked its powers. In the area of the customs the practice was especially necessary to encourage effective enforcement in the face of firm opposition.56
This system could certainly be abused if
profit, rather than enforcement, became the sole aim of the officials involved. There was no abuse in the seizure of the Liberty,
however. The cause was not a breach of some technical and previously unenforced requirement, but a violation that amounted to the very kind of smuggling which the Commissioners had been sent to root out.57
Nor were the penalties in the in personam
proceedings an abuse. The statute under which they were sought had been enacted precisely because forfeitures alone were not sufficient to deter violators.58
The substantial amount asked for here was necessary to make an impression upon a man of Hancock's wealth, power, and obstinacy. Although the figure of one hundred pipes alleged to have been smuggled was doubtless chosen arbitrarily to raise the stakes, there could be no unlawful exaction, because the fines which would have been paid if Sewall had obtained a decree were based upon the quantity and value of the wine smuggled, matters of fact which the Crown had to prove at the trial. The ultimate penalty thus would not have been dictated by the allegations in the information, but would have been computed according to the offense, as authorized by statute.59
The principal result of the high ad damnum
was that a high bail was levied. There is some justice to complaints on this point, as the rule at common law in England seems to have been that only the fictitious common bail was required in an action on a penal statute. The figure itself was not excessive, however. Although it might have seemed so in a criminal action, where bail was proportioned to the gravity of the offense, this was a quasicivil proceeding, in which the purpose of bail was to provide security for the amount sued for, rather than merely for the defendant's appearance. In a civil action at law the plaintiff could demand that the sheriff take security in the full amount of the ad damnum,
and full bail was required in an in personam
civil suit in the English High Court of Admiralty.60
court here was more lenient, requiring bail for only one third of the amount sought.
The procedure followed in the in personam
actions was unusual and, no doubt, tended to Hancock's disadvantage, but it was not persecution invented arbitrarily by the Commissioners for political revenge or financial gain. The statute provided the choice of proceeding at common law or in Admiralty, because it was a truism that no jury could be found to convict for violation of the Acts of Trade.61
After the recent failure to indict the Liberty
rioters, the Commissioners can hardly be blamed for accepting truism as truth and exercising the option to proceed in Admiralty. Since the trial was in Admiralty, it was by information, not indictment;62
it was before a judge sitting without a jury; and the whole range of civil law procedure followed in the High Court of Admiralty in England was invoked—interrogatories, irregular sessions, secret examination of witnesses, and the rest.63
Whether these procedures were “illegal” depended not on their inherent qualities but upon the power of Parliament to place violations of the statute within the Admiralty jurisdiction. There was much dispute on this point, and it is not surprising that the Commissioners upheld the parliamentary side of a constitutional question which was resolved only by the Revolution.64
Hindsight suggests that wiser administrators than the Commissioners might have sought to gain compliance through friendship and understanding rather than in an outright confrontation which they were bound to lose. A different course could have slowed or even prevented what became a headlong rush toward American independence. The British policy in accordance with which the Commissioners acted was based upon an unrealistic appraisal of the proper role of the colonies, which the colonial constitutional arguments were intended to correct. To recognize the justice of the colonial position, however, is not to say that the actions of the Commissioners were immoral or illegal. Hancock had defied authority. As representatives of that authority they were duty-bound to react to his defiance. Their reaction was not the only possible one, but it was a proper, if ultimately ineffective, course.
The document printed below from Adams' Admiralty Book concerns only the in personam action against Hancock. It consists of a copy in Adams' hand of the information and statutes involved, followed by a draft of his argument in Hancock's behalf. In this argument Adams approached the case as presenting a problem in statutory construction. Conceding that wine had been landed from the Liberty without payment of duties, he first argued that Hancock could not be said to fall within the statutory description of one “assisting or otherwise concerned” unless his knowing complicity in the unloading could be directly proven. Sewall must have been equally aware that Hancock's liability turned on the question of his knowledge and participation. Only this could account for the flood of friends, relations, employees, and business associates who were called as Crown witnesses, doubtless to be interrogated on possible links between Hancock and the nocturnal activities of the late Captain Marshall. Sewall's decision to abandon the action may well have turned on his inability to produce evidence of this vital element in his case.
Adams' basic argument was supported by a plea that the act be strictly
construed in Hancock's favor. Presumably this meant that “assisting or otherwise concerned” should not be expanded to include any kind of constructive or circumstantial implication of Hancock in the unloading. There was, of course, a familiar canon of construction that penal acts were to be construed narrowly,65
but Adams' argument was unusual in the reasons which he assigned for calling this statute penal. Not only was there an obvious disproportion between offense and penalty, but there were two grave constitutional defects in the act: (1) Adams' “Clyent Mr. Hancock never consented to it,” through his own vote or that of his actual representative; (2) its penalties were to be recovered in Admiralty courts, which deprived Hancock of the right to trial by jury, a defect all the more grievous because comparable offenses in England were to be tried to a jury in the Exchequer.
Here, like Otis in the famous argument on writs of assistance (No. 44
), Adams attacked a statute as an intrusion upon fundamental rights. Unlike Otis, Adams did not make this invasion the basis for a demand that the court repudiate the statute altogether. Bonham's Case,
upon which Otis grounded his argument that “the Executive Courts must pass such Acts into disuse,” held only that a statute should be construed to avoid a result in conflict with common-law principles.66
Adams' position neatly tied his broad political and constitutional arguments in with a similar narrow theory of construction: a penal statute conflicting with basic principles should be construed in every instance in favor of the subject.
In the light of later theorizing on the question whether Otis had foreshadowed the doctrine of judicial review,67
it is interesting that Adams' argument was so much more in accord with traditional English legal theories. Perhaps he had not understood Otis to have gone beyond those theories; or, if Otis had gone farther, Adams might now have come to realize that this was not a correct statement of the law. Otis' appeal to Bonham's Case
could be rationalized in a narrow view, because he was urging invalidity in the application of a statute; the statute here, if void, was void on its face, a much more drastic flaw. Whatever the force of these considerations, Adams undoubtedly felt the need to ask for relief in terms acceptable to the judge trying the case. Auchmuty could hardly be persuaded as a loyal servant of the Crown that the act was void, but he might be convinced that in the circumstances it should not be applied harshly to Hancock.68
The structure of the argument may also be explained by an intention on Adams' part to make political use of the draft—a possibility discussed more fully below.
The remainder of the draft deals with the question of the application of the civil law. Although Auchmuty had held that common-law rules governed the questioning of an impeaching witness, that opinion was based on alternative grounds and could have been limited to the issue there raised. Adams here argued for the civil-law approach on a broader front, buttressing his position with an array of citations from the Digest and other appropriate authorities. Conviction must be on the evidence of two or more witnesses whose credibility the court must establish. If oral testimony of Maysel's criminal record was not admissible on the question of credibility, his present condition, as well as his own testimony as to his past should be taken into account. The civil law also supported Adams' previous contention that harsh laws should be construed strictly, especially in criminal cases. The draft ends with the unexpected insertion of a summary of the earlier arguments and decree on the impeachment question. In this material was the crux: If the court was to apply some common-law rules, it should apply all, including the jury. If it was to follow the civil law in matters such as interrogatories, it should not omit those civil-law rules which favored Hancock.
Adams may have delivered this argument in open court, but no direct evidence of such a dramatic event has been found, and there is reason to believe that it never occurred. As already noted, argument on the merits had been set for 21 February but was postponed until after 1 March by the Crown's call for further witnesses and the subsequent controversy over the impeachment of Maysel. In all probability Maysel's indictment and disappearance led to further postponements, so that there was no occasion to hold argument prior to the withdrawal of the actions on 25 March.69
In any event, “A Journal of the Times,” which faithfully recorded these and other stages of Hancock's trial, made no mention of an argument. If Adams had addressed the court in the eloquent and politically provocative terms of his draft, it seems likely that the “Journal” would have reported it, perhaps embellishing the account with passages supplied by Adams from his own text.
The state of the manuscript is ambiguous on this point. The draft contains textual errors of a sort suggesting that at least the portions of it dealing with the constitutional issues were copied from an earlier, rougher draft.70
At the same time, the less organized and less careful manner in which the extracts from civil-law sources were entered, the sudden insertion of the impeachment materials, and the lack of a formal conclusion on the civil-law issues indicate that this is not a final draft. If there had been an argument on the merits, the draft could be either a copy or expansion of the text from which Adams argued, or it could be an intermediate state from which he prepared a now missing final version for presentation to the court.
In view of the likelihood that there was no argument on the merits,
another explanation is called for. Adams may well have prepared an argument on the constitutional points for presentation on 21 February, and copied the first part of the present draft from it into his Admiralty Book, perhaps in expanded form. Possibly inspired by the issues raised in the impeachment argument, he doubtless added the civil-law extracts during the latter part of February or early in March. Then, “disregarding order,” he inserted the material on “the Controversy We had last Week.”—that is, the impeachment71
—some time after Auchmuty's 1 March decree. His failure to complete the draft may be ascribed to the fact that at some point in March he learned that it would not be needed in court.
Whether or not the argument was ever presented, there are many indications that Adams intended his draft to serve a purpose beyond mere advocacy in court. “A Journal of the Times” twice promised a full account of Sewall v. Hancock,
although none ever appeared.72
Adams had earlier turned law reporting to partisan advantage with his “Abstract” of the argument on the writs of assistance (No. 44, Document II
), and he now had before him a recent example of this technique in the pamphlet attack which Henry Laurens of Charleston had launched upon the activities of the South Carolina Vice Admiralty Court.73
Adams may have intended to use his draft as the basis for a similar pamphlet, which would fulfill the “Journal's” promises, graphically demonstrating Boston's grievances and presenting the Town's legal position in its quarrel with the Customs Commissioners and the Admiralty Court.
Whether termination of the trial, the press of other business, or another reason caused Adams to leave his draft unfinished, a gap of ten pages before the next entry in the Admiralty Book (Rex v. Corbet,
, tried in May and June 1769) suggests that he intended to return to it. The work that he had done did not go to waste, whatever his intentions. As previously noted, he used his arguments on the right to jury trial almost verbatim in his Instructions to the Boston Representatives in May 1769. This document was carried in the newspapers as well as in “A Journal of the Times,” and so played a political role. The passage on impeachment was similarly adapted for the “Journal.”74
If these partisan uses of portions of the draft suggest that it was as much a political as a legal document, its content provides firm ground to support such a theory. In the first place, both Adams' use of court documents with appended comments and the general tone of his arguments indicate a desire to emulate Laurens' South Carolina pamphlet.75
More important, Adams' draft stands in its own right as skilled political writing.
The language and style of his political and constitutional arguments, which might have impressed a jury but would have been wasted on a hostile judge, suggest the intention to reach a wider audience. In fact, the portion on Magna Carta, later used in the May 1769 Instructions, shows great similarity to a passage in Adams' “Clarendon Letters” of 1766, attacking the Stamp Act.76
His juxtaposition of broad constitutional positions with a plea for strict construction gives rise to an irony more appropriate in political writing than in legal argument. To call a statute merely “penal” when it has been enacted by an improperly constituted legislature and invades a basic constitutional right is the kind of understatement which implies a more drastic conclusion: The statute is invalid and the political system which produced it must be changed. Even the civil-law argument seems calculated less for legal advantage than as a means of emphasizing the deprivation of jury trial and the unfair manipulation of the law in the Admiralty court.77
The case was to be tried on the facts; these arguments were for the world.
Adams' “Abstract” of the writs of assistance argument was the transformation of a legal argument into a political tract. His argument in Sewall v. Hancock is a much more subtle and accomplished piece of craftsmanship. Here, political theory is manipulated within a legal framework in such a way that the case is presented both at the level of the court room and at the level of the public forum in which broader constitutional issues are discussed. Whatever the purpose for which it was written, the argument deserves recognition as an unfinished contribution to the political literature of its time.