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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0006-0007-0001

Editorial Note

September 1768 was a busy month for Joseph Dowse. On the night of 6 September, in which he seized the goods involved in Dowse v. Thirty-three Hogsheads of Molasses, No. 47, nineteen additional casks were allegedly landed in Salem from the schooner Neptune, which had entered on 19 August. Dowse seized them on the 7th. In November the Commissioners of the Customs asked their solicitor to consult with Jonathan Sewall about filing a libel against the Neptune and her contraband in the name of Rowland Savage, “Land waiter, Weigher and Gauger at Salem,” who had apparently seized the vessel.1 No action was taken against the Neptune, { 216 } perhaps because of legal doubts as to Savage's authority to seize. On 6 December, Sewall filed an information in Dowse's behalf against the molasses alone.2
On 14 December no claimant appeared and the molasses was decreed forfeit.3 Adams, who was then spending most of his time in the Admiralty Court as counsel in Sewall v. Hancock, No. 46, apparently contemplated making a claim in behalf of the consignee of the molasses. His notes, printed below, show that he had made a study of the statutes requiring an officer's warrant for goods to be landed, which, the information alleged, had not been obtained. He probably intended to argue that these Acts did not apply in an in rem proceeding against the goods, since they provided only for monetary fines against those involved in the landing or for the forfeiture of any small craft used. The decision not to file a claim may have been based on a desire to avoid exposure to an in personam action for these or the much more serious penalties imposed for entry without payment of duties, which were the basis of the suit against Hancock.4
1. Minutes of the Commissioners, 18 Nov. 1768, 7 Bowdoin-Temple MSS 169, MHi. See Commissioners' letter, 9 Sept. 1768, ordering seizure of molasses. Salem Custom House Record Book, 1763–1772, p. 238, MSaE. According to the notice of monition, note 2 below, the seizure was on 7 September. Dowse was informed of the entry by Thomas Rowe, tidesman. Popular displeasure at this led to a riot on 8 Sept. in which Rowe was injured. See Commissioners to Salem Customs Officers, 13 Sept. 1768, 2 Feb. 1769, Salem Record Book, 1763–1772, p. 237, 264.
2. Joseph Dowse v. 19 Casks of Molasses, Vice Adm. Min. Bk., 6 Dec. 1768. See the notice of monition in Massachusetts Gazette, 8 Dec. 1768, p. 2, col. 2. For the statutes involved, see notes 8–20 4–16 below. Savage had been appointed by the American Commissioners of Customs on 30 March 1768. Salem Record Book, 1763–1772, p. 61. The question of the power of such officers to seize remained open until it was apparently decided in the negative in July 1769. No. 50. There may have been doubt previously, however, in view of the decision in Folger v. The Cornelia, No. 45, against the power of an appointee of the surveyor general.
3. Vice Adm. Min. Bk., 6 Dec. 1768. See Notice of Sale, dated 3 Jan. 1769, for sale on 11 Jan. 1769. Boston News-Letter, Postscript, p. 2, col. 1. Governor Bernard received his third of the proceeds on 9 June 1769. Vice Adm. Min. Bk., 6 Dec. 1768.
4. No. 46, note 28 and text at note 83. The Commissioners sought those responsible, apparently in contemplation of such suits. See Commissioners to Salem Customs Officers, 13 Sept. 1768, 26 Nov. 1768, Salem Record Book, 1763–1772, p. 237, 258.

Docno: ADMS-05-02-02-0006-0007-0002

Author: Adams, John
Date: 1768-11

Adams' Copy of the Information and Statutes Involved1

Court of Vice Admiralty, Boston, December 1768

Josh. Dowse Esq. vs 19 Casks of Molasses. Gardiners.2
For that the same Molasses on 19 Aug. last, was imported and brought into the Port of Salem and Marblehead, from the Island of Guadaloupe, in a certain Schooner called the Neptune, Phillip Saun• { 217 } ders Master, and in the Night Time between the 6. and 7. days of September last, the said 19 Casks of Molasses were fraudulently and clandestinely landed from on board the said Schooner, and put on Shore in Salem aforesaid, with Intent to defraud the said Lord the King of his customary Duties thereon; neither the said Master nor any other Person having first duly entered and paid the legal Duties for the same, and without having first duly entered and paid the legal Duties for the same,3 and without having first obtained a Warrant from a proper officer, for the landing the same against the Form of the statutes in such Case made and provided,4 whereby the same is become forfeited as aforesaid.
13. 14. C. 2, C. 11, §. 7.5 Be it enacted that [if] any Wharfinger, or his servant, shall take up or land, &c. or suffer to be waterborn &c. any prohibited Goods &c.6 without the Presence of some officer, &c. or at Hours and Times, not appointed by Law (1. Eliz.)7 &c. he shall forfeit 100£.—and if any Goods or Merchandizes shall be taken in from the shore &c., into any Bark, Hoy, Lighter &c.8 without a Warrant, and the Presence of an officer, the Bark &c. shall be forfeited and the Master, Boatswain, Mariner9 &c. consenting shall forfeit the value of the Goods.
1. Elisabeth. C. 11, §. 2.10 Not lawfull for any Person to lade or put off or from any Wharf, Key, or other Place on the Land &c. or to take up, discharge and lay on Land, out of any Lighter, Ship, Crayer or Vessell any Goods, Wares or Merchandises &c.11 but only in the Day light, i.e. from March to Sept., between Sun setting and Sun rising, { 218 } &c.12 and in some open Place that shall be appointable,13 upon Pain of Forfeiture of all such Goods &c.
7. 8. W. 3, C. 22, §.6.14 For the more effectual preventing of Frauds and regulating abuses in the Plantation Trade, be it enacted that all Ships coming into or going out of, any of the said Plantations and lading or unlading any Goods or Commodities, whether Ships of War or Merchant Ships and the Masters and Commanders thereof and their Ladings, shall be subject and liable to the same Rules, Visitations, Searches, Penalties and forfeitures, as to the Entering, lading, or discharging their respective Ships and Lading, as Ships and their ladings and the Commanders and Masters of Ships, are subject and liable unto in this Kingdom, by 14 Car. 2d. &c.15 and the officers shall have the same Powers and be subject to the same Regulations, as officers in England by that act.16
1. In JA 's hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184.
2. Presumably “Gardiner” was consignee and potential claimant of the molasses. Possibly Joshua Gardiner, a considerable merchant in Boston and a commercial partner of John Hancock. See No. 45, note 2 33 .
3. Thus in MS . Either a copying error on JA 's part, or an example of extreme nicety in pleading.
4. For the statutes requiring the duties and entry, see No. 47, note 1; No. 46, note 16. A warrant was required by 13 & 14 Car. 2, c. 11, §7 (1662), made applicable in the colonies by 7 & 8 Will. 3, c. 22, §6 (1696), which are set out in the text immediately following.
5. 13 & 14 Car. 2, c. 11, §7 (1662). Pertinent omissions are supplied in footnotes.
6. The statute also included goods “whereof any custom, subsidy or other duties are due and payable unto the King's majesty.” 13 & 14 Car. 2, c. 11, §7.
7. That is, 1 Eliz. 1, c. 11, §2 (1558), set out immediately following in the text, which establishes times and places for the loading and unloading of cargo. The reference in 13 & 14 Car. 2, c. 11, §7, is actually to an exception made in the Act of Elizabeth for the town of Hull.
8. “To be carried aboard any ship or vessel outward bound for the parts beyond the seas, or laden or taken in from or out of any ship or vessel coming in and arriving from foreign parts,” 13 & 14 Car. 2, c. 11, §7.
9. “The master, purser, boatswain, or other mariner of any ship inward bound.” 13 & 14 Car. 2, c. 11, §7.
10. 1 Eliz. 1, c. 11, §2 (1558). Pertinent omissions are supplied in footnotes.
11. “Whatsoever . . . to be brought from any the parts beyond the sea.” 1 Eliz. 1, c. 11, §2.
12. “And from the last of September until the first of March, between the hours of seven in the morning and four at the afternoon.” 1 Eliz. 1, c. 11, §2.
13. That is, an “open place, key or wharf,” designated by the Crown within London or certain other named ports, or at any such place in any other port in which there had been a customs officer resident for the preceding ten years. 1 Eliz. 1, c. 11, §2. By 13 & 14 Car. 2, c. 11, §14 (1662), the Crown was given the power to establish the limits of all ports and appoint landing places within them.
14. 7 & 8 Will. 3, c. 22, §6 (1696). Paraphrased with insignificant omissions.
15. That is, 13 & 14 Car. 2, c. 11 (1662).
16. The sections of both statutes regarding the powers of officers are set out in No. 44, at notes 40–45 92–97 .