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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0006-0010-0001

Editorial Note

The Jenny, owned by Elisha Doane, long one of Adams' clients, was stopped inward bound to Boston on 3 March 1773 by George Dawson, the naval officer involved in the case of the Dolphin, No. 51. Finding that she had goods aboard of European origin that had not been shipped in Great Britain as required by statute, Dawson seized her and had her brought into port. On 24 March, Samuel Fitch, the Advocate General, filed a libel in the Court of Vice Admiralty against vessel and cargo. Doane claimed the Jenny and at least a portion of the goods seized, and argument was had on the case sometime in April. John Adams and Sampson Salter Blowers were of counsel for Doane; Fitch and James Otis argued for Dawson.1
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As Adams' minutes, printed below, indicate, Blowers opened the case for Doane, presumably because under the Acts of Trade the claimant had the burden of proof as to the origin of the goods.2 Two statutes were involved. Under the Staple Act of 1663 if goods “of the growth, production, or manufacture of Europe,” were “imported” into the colonies without having been loaded in England, vessel and goods were forfeit.3 A provision of the American Act of 1764 tightened enforcement of this regulation by permitting the seizure at sea of any goods found aboard a vessel “arriving from any part of Europe,” for which there were no papers showing that the goods had been taken aboard at a British port.4
In 1767 the High Court of Admiralty had upheld a decision of the Massachusetts Vice Admiralty Court that a vessel which had been seized in Boston Harbor when still three miles from port had “imported” goods within the meaning of the 1663 Act.5 The facts in the Jenny's case were apparently within this decision because the question does not seem to have been raised at the trial. In order to avoid forfeiture of the vessel, Blowers and Adams thus had to show that none of her cargo was of European “growth, production, or manufacture” ; if this was impossible, then at least all goods of non-European origin might be kept from condemnation, if it could be proved that the Jenny had cleared from a non-European port.
Blowers attempted to meet this burden by introducing evidence to the effect that the cargo had been loaded at Tangier. This fact, if established, would at least save non-European goods, and might allow an inference that the entire cargo, having been loaded in Africa, was of African origin. The evidence consisted of the testimony of several witnesses, probably members of the crew; the certificates of one Meshod Meguiers, apparently English Vice Consul at Tangier, that the goods had been loaded there; and the master's manifest, presumably also to the same effect.
Otis and Fitch seemed to have no direct evidence in rebuttal, but launched a telling counterattack both on the credibility of Blowers' evidence and on the inferences which he hoped to draw from it. The witnesses were all connected with Doane, and their testimony was full of inconsistencies; the certificates were incomplete, inconsistent, and of doubtful probative value; the manifest was rendered doubtful by evidence that Doane had tampered with it, and by one witness who indicated that the harbor of Tangier did not have adequate facilities for taking on cargo. In addition, much of the cargo was patently European in origin. In all likelihood the Jenny had actually cleared from Gibraltar, across the straits from Tangier.
Adams must have closed the case for Doane, but he has left us no record of his arguments. Whatever they were, they failed to convince the court completely. On 12 May the Jenny and at least part of her cargo, { 239 } consisting of raisins, wine, cotton and silk stockings, and several pieces of silk, were ordered to be sold. Since not all of the goods mentioned in Fitch's argument appear in the notice of sale, it is possible that the court found some items to have been non-European, both in origin and point of shipment.6 In any event, the sale on 20 May produced an adequate return for Dawson's efforts. The court's receipt book shows that his half of the proceeds amounted to £773 16s. 11 1/2d.7
1. Massachusetts Gazette, 25 March 1773, p. 3, col. 1. Doane, a wealthy Cape Cod shipowner, was to be Adams' client in the case of the Lusanna, No. 51, note 1. That the Jenny was inward bound may be inferred from the award of pilotage to Dawson on her condemnation as well as from the size of his share in her proceeds. See note 7 below. In a letter of 22 April 1773 to Arthur Lee, Samuel Adams remarked that “Otis yesterday was engaged in a cause in the admiralty on the side of Dawson, commander of one of the king's cutters.” Adams reported that the tories considered this a victory, but he wondered how they could “boast of the acquisition of one, whom they themselves have been ready to expose as distracted.” Harry A. Cushing, ed., The Writings of Samuel Adams, 3:36–37 (N.Y., 1907). Otis, who had been intermittently confined and released, was at this point in a decline. 11 Sibley-Shipton, Harvard Graduates 281–284.
2. 4 Geo. 3, c. 15, §45 (1764), set out in No. 46, note 54.
3. 15 Car. 2, c. 7, §6, note 2 9 below.
4. 4 Geo. 3, c. 15, §30, note 3 10 below.
5. Bishop v. The Freemason, Quincy, Reports 387 (Mass. Vice Adm., 1763), affirmed sub nom. The Freemason v. Bishop, Burrell 55, 167 Eng. Rep. 469 (High Ct. Adm., 1767). See No. 50, note 6; No. 51, note 1.
6. Massachusetts Gazette, 13 May 1773, p. 3, col. 1. A literal interpretation of 4 Geo. 3, c. 15, §30, note 10 4 below, would have allowed condemnation of all goods not shipped in England, even though properly shipped outside Europe, if the vessel made a European stop prior to landfall in the colonies. Fitch's argument, text at note 17 24 below, suggests a looser construction, however. It is possible that some of the Jenny's cargo may not have been claimed, and may have been sold separately under an order of 14 April 1773, for the sale of a small quantity of lemons and olives, and 1409 “raw hides” also seized by Dawson, for “illegal importation.” Massachusetts Gazette, 16 April 1773, p. 2, col. 3.
7. Receipts from Seizures of Ships, 2 July 1773, MBAt:Price Papers. Dawson also received £43 for “Pilotage, Information money and cash paid Mr. Otis.” Ibid. “Information money” may have covered either Fitch's fees or a payment to an informer. Dawson was entitled to a half, rather than a third, because the seizure was “at sea,” which was defined to include seizures “in or upon any river . . . not actually made on shore.” The Governor was thus not entitled to a share. 4 Geo. 3, c. 15, §42 (1764); 5 Geo. 3, c. 45, §26 (1765).
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