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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).

Docno: ADMS-05-02-02-0006-0010-0002

Author: Adams, John
Date: 1773-04

Adams' Minutes of the Argument1

Court of Vice Admiralty, Boston, April 1773

Captn. Dawson. vs. Jenny.
Blowers. Libel, claim, 15 Car. 2, c. 7, §.6.2
Hillman, and Cato.
Certificates. Goods claimed, taken in at Tangier.
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Captn. Brace. Hides cured in the Hair with salt.
Brooke and Guthrie. Fez, Morocco.
Downes's Manifest.
Mr. Otis. Reads Libel, Claim, and Answer. 15 C[ar.] 2, c. 7, §. 6.
4. G. 3, c. 15. page 291. No Vessell shall be cleard out in England unless the whole Cargo was shipped in <England> Great Britain.3
Onus on the Claimant.4 No attempt to prove the Goods grown in Affrica.
Bishop [Burnet?] said he always presumed a [Priest?] to be a Rogue untill the contrary is proved.5 Doane has been catched. And therefore must be presumed to be a Smuggler, untill he proves himself a fair Trader.
This Vessell as curious a Voyage as St. Paul made to Rome.6
Pieces of Silks.
Mr. Hallowell tasted one Quarter Cask, it has the Taste of Malaga Wines, not so sweet as some Malaga.7
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Jona. Wild8 would blush at mentioning the Supposition, that C[aptain] Dawson procurd these silks to carry about to take in a fair Trader.
It appears on Record that a Number of Packages were thrown over. Negatur.
French Chart. Shews that C[aptain] Brace was mistaken in many things.
500 Cattle, an over load for the Ark. [ . . . ] to an Horse.9
Ballances the Testimonies of Mathews, Hillman and Cato.
Harrison and Hallowell, about Downes's Manifest.
Major Doane required the Master to swear differently from what he first intended.10 A strong mark of fraud.
The Conversation between Major Doane and Mr. Waterhouse and Hallowell, can by no means help them for it appears clear the Major did not follow his Advice.
As to the Conculs Papers produced, tho I am willing to allow them authentick, yet they can prove nothing for every Body knows those Certificates can be obtained when askd for.
Advocate General.
The Cause rest[s] on two distinct points, the first is on the 15 Car 2d.11 That the Goods on board her were not of the Growth &c. of Europe.
The other is that this Vessell came from some parts of Europe, and has produced no Cocket or Clearance.12
The Burthen of proof on the Claimants.
Remarks on the Statutes.
1. The Act of Charles, of the utmost national Service.13
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Captn. McNeal. No Harbour at Tangier, no shelter since the Pier blown up. An open Bay.14
The Act. 4. G. 3. whole Cargo must be relanded and reshipped. p. 291.
No Proof that any one Article, the Produce of Africa. Only consequential.
Certificate from Mr. Meshod Meguiers.
Salt not exported from Africa.
Oyl. 26 Boxes. Figgs, Capers &c.
Pampo[u]ses.
Honey. Matts. Silks never exported from Africa.15
Our Witnesses, their Connection with the Claimant.
Cato talks of a Xebec 3 Masts. Hillman a Schooner, with 2 Masts.
Cato believes 'em to be Spaniards. Cato's 200 could not be Hillmans 200 therefore 400.
Mathews 900. 1st. did not know.16
Unwillingness and forgetfulness of Hillman. At a Loss as to Time how long, &c. when the Mate died &c.
Pampouses, shipd in Europe, tho produced in Africa must be shipped in England by the statute 4. G.17
The Wine.
Certificate.
Doane and his V[ice] Consul dont agree. D. says not shippd, Consul that they were at Tangier.
The only unerring Guide is Truth.
Masters Manifest. From Tangier, should have been from Gibralter.
1. In hands of JA and Sampson Salter Blowers. Adams Papers, Microfilms, Reel No. 185. See notes 10 17 , 13 20 below.
2. The Staple Act of 1663, 15 Car. 2, c. 7, §6: “[N]o commodity of the growth, production or manufacture of Europe, shall be imported into any land, island, plantation, colony, territory or place to his Majesty belonging, or which shall hereafter belong unto or be in the possession of his Majesty, his heirs and successors, in Asia, Africa, or America (Tangier only excepted,) but what shall be bona fide, and without fraud, laden and shipped in England, Wales, or the town of Berwick upon Tweed, and in English built shipping, or which were bona fide bought before the first day of October one thousand six hundred sixty and two, and had such certificate thereof as is directed in one act passed in the last sessions of this present parliament intituled, An Act for preventing frauds, and regulating abuses in his Majesty's customs; and whereof the master and three fourths of the mariners at least are English, and which shall be carried directly thence to the said lands, islands, plantations, colonies, territories or places, and from no other place or places whatsoever; any law, statute or usage to the contrary notwithstanding,” under penalty of forfeiture of ship and goods, one third to the Crown, one third to the Governor of the colony, and one third to the informer. Salt for the New England and Newfoundland fisheries, Madeira and Azores wines, and certain Scottish and Irish commodities were excepted. Id. §7. As to Tangier, see note 14 21 below. For the construction of “imported,” see text at note 5 above.
3. 4 Geo. 3, c. 15, §30 (1764), after reciting that British vessels had been carrying whole cargoes of goods shipped in Europe direct to the colonies under a clearance covering a few articles shipped in Britain, provided that no
“ship or vessel shall, upon any pretence whatsoever, be cleared outwards from any port of this kingdom, for any land, island, plantation, colony, territory, or place, to his Majesty belonging, or which shall hereafter belong unto or be in the possession or under the dominion of his Majesty, his heirs, or successors, in America, unless the whole and entire cargo of such ship or vessel shall be bona fide, and without fraud, laden and shipped in this kingdom; and any officer of his Majesty's customs is hereby impowered to stop any British ship or vessel arriving from any part of Europe, which shall be discovered within two leagues of the shore of any of the said British colonies or plantations in America, and to seize and take from thence, as forfeited, any goods (except as hereinafter mentioned) for which the master or other person taking the charge of such ship or vessel shall not produce a cocket or clearance from the collector or proper officer of his Majesty's customs, certifying that the said goods were laden on board the said ship or vessel in some port of Great Britain.” Id.
Salt, wines of the Madeiras and Azores, and certain Irish commodities were excepted from the last provision. §31.
4. See text at note 2 above.
5. The allusion has not been identified, but the remark undoubtedly should be attributed to Gilbert Burnet (1643–1715), Bishop of Salisbury and ecclesiastical prime mover of the Revolution of 1688, whose best known work is his History of His Own Times (London, 1723–1734). DNB .
6. A reference to Paul's voyage from Judaea to make his appeal to Caesar at Rome, in the course of which he was driven all over the Mediterranean by contrary winds and shipwrecked at Malta before attaining his goal. Acts 27–28.
7. Malaga wines are Spanish, and thus not within the exception in the statutes, notes 2 9 , 3 10 , above. The taster was probably Robert Hallowell, commissioned Comptroller of the Port of Boston in 1770, when his brother Benjamin, who held that office since 1764, was made a Customs Commissioner in place of John Temple. Jones, Loyalists of Mass. 158–160.
8. The archrogue of the 18th century and hero of Henry Fielding's ironic novel, The Life of Mr. Jonathan Wild (London, 1743).
9. The reference is unclear, but it apparently is a reflection on the testimony of Hillman, Cato, and Mathews, who seem to have described a loading operation at Tangier, perhaps involving live cattle. See text at note 16 23 below.
10. This sentence and the following text through note 20 13 are in Blowers' hand. JA was apparently called away during the argument. The point here seems to be that Doane had required the master to submit an altered manifest on entry at Boston. For another example of Doane's casual attitude toward shipping documents, see No. 58, note 27. Compare id., note 17 167 .
11. 15 Car. 2, c. 7, §6, note 2 9 above.
12. 4 Geo. 3, c. 15, §30, note 3 10 above.
13. Probably the beginning of an argument for a construction of the Act favoring the Crown. Compare Fitch's argument in Dawson v. The Dolphin, No. 51, text following note 16 23 , and text at note 2 34 . The remainder of the minutes are in JA 's hand, suggesting that some of the argument may have been lost in the process of his resumption of note-taking.
14. Tangier was a British possession from 1662 until 1684. In the latter year the English abandoned it, blowing up the mole and fortifications which they had constructed. Commercial relations were maintained, however, primarily as a source of provisions for Gibraltar. Louis Sauveur de Chenier, The Present State of the Empire of Morocco, 1:20–21, 2:202, 355–356 (London, 1788).
15. One 18th-century account states that among the goods shipped at Tangier were “oils, gums, wax, elephants-teeth, . . . raw hides and wool.” 2 Chenier, Present State of the Empire of Morocco 356. The reading “pampouses” has been adopted on the supposition that the goods in question were slippers made of undressed cowhide. See OED : “pampootie,” “papoosh, or papouche.” The word might also be “pamponses,” perhaps a form of “pompon” or “pompion,” a kind of melon said to grow in the Indies, Java, and India. OED . Melons were a product of the Mediterranean. See John M. Baker, A View of the Commerce of the Mediterranean 100 (Washington, 1819). Some variety of the fruit might have been shipped to Boston in dried form, perhaps as gourds.
16. See text and note 9 16 above.
17. See note 6 above.