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Browsing: Legal Papers of John Adams, Volume 2

Docno: ADMS-05-02-02-0008-0002-0001

Editorial Note

British impressment of American seamen, a grievance normally associated with the War of 1812, actually antedated even the Revolution, as the present case shows. Early in the morning of Saturday, 22 April 1769, H.M. Frigate Rose, patrolling on the high seas off Marblehead, intercepted and stopped the brig Pitt Packet (Thomas Power master), owned by Robert “King” Hooper, manned with a crew of Irishmen, and homeward bound { 277 } from Cadiz, Spain, with a cargo of salt.1 Henry Panton, the lieutenant, or executive officer, of Rose, came aboard with some sailors and marines, asked for the vessel's papers, and commenced a search. In the forepeak, a small space under the weather deck between the stem and the main hold, he discovered crewmen Michael Corbet, Pierce Fenning, John Ryan, and William Conner, variously armed with fish gig, musket, hatchet, and harpoon. To Panton's threats and entreaties, they remained obdurate and menacing; even when the officer secured reinforcements from Rose and commenced to have the bulkhead torn down, they refused to budge.
According to John Adams' later reminiscences of the testimony at trial, Corbet drew a line in the salt and told Panton, “ 'If you step over that line, I shall consider it as a proof that you are determined to impress me, and by the eternal God of Heaven, you are a dead man.' 'Aye, my lad,' said the lieutenant, 'I have seen many a brave fellow before now.' Taking his snuffbox out of his pocket, and taking a pinch of snuff, he very deliberately stepped over the line, and attempted to seize Corbet. The latter, drawing back his arm, and driving his harpoon with all his force, cut off the carotid artery and jugular vein, and laid the lieutenant dead at his feet.”2
But the truth, at least according to the actual testimony at the trial, set out in Document V, suggests that Panton, rather than striding into danger, was sitting on the salt, there being no room to stand, and that Corbet, like his friends, was “pushing” at the men who were tearing apart their fortress. At least one pistol had been fired into the forepeak, and it could be only a matter of time before someone was seriously hurt. In the confusion, Corbet thrust with his harpoon, striking Panton, who was carried topside where he bled to death within two hours. Corbet and the others meanwhile were gradually subdued, and that only because, it was rumored, they had drunk themselves into a stupor.3
Now the authorities faced the serious problem of properly dealing with the sailors. It was clear that they could not be indicted and tried in one of the common law courts, because the offense had not been committed within the bounds of any county, but the statutes providing for Admiralty jurisdiction of such offenses left the question of jury trial in doubt. The { 278 } original Act of Henry VIII specified a jury trial before a special Admiralty court in England;4 a statute passed in the time of William III indicated that trial in the colonies ought to be without a jury.5 Finally, an Act of George I seemed to restore the jury right.6 Predictably, the defendants pressed for a jury trial, while the Crown advocates tried to bar it.
But even if the mode of trial were settled, there still remained two knotty issues: Of what crime should the men be accused, and by what substantive law should they be tried? Adams, who with James Otis defended the sailors, was in later years to claim that the successful result of the trial hinged on his discovery of a statute which forbade impressment of American seamen, and on the court's fear that it might have to apply that statute.7 It is certainly true that the statute in question seemed to render Rose's press gang illegal; that being so, then Panton had no authority to threaten or attempt to seize Corbet, and the killing could be justified on grounds of self-defense. But the issue appears to have been current long before the trial. If one can believe “A Journal of the Times,” the loyalists were contending as early as 5 May 1769 that Panton had gone aboard, not to search for seamen, but to inspect for contraband,8 an argument which the Crown advocates, Samuel Fitch and Jonathan Sewall, were to echo at the trial. And indeed, almost a year before Panton's death, the “Instructions of the Town of Boston to their Representatives,” written by Adams himself, had set out the entire relevant section of the act.9
Much depended on the question of the applicable substantive law. If the common law applied, then, unless the homicide were justifiable, the accused would be liable to conviction of manslaughter; and the statutes left it unclear whether in trials before the Special Admiralty Court the benefit of clergy could be pleaded, as it could have been at common law. If the trial were, on the other hand, to be held according to the civil law (which usually controlled ordinary Admiralty proceedings), the killing was { 279 } punishable by death only if it was murder; there was no death penalty for the crime which the common law called manslaughter (intentional, unjustifiable, inexcusable homicide without malice).
The Crown officers proceeded carefully. Panton was barely in his King's Chapel grave10 when Governor Bernard, Lieutenant Governor Hutchinson, Commodore Samuel Hood, Province Secretary Oliver, and Admiralty Judge Auchmuty, Commissioners for the Trial of Piracies, went aboard Rose to confer with Captain Caldwell.11 Shortly thereafter, an account of the affair, based, as it later developed, on the various depositions of Rose's people, appeared in the tory Boston Chronicle and so angered the patriots that they attempted to counter it with a rehash of an earlier version which everyone, including the Chronicle, had already published.12
In the face of conflicting documents, Adams' shifting memory, and the disappearance of the pleadings, the exact chronology of the litigation is hard to trace. However, the following seems probable. “Articles” were drawn up against each defendant by Ezekiel Price, Register (Clerk) of the Court of Vice Admiralty. On Tuesday, 23 May 1769, the Special Court of Admiralty, called pursuant to the Commission for the Trial of Piracies, convened. In addition to the five Commissioners who had visited Rose, the court consisted of Governor John Wentworth and Councilors Jonathan Warner and George Jaffrey of New Hampshire; Judge John Andrews of the Rhode Island Court of Vice Admiralty; Collectors Joseph Harrison of Boston, John Nutting of Salem, and Robert Trail of Portsmouth. However, at the first session, only Bernard, Hutchinson, Hood, Auchmuty, Oliver, Trail, and Nutting attended.13 The jury-right issue having been raised early, the court adjourned to Thursday, 25 May, meanwhile hearing argument (Document II); then it further adjourned to Monday, 29 May, when Adams filed his plea to the jurisdiction (Document III), upon which the court “thought proper to take the same under consideration,” and adjourned to 14 June.14
Finally, on Wednesday, 14 June 1769, the trial commenced in the Court House. “No trial had ever interested the community so much before, excited so much curiosity and compassion, or so many apprehensions of the fateful consequences of the supremacy of parliamentary jurisdiction, or the intrigues of parliamentary courts. No trial had drawn together such crowds of auditors from day to day; they were as numerous as those in the next year, at the trials of Preston and the soldiers.”15
The court quickly announced that it had overruled the pleas, and pro• { 280 } ceeded to trial.16 The taking of evidence commenced immediately and continued for three days; the testimony seems to be substantially reproduced in Adams' minutes (Document V). In contrast to the common-law practice, the evidence was “taken down by the clerk and the counsel in writing.”17 It should be noted that none of the accused testified. There is no evidence that any attempt was made to call any of them as witnesses on behalf of any of the others. Of course, no accused could testify in his own behalf, even at common law; but it was customary at common law when a number of prisoners were tried on the same facts for the court to acquit those whom the evidence did not materially affect, in order that the others might call them as witnesses.18
On Saturday, 17 June, Adams rose to make the argument which is detailed in Document VI. He had barely commenced, and had begun to argue that the killing was only justifiable homicide, when, as he loved to tell in later years, Hutchinson moved for adjournment. The court retired for four hours, then returned with its decree: Justifiable homicide, and the prisoners set at liberty. Although Adams insisted that it was fear of the nonimpressment statute which swayed the court, Hutchinson gave a different reason: “It appeared that neither the lieutenant nor any of his superior officers were authorized to impress, by any warrant or special authority from the lords of the admiralty; and the court (the commanding officer of the king's ships being one of the commissioners) was unanimously of opinion that the prisoners had a good right to defend themselves, and, though the fact of killing was fully proved, that they ought to be acquitted of murder, with which they were charged, and that, at common law, the killing would not have amounted to manslaughter.”19 In other words, Adams' substantive legal argument prevailed.
Immediately upon the acquittal, Ryan, whose arm had been broken by a pistol ball in the fracas, brought an action against Midshipman William { 281 } Peacock, who had fired the shot. The Sheriff rowed out to Rose and seized Peacock personally, taking £300 bail in lieu of an arrest.20 Commodore Hood himself sought vainly to buy Peacock's peace, writing Adams (who represented Ryan) and offering his client a cook's place in the fleet, which, with its perquisites, was worth £30 a year. But Ryan refused “because he had fallen in love and would be married,” and the matter was finally settled for £30.21
Adams always remembered Corbet's case warmly. He considered it more important than the Massacre trials,22 and he never forgot the honest testimony of the British sailors (some of whom testified in behalf of the prisoners) and their apparent abhorrence of the press gang.23 At one time, he contemplated publishing a report of the case. Characteristically, he noted: “A great Variety of useful Learning might be brought into an History of that Case—and the great Curiosity of the World after the Case, would make it sell. I have half a Mind to undertake it.”24 Apparently, { 282 } he did take some steps along those lines, because the documents here set out, particularly Documents II and VI, indicate careful expansion of legal jottings and courtroom minutes. Document I seems to be the rough notes on which he based his argument, expanded in Document II. Document III is the plea, and Document IV additional pleadings in the nature of demurrer and joinder. Adams' actual trial minutes are Document V, while his final argument is Document VI.
The editors have decided to place the litigation materials in roughly chronological order, and have therefore divided some of Adams' documents at appropriate places. The MS trial minutes (Document V) contain also a series of eight leaves in Adams' hand which Brooks Adams called “supplementary notes.”25 They appear, in fact, to be Adams' digest of the various witnesses' depositions. Thus the summary of Hugh Hill's testimony commences: “Like the Master's till. . . .” And John Roney's starts: “As the Master.” In the present arrangement of the materials these have been placed as footnotes to each respective witness' trial testimony.
It is tempting to speculate that these notes are evidence of pre-trial discovery techniques not usually associated with traditional Admiralty practice.26 However, a more probable view is that, all the witnesses being mariners, each deposition had been taken in rei perpetuam, against the possibility of the witness' being at sea when the case came to trial.27
1. See Rowe, Letters and Diary 186–187. “Not one American belonging to the Brig.” Boston Gazette, 5 May 1769, p. 1, cols. 1–2; Boston Chronicle, 27 April 1769, p. 135, cols. 2–3. As to the Pitt Packet's cargo, see Customs Commissioners to Salem Customs Officers, 27 April 1769, Salem Custom House Record Book, 1763–1772, fols. 280–281, MSaE.
2. “The Inadmissible Principles of the King of England's Proclamation of October 16, 1807, Considered,” 9 JA, Works 312, 318. See JA to JQA , 8 Jan. 1808, 44 MHS, Procs. 422, 424 (1910–1911).
3. See Boston Chronicle, 27 April 1769, p. 135, col. 2; Boston Gazette, 1 May 1769, p. 1, cols. 1–2; “A Journal of the Times,” 4 May 1769, Dickerson, Boston under Military Rule 94–95. “About noon two of the people delivered themselves up, and soon after they seized Corbet. They were all carried on board the Rose. It must be observed the man who was wounded came out soon after Mr. Panton was killed. N.B. It has been said the Brig's men were drunk, but they did not appear so when they were carried on board the Rose.” Boston Chronicle, 1 May 1769, p. 139, cols. 2–3.
4. 28 Hen. 8, c. 15 (1536).
5. 11 & 12 Will. 3, c. 7 (1700).
6. 4 Geo. 1, c. 11 (1717). This statute, and those in notes 4 and 5, are discussed at p. 275–276, notes 2, 4, 5, above, and are set out in part at notes 17 34 , 2–11 40–49 , 14–15 52–53 , below. See also No. 57, note 2 57 .
7. 6 Anne, c. 37, §9 (1707); see JA to William Tudor, 30 Dec. 1816, 2 JA, Works 224, 225. Of Otis, JA later said, “[H]is unhappy distemper was then in one of its unlucid intervals, and I could hardly persuade him to converse with me a few minutes on the subject; and he constantly and finally refused to appear publicly in the cause.” Id. at 224.
8. “A Journal of the Times,” 5 May 1769, Dickerson, Boston under Military Rule 95. As to the veracity of the “Journal,” see No. 46, notes 30–41, text at note 45. The Pitt Packet, having been seized and “rummaged” at Boston, was ordered admitted to entry at Marblehead by the Customs Commissioners, with a few prohibited goods in stores. The officers of the port were ordered to search carefully, however, lest there be further prohibited goods concealed beneath her cargo of salt. See Commissioners to Salem Officers, 27 April 1769, Salem Record Book, 1763–1772, fols. 280–281, MSaE; note 34 96 below. As to impressment, see note 2 102 below.
9. 3 JA, Works, 501, 503–504. The “Instructions” are dated 17 June 1768. Impressment had been a Boston grievance at the time of the Liberty riot in June 1768. See No. 46, notes 12, 21.
10. Boston Chronicle, 1 May 1769, p. 140, col. 1.
11. Boston Gazette, 8 May 1769, p. 2, col. 1. The visit took place on 29 April.
12. Boston Chronicle, 1 May 1769, p. 139, cols. 2–3; see note 3 above.
13. See Boston Gazette, 29 May 1769, p. 3, col. 1; id., 19 June 1769, p. 1, col. 3.
14. Boston Gazette, 29 May 1769, p. 3, col. 1; Boston News-Letter, 1 June 1769, p. 3, col. 1.
15. JA to Jedidiah Morse, 20 Jan. 1816, 10 JA, Works 204, 209–210. The trial was among the first held in the newly built court house on Queen (now Court) Street. See Thwing, Crooked and Narrow Streets 95.
16. Massachusetts Gazette, 15 June 1769, p. 1, col. 3; Boston Gazette, 19 June 1769, p. 1, col. 3. It is interesting to speculate that in coming to its conclusion the court may have contemplated an item from the Boston Chronicle, 25 May 1769, p. 167, col. 2, describing the trial in New York, “before a court of Admiralty held in the City hall, consisting of his Excellency the Governor, the gentlemen of his Majesty's Council &c.,” of Joseph Andrews, accused of piracy and murder in Aug. or Sept. 1766. He was convicted and condemned to be hanged.
17. Boston Chronicle, 19 June 1769, p. 195, col. 2; JA to Jedidiah Morse, 20 Jan. 1816, 10 JA, Works 204, 207. The procedure, particularly the questioning of witnesses by the court and by the accused, suggests 18th-century naval court-martial procedure. See, for example, Owen Rutter, The Court-Martial of the Bounty Mutineers (London, 1931). Hood was president of the Bounty trial (1792).
18. This point arose in the Bounty trial, and resulted in the reversing of one of the convictions. See Rutter, The Court-Martial of the Bounty Mutineers 53–54.
19. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 167. For JA 's versions, see sources cited in notes 7, 15, 17, above. JA 's recollection, JA to William Tudor, 30 Dec. 1816, 2 JA, Works 224, 225–226, that the court considered its decree overnight, is probably erroneous in light of the contemporary note that the court consulted from 9 to 1 p.m. on Saturday, 17 June. Boston Chronicle, 19 June 1769, p. 195, col. 2. It is possible, however, that JA began to argue and was interrupted late on Friday, and the court adjourned to consider on Saturday.
20. Boston News-Letter, 22 June 1769, p. 2, col. 1. SF 101703.
21. JA to JQA , 8 Jan. 1808, 44 MHS, Procs. 422, 424; Hood to James Bowdoin, Halifax, 24 April 1770, 1 Bowdoin-Temple Papers (9 MHS, Colls. , 6th ser.) 175, 176 (1897); Hood to James Bowdoin, 7 Aug. 1770, id. at 210. Ryan's release, in SF 101703, is here set out in full to illustrate how little personal injury litigation has changed in two centuries:
Know all Men by these presents that I John Ryan late of Marblehead in the County of Essex, now of Boston in the County of Suffolk and Province of the Massachusetts Bay Mariner, for and in Consideration of the Sum of Thirty pounds Lawful Money of the Kingdom of Great Britain, to me in Hand paid before the Executing of these presents by William Peacock of his Majesty's Ship Rose, now in said Boston Gentleman, the Receipt whereof I do hereby acknowledge; Do by these presents fully and absolutely Release Remise and for ever acquit and Discharge the said William Peacock his Heirs, Executors and Administrators of and from all and all Manner of Action and Actions Cause and Causes of Action, Suits, Sum and Sums of Money, Controversies Variances, Damages, Trespasses, Claims and Demands Whatsoever in Law and Equity which against the said William Peacock I the said John Ryan ever had, now have or which I, my Heirs, Executors or Administrators hereafter can shall or may have for, upon, or by Reason of any Matter, Cause, or Thing whatsoever from the Begining of the World to the Day of the Date of these Presents: More especially a Certain Action of Trespass brought by me the said John Ryan against the said William Peacock and which is now depending in the Superiour Court of Judicature &c. now holden at Said Boston in and for said County of Suffolk; which said last mentioned Action, and the Cause thereof being settled, I hereby Release and Discharge the same and all Costs thereon, and acquit and Discharge him the said William Peacock therefrom forever: In Witness whereof I have hereunto set my Hand and Seal this thirtieth Day of August in the Tenth Year of the Reign of his Majesty George the third of Great-Britain &c. King Annoque Domini 1770.
[signed] John Ryan
22. JA to Jedidiah Morse, 20 Jan. 1816, 10 JA, Works 204, 210: “Panton and Corbet ought not to have been forgotten. Preston and his soldiers ought to have been forgotten sooner.”
23. See letters cited in notes 2 and 22 above.
24. Diary, 23 Dec. 1769, 1 JA, Diary and Autobiography 347. JA 's plan for a report consisting both of the record of the case and a statement of the broader arguments involved (ibid) resembles that of Henry Laurens, Extracts From the Proceedings of the Court of Vice-Admiralty In Charles-Town, South-Carolina (Phila., 1768). See No. 46, notes 73, 75. JA may also have contemplated such a report of Hancock's case. Id., text at notes 72–77.
25. Appendix to BA , “The Convention of 1800 with France,” 44 MHS, Procs. 377, 429 (1910–1911). Because the stitching in JA 's paper booklet recording the evidence wore away long ago and allowed the leaves of the MS to get out of order, BA printed some of the testimony in an improper sequence; the order of the documents in the Adams Papers microfilms is also wrong. What is with little doubt the correct order of the evidence on both sides has been restored below. See also note 33 95 below.
26. See Miner v. Atlass, 363 U.S. 641 (1960).
27. See “An Act for Taking of Affidavits out of Court,” 12 Dec. 1695, 1 A&R 225, 226.
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