Browsing: Legal Papers of John Adams, Volume 2

The majority of John Adams' cases in the Court of Vice Admiralty involved breaches of the British Acts of Trade. The Acts were a coherent body of legislation, enacted between 1660 and the Revolution, which regulated the flow of colonial trade, laid duties on some aspects of it, and established a system of enforcement. The basic regulatory provisions were: that vessels engaged in the plantation trade had to be English- or colonial-built, owned, or manned; that certain enumerated goods produced in the colonies could be shipped only to England or to another colony; and that most European goods could be shipped to the colonies only from English ports.1

This system was designed primarily to aid the English merchant and shipbuilder by creating monopolies in the colonial trade, but it did benefit colonial shipbuilders, and at least some colonial merchants, by assuring them of markets. The system also was an indirect producer of revenue for the Crown, since goods flowing through English ports were subject to duties to be paid there by the importer or exporter. The only duties levied in the colonies before 1764 had their primary effect as measures to support or encourage trade with England, rather than as direct revenue-producers. Thus, although the Plantation Duties Act of 1673, laying duties upon enumerated goods shipped from one colony to another, had the effect of equalizing the tax burden between English and colonial consumers of colonial goods, its principal aim was to make shipment of these goods to England more economical for the exporter than intercolonial shipment. Similarly, the heavy duties laid upon the importation of foreign colonial sugar products by the Sugar Act of 1733 were designed to put British West Indian sugar producers in a favorable position.2

Enforcement of these measures was in the hands of customs officials in the colonies who were responsible to the Commissioners of the Customs in England.3 The colonial officers administered a complicated documentary control system designed to insure compliance with both regulatory and { 99 } revenue provisions. The basis of the system was the requirement that vessels arriving from or bound for parts beyond the seas enter and clear with the customs officers at each port.4 This practice permitted a constant check on each vessel's compliance with the Acts, as evidenced by certain required documents. For example, the nationality of vessels and crews was controlled through the ship's register, a certified copy of the master's or owner's oath that the vessel was English built, owned, and manned.5 A vessel carrying enumerated goods had to give bond on clearing that they would be landed only in an English or colonial port; if a certificate of compliance were not returned within a certain time, the bond was forfeit.6 To ensure that European goods had been shipped in England, the master was required to submit a manifest, showing the nature, amount, and origin of his cargo before his vessel could enter and unload. The payment of duties was also controlled through the manifest and through certificates of the officers on entry and clearance that duties had been paid.7

To prevent violations, the customs officers had broad powers to search vessels, as well as premises ashore, for contraband, and to seize such goods.8 Violators were subject to a variety of penalties, ranging from small fines for failure to comply with administrative rules to forfeiture of vessel and goods for breach of the substantive requirements of the Acts. Although in England such offenses were within the jurisdiction of the Court of Exchequer, in the colonies many of them could be sued upon in the Courts of Vice Admiralty, which had been established in 1697 primarily for this purpose. The customs officers were allowed to bring suit for penalties and forfeitures, receiving a share of the proceeds upon condemnation. Jurisdiction of these actions was concurrent at common law, but in Massachusetts at least, the officers preferred to proceed in Admiralty, where recovery was not subject to the whim of a jury friendly to the offender.9

There was some opposition to this system at its inception, but after about 1725 the furor generally died down. Historians have seen this reaction as an indication that the colonists had come to accept the benefits which they received in trade with England as compensation for some of the disadvantages which regulation imposed. This was undoubtedly a factor, but it is clear that colonial acceptance was made easier by the fact that after 1725 English policy seemed to be one of deliberately ignoring violations of the system. Revenue collections from the colonies were small, in part because of the regulatory purpose of the revenue measures, but to an even greater extent because of a widespread laxity of enforcement that was known to and condoned by Parliament. Presumably a similar laxity pervaded the enforcement of other provisions of the Acts.10

Adams came upon the scene just as this policy of laxness was being abandoned. New England's trade with the enemy during the Seven Years' War had reached such heights that the Crown made determined efforts to control it through strict enforcement of the Acts of Trade. There was an immediate reaction among the Boston merchants against the Admiralty court and the customs officials, which manifested itself in several ways, including opposition to the officers' application for writs of assistance (general search warrants). Adams attended the first of two arguments on the question, held before the Superior Court at Boston in February 1761. Although he was not of counsel, he produced a report which was widely circulated and of some importance in later political struggles. Boston's resistance to the application, although unsuccessful, marked the first step in an opposition to the Acts which was to culminate in the American Revolution.11

At the conclusion of the war in 1763 England was both financially strained and sharply aware of the extent of colonial evasion of the Acts of Trade. The American Act of 1764 was directed at both problems. For the first time duties were levied on colonial imports for the express purpose of raising a revenue. To prevent violation of this and other Acts, various holes in the enforcement system were plugged with requirements for ad• { [facing 100] } { [facing 101] } { 101 } ditional bonds and certificates and a closer check by the customs officers. Heavy pecuniary penalties against offenders were set in addition to the previous system of forfeitures, and it was made clear that all violations of the Acts could be sued upon in colonial Admiralty courts. In these suits the prosecuting officers were given certain procedural advantages. Finally a new superior court of Admiralty was created to hear cases from any province.12

Before the effect of these new measures could be felt, Parliament passed the Stamp Act of 1765, a provision for further revenue to be levied by a tax upon a variety of documents and printed matter. Colonial objections to the American Act were submerged in a sudden rush to defy the Stamp Act. In Boston, violence and the threat of violence prevented the distribution of the stamps. One result was that the courts, which required stamped paper for their documents, were closed. Adams appeared before the Governor and Council in December 1765 for the Town of Boston to pray that the courts be opened without stamps. Although his arguments took account of the political nature of the body which he was addressing, his notes show that he backed up rhetoric with authority, relying upon the kind of argument that had earlier been made against writs of assistance. The petition was denied on the ground that the question was a judicial one, but the Inferior Court soon opened in acquiescence to popular pressures. The Superior Court was formally opened, but did only token business until news of the Stamp Act's repeal was received in May 1766.13

Along with repeal, most of the duties of 1764 were reduced to acceptable levels.14 The enforcement provisions were not repealed, however. Calm temporarily prevailed until a change of governments in England brought Charles Townshend, long a proponent of colonial taxation, to the post of Chancellor of the Exchequer. The Townshend Acts of 1767 again laid duties upon American imports, to be used in part to pay colonial officials independently of the legislatures. The Acts renewed the drive for strict enforcement by authorizing the appointment of an American Board of Customs Commissioners to sit at Boston and exercise the powers formerly { 102 } held by the English Commissioners.15 At the same time the superior court created in 1764 was superseded by four new district courts of Admiralty, to sit at Halifax, Boston, Philadelphia, and Charleston, and exercise both original and appellate jurisdiction over surrounding provinces.16

Adams does not seem to have tried a revenue case in the Court of Admiralty before 1768. In that year, however, the activities of the Commissioners inevitably drew him into such matters. Their immediate application of the new enforcement policy increased the number of actions in Admiralty to the point where there was need for additional lawyers. Further, the Commissioners' policy aroused an immediate opposition among the merchants who seemed determined to spare no effort in resistance. Accordingly, Adams' first such case, Folger v. The Cornelia, No. 45, which was a direct confrontation between the Commissioners and those who had found the previous administration more agreeable, marked the beginning of a busy year and a half in the Court of Admiralty.17

The seizure of John Hancock's sloop Liberty in June 1768 provided the focus for the attack upon the Commissioners. Adams was deeply involved in this affair, both as counsel for Hancock in an action brought against him for penalties, and as a draftsman of political manifestos for the Town of Boston.18 At the same time there was a steady stream of less important revenue litigation in which Adams participated, perhaps because he was in court on Hancock's business.19 Although Adams was politically committed to opposition to the Acts of Trade, he was of counsel for Crown officers in two cases in the spring and summer of 1769.20 As a lawyer, he had a right, if not a duty, to give his services to those who sought them. In view of the political situation, however, it is likely that he was under heavy pressure from the Crown to yield a more permanent allegiance. In his Autobiography, Adams wrote that sometime { 103 } during 1768 Jonathan Sewall had asked him to take over his position as advocate general in Admiralty. Adams reported that he had had no trouble in refusing this offer, since he wished to be under no obligation to those whose political principles he opposed. There is other evidence that some such episode took place. Perhaps Adams' legal activities for the Crown indicate that he gave Sewall's proposal more serious consideration than he was later willing to admit.21

The uproar over the Liberty led the Crown to send troops to Boston. The presence of soldiers and continued tension over the Commissioners' activities led at length to the Boston Massacre in March 1770 (Nos. 63, 64). In the aftermath of this episode the troops were withdrawn, and the Commissioners, who were accused of instigating both the Massacre and the earlier shooting of a small boy by their employee Ebenezer Richardson (No. 59), greatly moderated their tactics. The Boston merchants, feeling a revulsion against civil disobedience, in the fall abandoned the policy of nonimportation with which they had reacted to the Townshend Acts. Parliament had contributed to the atmosphere of conciliation in March by repealing all of the Townshend duties except the tax on tea.

So far as is known, Adams had no Admiralty cases for nearly three years after the summer of 1769. Although he may have withdrawn from practice in the court in disgust at the political ramifications, there are other possible explanations. In 1769 his business in the common-law courts drastically increased to the level where it was to remain until the Revolution. At the same time the atmosphere of conciliation following the Massacre had greatly reduced the number of customs cases and diminished the political tension which had surrounded such matters. A balance of interests in favor of the economics of the profession probably accounts for Adams' abandonment of the Admiralty.22

Whatever the reason, he does not seem to have appeared there again until February 1772, when he was retained in the first appeal brought before the Boston District Court of Admiralty since its creation in 1768. Robert Auchmuty, previously judge for the Province, had been appointed to the new court, but he had apparently continued to sit in his former capacity also, thus rendering appeals of doubtful value in Massachusetts. The decision in this case had been given by Auchmuty's deputy in New Hampshire, however. In his diary Adams noted that “as it is a new Thing the Judge has directed an Argument, and a Search of Books concerning the Nature of Appeals by the civil Law. I found Time to look into Calvins Lexicon Title Appellatio and Provocatio, and into Maranta, who has treated largely of Appeals. Borrowed Ayliff, but there is no Table and could find nothing about the Subject. Domat I could not find.” The appeal and another from the condemnation of a vessel belonging to John Langdon of New Hampshire, were decided in favor of the Crown, presumably in spite of the efforts of Adams, who was probably on the side of the claimants.23

Adams did undertake at least two revenue cases in 1772 and 1773. Although the burning of the revenue cutter Gaspee in Rhode Island and the special tribunal appointed to investigate the incident had awakened political responses in him and in many others, his later cases had no particular political relevance, except as further evidence to the colonists of the oppressiveness of the system.24 The tax on tea, left unrepealed in 1770, finally led to the events which terminated whatever uneasy truce remained and took political dispute beyond the confines of the courtroom. In 1773 Parliament had saved the East India Company from collapse by an Act allowing it a full drawback of English duties on tea shipped to the colonies, and permitting it to ship directly to colonial consignees, instead of dealing through English tea merchants. With these advantages, the Company could now compete with the smugglers who had been evading the duty regularly since 1770. An increase in the sales of legally imported tea meant an increase in duties. More revenues meant more funds to be applied under the Townshend Acts to pay the salaries of royal officials. This threat aroused Boston, and other colonial ports, to action.25

The first of the tea ships, the Dartmouth, arrived in Boston harbor on 28 November, and, apparently at the request of the Committee of Correspondence, came up to the town on the 30th, taking a berth at Griffin's Wharf the next day. There she was soon joined by other vessels. The ships had apparently entered at the Custom House soon after arrival, but none of the tea was unloaded. The “Body,” the ad hoc mass meeting which purported to speak for Boston, demanded that the ships be sent home with cargo still intact, but the owners were unable to comply. The customs officers refused to issue clearances until the tea had been unloaded, and Governor Hutchinson would not allow the province naval officer to give the vessels a pass to leave the port without a clearance.

In this state of things the owners of the Dartmouth sought counsel from Adams and Sampson Salter Blowers. The owners probably wanted both arguments to use before the customs officials and Hutchinson, and advice on the potential liability of the Dartmouth and her cargo for seizure. The account of the vessel's master shows that Adams and Blowers were paid a total of £7 4s. for “advice,” but no indication of its nature has survived.26 Under the applicable statutes duties were due upon “importation” and goods could be seized if duties remained unpaid twenty days after entry. The principal questions were probably whether there had been an “importation” within the Act when bulk had not been broken, and if there had, whether the customs officers could nevertheless clear out vessel and cargo without payment of duties.27 Before these questions could be raised in any legal proceeding, events made them moot. On 16 December Hutchinson refused a last request for a pass and an immortal band of Indians proceeded to dump the tea into Boston Harbor, in what Adams described in his diary as “the most magnificent Movement of all.”28

In reaction to this act of defiance, Parliament passed the Boston Port Act and other coercive measures designed to punish the Town and its supporters by terminating its trade and abridging provincial self-govern• { 106 } ment.29 Adams does not seem to have had further cases in the Vice Admiralty Court, but he was at least present to report a case in which the Port Act was put to the test there in the summer of 1774 (No. 53). In the meantime the colonies had begun to move toward union, revolution, and independence. The First Continental Congress sat at Philadelphia in September 1774, with Adams among its members.30 Before independence was formally declared, the British sought to bring the colonies to heel by Act of Parliament, extending the Port Act to other colonial ports. Finally Britain laid a total embargo on colonial commerce in a statute that was not an Act of Trade, but a measure regulating the taking and distribution of prizes. Adams' only contact with this later legislation was in the somewhat different context of prize litigation during the Revolution.31