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
{ 100 } 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
{ 104 } 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
{ 105 } 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