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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0006-0004

Sewall v. Hancock

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1768–1769

Docno: ADMS-05-02-02-0006-0004-0001

Editorial Note

In November 1768 Adams undertook the defense of John Hancock in what, politically, was his most important case until the Boston Massacre trials (Nos. 63, 64). Jonathan Sewall, the advocate general, had sued Hancock in Admiralty for penalties incident upon the alleged smuggling of wine from the latter's sloop Liberty. The circumstances of this prosecution and portions of Adams' defense were carried in a variety of contemporary newspapers and played a leading part in the development of colonial opposition to the British customs system and Vice Admiralty courts.
The case arose in a Boston already antagonized by the activities of the recently formed American Board of Customs Commissioners. The fate of Timothy Folger and the sloop Cornelia (No. 45), must have convinced the town, if proof were needed, that the Commissioners had no interest in the { 174 } kind of benign administration that might have permitted an accommodation between the stringencies of the Townshend Acts of 1767 and the realities of commercial life. In the forefront of mounting opposition to the Board and the Acts was Hancock, leading merchant, Boston selectman, and representative to the General Court, who must have been pleased to find that he could so easily combine his zest for politicking with pursuit of his commercial interest. His political tactics included a variety of threats, boasts, and social snubs, nicely calculated both to offend the Commissioners and to arouse the public.1
On the commercial side, Hancock's opposition was less flamboyant, but no less determined. In early April, he had found Owen Richards, one of two tidesmen sent to supervise the discharge of his brigantine Lydia, poking around in the hold of that vessel. Hancock ordered Richards forcibly brought topside, making clear that he considered the deck to be the limit of the officer's jurisdiction.2 Attempts to prosecute Hancock in the Superior Court for this incident were frustrated when Jonathan Sewall gave his opinion as attorney general that no offense had been committed and refused to put the matter in suit. The Commissioners wrote to England asking that Sewall be overruled.3 Before a reply could be received, the affair of the Liberty gave them a better opportunity to make an example of their chief tormentor.
The sloop had arrived in Boston from Madeira on 9 May; next day, Nathaniel Barnard, her master, made entry of twenty-five pipes of madeira wine, upon which the duties were paid.4 According to the later testimony of various royal officials, Hancock had boasted that he would land wine from his vessel without payment of duties, and rumors were rife that he had done so.5 The customs officers had to be satisfied with rumor until, on { 175 } 10 June, Thomas Kirk, a tidesman who at the time of the Liberty's arrival had reported nothing amiss, now made affidavit to a different story. On the night of 9 May, he testified, one Captain Marshall came aboard and, after failing to persuade Kirk to allow several casks of wine to be unloaded before the vessel's entry the next day, locked him in the steerage. Confined for about three hours, Kirk “heard a Noise as of many people upon deck at Work hoisting out Goods,” as well as “the Noise of the Tackles.” He was released when the activity ceased, but Marshall's dire threats had kept him silent; Marshall had since died, and Kirk no longer feared to come forward.6
Joseph Harrison, Collector of the port, presented Kirk's affidavit to the Commissioners. Corroboration was impossible, Kirk's fellow tidesman being variously reported as asleep or drunk during the hours in question, but the Commissioners and their solicitor determined that the affidavit was grounds for a seizure of the Liberty for violation of the statutory provisions against unloading before entry. Harrison and Benjamin Hallowell, the Comptroller, were ordered to make the seizure. To avoid the possibility that the townspeople might rescue the vessel, the Commissioners suggested that the officers obtain the assistance of H.M.S. Romney, which had arrived in the harbor on 17 May in response to the urgent pleas of the Board that it could not enforce the laws without such assistance.7
At about sunset on the 10th, with the tide near full, Harrison, Hallowell, and a number of lesser officers proceeded to Hancock's wharf, where the Liberty lay, loaded with two hundred barrels of oil and a few barrels of tar. According to a contemporary account, these goods were not cargo for another voyage, but had been put aboard for storage, there being no room in the warehouses along the wharf.8 The officers boarded the sloop, { 176 } went through the formalities of seizing her, and signaled the Romney, at anchor nearby. Two boats of marines and sailors came to the wharf and set about taking the Liberty in charge. Meanwhile a crowd, including Captain Daniel Malcom (long an enemy of the revenue) and a number of other waterfront figures known to be friendly to Hancock, had gathered. Despite assurances from the mob that there would be no interference with the seizure, and efforts to hold the vessel to the wharf, the marines cut her loose and, with the consent of Harrison and Hallowell, towed her out into the harbor, where she was moored under the guns of the Romney.9
A small riot then ensued, in the course of which Harrison and Hallowell were roughed up, windows in their houses were smashed, and the Collector's pleasure boat was burned on the Common.10 The Commissioners, fearing that they would be next, went into hiding and the next day transferred their operations to the Romney. Harrison began to negotiate with Hancock for the return of the Liberty in exchange for a bond for her value to abide the outcome of proceedings against her in the Court of Admiralty.11 Meanwhile, Boston remained in an uproar, stimulated by a series of town meetings at which fiery orations were delivered. John Adams' first connection with the case was his service upon a committee appointed by the Town to draw up instructions to its representatives.12 Hancock at length { 177 } declined to stipulate for the vessel, apparently on the theory that her continued presence in the harbor would serve to keep the Town reminded of the incident.13 After the failure of this step at conciliation, the Commissioners chose to view the situation in Boston as one of serious emergency; and, when Governor Bernard reported that he could not guarantee their personal safety in town, they took up residence at Castle William in Boston Harbor. From this retreat the North American customs were managed until mid-November, when the presence of troops and Governor Bernard's assurances finally eased the Commissioners' fears.14
While the Commissioners languished, Jonathan Sewall on 22 June filed a libel in behalf of Joseph Harrison against the Liberty and the oil and tar aboard her at the seizure.15 Although no papers in the suit have survived, the grounds were probably three: (1) landing goods before entry, as Kirk had sworn; (2) loading the oil and tar without having given bond; and (3) loading the oil and tar without having a sufferance from the Collector. For the first, the penalty was forfeiture of the vessel;16 for the { 178 } second, vessel and goods were forfeit;17 and for the third the goods alone were forfeit.18 The second and third counts would have been included to justify seizing the oil and tar and retaining it aboard the Liberty as she lay under the Romney's protection. To have brought the sloop back to the wharf for discharge would have exposed her to rescue. These counts, of course, had the additional value of further harassing Hancock by complicating the suit and by tying up his goods pending the outcome.
The identity of Hancock's counsel in this in rem proceeding is not known. He may well have been Adams, who had recently tried Timothy Folger's action against the sloop Cornelia (No. 45), in which Hancock was a witness. Adams was doubtless on hand in the summer of 1768, since he had recently moved to Boston19 and had no cases on circuit with the Superior Court in June or July. Whoever Hancock's lawyer was, he did not let the forfeiture go by default. An appearance was entered on 7 July and, after several continuances, Hancock's claim was filed on the 29th. Counsel had earlier agreed that witnesses should be examined by the Register upon interrogatories filed by the parties. On 4 August, Judge Auchmuty himself attended the examination of two witnesses, Captain Malcom and William Mackay. Auchmuty gave his decree on 17 August, declaring the Liberty forfeit, but releasing the oil and tar.20 No copy of the decree exists, but it { 179 } apparently condemned the Liberty for unlading without entry, and cleared the oil and tar as having been loaded for storage rather than shipment.21 On 6 September, the sloop was put up for sale and purchased by Harrison for the Commissioners, who proceeded to have her fitted out as a revenue cutter. In this capacity she served until July 1769, when a Rhode Island { 180 } mob seized and burned her at Newport in wrath over the enforcement activities of her commander, Captain William Reid.22
The focus now shifted to those responsible for running the wine and fomenting riot. Efforts to indict the rioters before the Suffolk Grand Jury in August were effectively forestalled when Boston returned Captain Malcom and other alleged participants as jurors.23 On 2 September the Commissioners directed their solicitor to consult with the advocate general as to prosecuting “the master of the Sloop Liberty and all persons concerned in running the cargo for treble the value of the goods run.”24 During the summer, in response to a request from the Lords of the Treasury for an opinion on a memorial submitted by the Commissioners, William DeGrey, Attorney General in England, had found that there was not only a basis for proceeding against the vessel, but that “Actions may likewise be brought against the Persons concern'd in the unshipping the Goods, and in obstructing the Seizure.”25 Emboldened or coerced by this opinion, Sewall on 29 October filed informations against Hancock and five others, including Nathaniel Barnard, master of the Liberty, and Daniel Malcom.26 { 181 } His delay had probably resulted, at least in part, from a prudent desire to wait until excitement over the arrival of the first troops in September had died down and they were in place and ready to be of assistance.27
The suits were based on a provision of the American Act of 1764 that persons “assisting or otherwise concerned” in landing goods without payment of duties should forfeit treble the value of the goods in a proceeding in the Court of Admiralty. Despite a certain vagueness in the language of the information, it is clear that Sewall brought the actions as informer. In this capacity he was entitled to a third of the proceeds, which may have been the price of his abandonment of an earlier reluctance to proceed in such an unpopular cause.28 The information against Hancock alleged that he had aided and assisted in landing one hundred pipes of Madeira wine valued at £30 sterling each, knowing that the duties had not been paid. The penalty sought was £9,000, treble the value of the wine. Judge Auchmuty set bail at £3,000 and ordered a warrant to issue for Hancock's appearance on 7 November.29 According to the patriot propaganda sheet, “A Journal of the Times,” the warrants were served on 3 November by “Mr. Arodi Thayer, marshal of the Court of Admiralty for three provinces, with a hanger at his side.” After offers of property and Massachusetts currency for bail were refused, Hancock and the others produced the amount demanded in sterling.30
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When the court sat on 7 November, the informations were read and the matter continued until the 28th.31 Thus began a lengthy trial, in which Adams served as counsel for Hancock and probably the other respondents as well. Years later in his Autobiography he said of Hancock's case: “and a painfull Drudgery I had of his cause. There were few days through the whole Winter, when I was not summoned to attend the Court of Admiralty. It seemed as if the Officers of the Crown were determined to examine the whole Town as Witnesses. Almost every day a fresh Witness was to be examined upon Interrogatories. They interrogated many of his [Hancock's] near Relations and most intimate Friends and threatened to summons his amiable and venerable Aunt, the Relict of his Uncle Thomas Hancock, who had left the greatest Part of his Fortune to him. I was thoroughly weary and disgusted with the Court, the Officers of the Crown, the Cause, and even with the tyrannical Bell that dongled me out of my House every Morning.”32
The cases were further continued from time to time until 2 January 1769.33 The trials seem to have proceeded together without objection from any party. Interrogatories had been filed on 13 December, and now the first of many witnesses for the Crown was called.34 For many weeks Auchmuty continued to examine witnesses both in court and in chambers, an Admiralty practice that, like the constant continuances and long delays, offended the common-law practitioners.35 Finally on 16 February the { 183 } respondents' witnesses were examined, and the case was set for argument on Tuesday the 21st. On that date, however, the Crown sought, and was granted, leave to examine additional witnesses “for the whole of this week,” which prompted “A Journal of the Times” to conclude that the respondents' evidence had seriously damaged Sewall's case.36
On the 24th Adams tried to impeach one Joseph Maysel, apparently a key witness for the Crown, by questioning another witness in an effort to prove that Maysel was a fugitive from justice, guilty of a “heinous crime.” The Crown opposed the line of questioning, pointing to the common-law rules that only a witness' general character for truth was admissible as oral testimony, and that a written record of conviction was necessary to establish a specific crime. Adams argued that the civil law, which he said would permit his evidence, should be followed, since this was a Court of Admiralty.37 On 1 March, Auchmuty, in an interlocutory decree, ruled that the question objected to should be withdrawn on the grounds that even under civil-law rules the evidence was inadmissible, but that in any event the common law controlled this matter in a statutory proceeding.38
As far as can be determined, no further sessions of the court were held. Sometime in March the Suffolk County Grand Jury reportedly indicted Maysel for perjury, but, according to “A Journal of the Times,” he was spirited out of the jurisdiction by the Commissioners, and the indictment was not brought to trial.39 Finally, on 25 March 1769 Sewall moved that the informations against Hancock and the other respondents be withdrawn.40 There has never been a satisfactory explanation for the Crown's action, although in the “Journal” the withdrawal was implicitly linked with the reading of Auchmuty's commission as Judge of Admiralty for the new, enlarged district centered at Boston.41 Since Sewall at the same time had been commissioned Judge of Admiralty at Halifax, it has been sug• { 184 } gested that Auchmuty and he, now assured of fixed salaries, were willing to forgo the expected profits from these actions.42 It might just as well have been that Sewall now felt himself sufficiently independent of the Customs Commissioners to withdraw actions which he had instituted only under pressure from them. Neither theory explains why the actions were not dropped when the commissions were actually received in Boston on 20 January.43 It seems more likely that the departure of Maysel and a failure of other evidence were the reasons for the withdrawal.44 It is also possible that the actions were settled in some way, although there is no evidence of such a result. Whatever the fact, the withdrawal probably coincided with the reading of Auchmuty's commission only because the opening of court for that purpose provided a convenient opportunity for Sewall's motion.
The trial of Hancock and the others was an event of major political importance in the colonies. Its very length played into the hands of the revolutionary propagandists. From November 1768 until the following summer, “A Journal of the Times,” which appeared in a variety of colonial newspapers, carried periodic accounts of the proceedings, interspersed with tart comments on the twin themes of the venality of the Customs Commissioners and the arbitrary injustice of the Court of Admiralty.45 These attacks helped to establish the Commissioners as obnoxious at the very beginning of their tenure. Their effectiveness was permanently damaged and they served until the Revolution in an atmosphere of constant hostility.46
The attack on the Admiralty Court was buttressed by a portion of Adams' draft argument in the case, which was widely circulated as part of his Instructions to the Boston Representatives of May 1769.47 These and other responses to the prosecution of revenue cases brought the Vice Admiralty courts under the disapprobation of the colonists. The jurisdiction was more and more invoked only in enforcement of the Acts of Trade, and ordinary civil maritime cases were tried in the common-law courts.48 A multitude { 185 } of revenue cases in each port served to stir up local feeling; Sewall v. Hancock helped to unite this feeling and to produce the single impulse against the courts which increased steadily until its manifestation in the Declaration of Independence.49
Recently it has been argued that the whole affair of the Liberty is proof that the Commissioners were in fact as venal, and the Admiralty Courts as arbitrary, as the colonists contended. Hancock is pictured as the innocent victim of a prosecution carried on by “customs racketeers” bent on “plunder,” who sought to obtain their evil ends in an arbitrary and oppressive mockery of a trial.50
Hancock's innocence is open to question. His reported boasts that he would defy the Commissioners and the rumors that he had done so may be dismissed as the self-serving statements of interested royal officials, but there remains the fact that the Liberty was condemned for unloading cargo before entry.51 Without court files it is difficult to evaluate that decision, but on balance it was probably justified. In the first place, the problem of proof was relatively simple. The issue was only the fact of unloading, not the complicity of Hancock or anyone else. Secondly, Kirk's deposition, which has been attacked as vague and perjured,52 was probably not the only evidence for the Crown. During the eight weeks of trial interrogatories were filed and the court examined several witnesses, presumably including Kirk. In any event, his original deposition, if believed, was persuasive ground for condemnation, regardless of the testimony of Hancock's witnesses, who had the difficult job of proving a negative.53 Even if the deposition could not be corroborated by other testimony, Kirk could have been further examined to ascertain his credibility, and character witnesses could have been called.54
To argue that Auchmuty decided the case against the weight of the { 186 } evidence is to say that he either was wrong in believing the witnesses or was influenced by prejudice. Both are possible, but the presumption is surely the other way. At least as to testimony given in his presence, only Auchmuty could weigh credibility, and there is no actual evidence of prejudice. Moreover, if the condemnation had not been supported by the evidence it is hard to believe that there would not have been some outcry. Not only was none forthcoming, but the few mentions of this phase of the case which are found support the view that the forfeiture was justified.55 A conclusion that the Liberty was justly condemned for unloading before entry does not convict Hancock of smuggling; it does indicate that wine or other goods were smuggled from the Liberty on the night of 9 May. It seems unlikely that Hancock would have been so out of touch with his affairs as not to have been involved.
If the Commissioners were reasonable in believing that Hancock was not innocent, then they were justified in proceeding against him with all the weapons they could command. They had been sent to Boston to implement a new policy of strict enforcement of the Acts of Trade. Hancock led the opposition to the new establishment, both with his political attacks and with the example of his own violation. If the law could be applied strictly to him, others would fall into line. The procedures used to gain this end were harsh, but they were neither extortion nor persecution. All were prescribed by the law which the Commissioners had sworn to uphold, and all were dictated by the position of outright defiance which Hancock had taken.
The forfeiture of the Liberty and the penalties sought in the in personam actions were not “plunder” unless that term is understood to include rewards sanctioned by law. It was common 18th-century practice to divide the proceeds of such suits, a third each to Governor, informer, and Crown. In many situations fees and forfeitures were used to encourage an element of private enterprise which helped to keep salaries low and place the cost of government on those who invoked its powers. In the area of the customs the practice was especially necessary to encourage effective enforcement in the face of firm opposition.56 This system could certainly be abused if { 187 } profit, rather than enforcement, became the sole aim of the officials involved. There was no abuse in the seizure of the Liberty, however. The cause was not a breach of some technical and previously unenforced requirement, but a violation that amounted to the very kind of smuggling which the Commissioners had been sent to root out.57
Nor were the penalties in the in personam proceedings an abuse. The statute under which they were sought had been enacted precisely because forfeitures alone were not sufficient to deter violators.58 The substantial amount asked for here was necessary to make an impression upon a man of Hancock's wealth, power, and obstinacy. Although the figure of one hundred pipes alleged to have been smuggled was doubtless chosen arbitrarily to raise the stakes, there could be no unlawful exaction, because the fines which would have been paid if Sewall had obtained a decree were based upon the quantity and value of the wine smuggled, matters of fact which the Crown had to prove at the trial. The ultimate penalty thus would not have been dictated by the allegations in the information, but would have been computed according to the offense, as authorized by statute.59
The principal result of the high ad damnum was that a high bail was levied. There is some justice to complaints on this point, as the rule at common law in England seems to have been that only the fictitious common bail was required in an action on a penal statute. The figure itself was not excessive, however. Although it might have seemed so in a criminal action, where bail was proportioned to the gravity of the offense, this was a quasicivil proceeding, in which the purpose of bail was to provide security for the amount sued for, rather than merely for the defendant's appearance. In a civil action at law the plaintiff could demand that the sheriff take security in the full amount of the ad damnum, and full bail was required in an in personam civil suit in the English High Court of Admiralty.60 The { 188 } court here was more lenient, requiring bail for only one third of the amount sought.
The procedure followed in the in personam actions was unusual and, no doubt, tended to Hancock's disadvantage, but it was not persecution invented arbitrarily by the Commissioners for political revenge or financial gain. The statute provided the choice of proceeding at common law or in Admiralty, because it was a truism that no jury could be found to convict for violation of the Acts of Trade.61 After the recent failure to indict the Liberty rioters, the Commissioners can hardly be blamed for accepting truism as truth and exercising the option to proceed in Admiralty. Since the trial was in Admiralty, it was by information, not indictment;62 it was before a judge sitting without a jury; and the whole range of civil law procedure followed in the High Court of Admiralty in England was invoked—interrogatories, irregular sessions, secret examination of witnesses, and the rest.63 Whether these procedures were “illegal” depended not on their inherent qualities but upon the power of Parliament to place violations of the statute within the Admiralty jurisdiction. There was much dispute on this point, and it is not surprising that the Commissioners upheld the parliamentary side of a constitutional question which was resolved only by the Revolution.64
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Hindsight suggests that wiser administrators than the Commissioners might have sought to gain compliance through friendship and understanding rather than in an outright confrontation which they were bound to lose. A different course could have slowed or even prevented what became a headlong rush toward American independence. The British policy in accordance with which the Commissioners acted was based upon an unrealistic appraisal of the proper role of the colonies, which the colonial constitutional arguments were intended to correct. To recognize the justice of the colonial position, however, is not to say that the actions of the Commissioners were immoral or illegal. Hancock had defied authority. As representatives of that authority they were duty-bound to react to his defiance. Their reaction was not the only possible one, but it was a proper, if ultimately ineffective, course.
The document printed below from Adams' Admiralty Book concerns only the in personam action against Hancock. It consists of a copy in Adams' hand of the information and statutes involved, followed by a draft of his argument in Hancock's behalf. In this argument Adams approached the case as presenting a problem in statutory construction. Conceding that wine had been landed from the Liberty without payment of duties, he first argued that Hancock could not be said to fall within the statutory description of one “assisting or otherwise concerned” unless his knowing complicity in the unloading could be directly proven. Sewall must have been equally aware that Hancock's liability turned on the question of his knowledge and participation. Only this could account for the flood of friends, relations, employees, and business associates who were called as Crown witnesses, doubtless to be interrogated on possible links between Hancock and the nocturnal activities of the late Captain Marshall. Sewall's decision to abandon the action may well have turned on his inability to produce evidence of this vital element in his case.
Adams' basic argument was supported by a plea that the act be strictly { 190 } construed in Hancock's favor. Presumably this meant that “assisting or otherwise concerned” should not be expanded to include any kind of constructive or circumstantial implication of Hancock in the unloading. There was, of course, a familiar canon of construction that penal acts were to be construed narrowly,65 but Adams' argument was unusual in the reasons which he assigned for calling this statute penal. Not only was there an obvious disproportion between offense and penalty, but there were two grave constitutional defects in the act: (1) Adams' “Clyent Mr. Hancock never consented to it,” through his own vote or that of his actual representative; (2) its penalties were to be recovered in Admiralty courts, which deprived Hancock of the right to trial by jury, a defect all the more grievous because comparable offenses in England were to be tried to a jury in the Exchequer.
Here, like Otis in the famous argument on writs of assistance (No. 44), Adams attacked a statute as an intrusion upon fundamental rights. Unlike Otis, Adams did not make this invasion the basis for a demand that the court repudiate the statute altogether. Bonham's Case, upon which Otis grounded his argument that “the Executive Courts must pass such Acts into disuse,” held only that a statute should be construed to avoid a result in conflict with common-law principles.66 Adams' position neatly tied his broad political and constitutional arguments in with a similar narrow theory of construction: a penal statute conflicting with basic principles should be construed in every instance in favor of the subject.
In the light of later theorizing on the question whether Otis had foreshadowed the doctrine of judicial review,67 it is interesting that Adams' argument was so much more in accord with traditional English legal theories. Perhaps he had not understood Otis to have gone beyond those theories; or, if Otis had gone farther, Adams might now have come to realize that this was not a correct statement of the law. Otis' appeal to Bonham's Case could be rationalized in a narrow view, because he was urging invalidity in the application of a statute; the statute here, if void, was void on its face, a much more drastic flaw. Whatever the force of these considerations, Adams undoubtedly felt the need to ask for relief in terms acceptable to the judge trying the case. Auchmuty could hardly be persuaded as a loyal servant of the Crown that the act was void, but he might be convinced that in the circumstances it should not be applied harshly to Hancock.68 The structure of the argument may also be explained by an intention on Adams' part to make political use of the draft—a possibility discussed more fully below.
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The remainder of the draft deals with the question of the application of the civil law. Although Auchmuty had held that common-law rules governed the questioning of an impeaching witness, that opinion was based on alternative grounds and could have been limited to the issue there raised. Adams here argued for the civil-law approach on a broader front, buttressing his position with an array of citations from the Digest and other appropriate authorities. Conviction must be on the evidence of two or more witnesses whose credibility the court must establish. If oral testimony of Maysel's criminal record was not admissible on the question of credibility, his present condition, as well as his own testimony as to his past should be taken into account. The civil law also supported Adams' previous contention that harsh laws should be construed strictly, especially in criminal cases. The draft ends with the unexpected insertion of a summary of the earlier arguments and decree on the impeachment question. In this material was the crux: If the court was to apply some common-law rules, it should apply all, including the jury. If it was to follow the civil law in matters such as interrogatories, it should not omit those civil-law rules which favored Hancock.
Adams may have delivered this argument in open court, but no direct evidence of such a dramatic event has been found, and there is reason to believe that it never occurred. As already noted, argument on the merits had been set for 21 February but was postponed until after 1 March by the Crown's call for further witnesses and the subsequent controversy over the impeachment of Maysel. In all probability Maysel's indictment and disappearance led to further postponements, so that there was no occasion to hold argument prior to the withdrawal of the actions on 25 March.69 In any event, “A Journal of the Times,” which faithfully recorded these and other stages of Hancock's trial, made no mention of an argument. If Adams had addressed the court in the eloquent and politically provocative terms of his draft, it seems likely that the “Journal” would have reported it, perhaps embellishing the account with passages supplied by Adams from his own text.
The state of the manuscript is ambiguous on this point. The draft contains textual errors of a sort suggesting that at least the portions of it dealing with the constitutional issues were copied from an earlier, rougher draft.70 At the same time, the less organized and less careful manner in which the extracts from civil-law sources were entered, the sudden insertion of the impeachment materials, and the lack of a formal conclusion on the civil-law issues indicate that this is not a final draft. If there had been an argument on the merits, the draft could be either a copy or expansion of the text from which Adams argued, or it could be an intermediate state from which he prepared a now missing final version for presentation to the court.
In view of the likelihood that there was no argument on the merits, { 192 } another explanation is called for. Adams may well have prepared an argument on the constitutional points for presentation on 21 February, and copied the first part of the present draft from it into his Admiralty Book, perhaps in expanded form. Possibly inspired by the issues raised in the impeachment argument, he doubtless added the civil-law extracts during the latter part of February or early in March. Then, “disregarding order,” he inserted the material on “the Controversy We had last Week.”—that is, the impeachment71—some time after Auchmuty's 1 March decree. His failure to complete the draft may be ascribed to the fact that at some point in March he learned that it would not be needed in court.
Whether or not the argument was ever presented, there are many indications that Adams intended his draft to serve a purpose beyond mere advocacy in court. “A Journal of the Times” twice promised a full account of Sewall v. Hancock, although none ever appeared.72 Adams had earlier turned law reporting to partisan advantage with his “Abstract” of the argument on the writs of assistance (No. 44, Document II), and he now had before him a recent example of this technique in the pamphlet attack which Henry Laurens of Charleston had launched upon the activities of the South Carolina Vice Admiralty Court.73 Adams may have intended to use his draft as the basis for a similar pamphlet, which would fulfill the “Journal's” promises, graphically demonstrating Boston's grievances and presenting the Town's legal position in its quarrel with the Customs Commissioners and the Admiralty Court.
Whether termination of the trial, the press of other business, or another reason caused Adams to leave his draft unfinished, a gap of ten pages before the next entry in the Admiralty Book (Rex v. Corbet,No. 56, tried in May and June 1769) suggests that he intended to return to it. The work that he had done did not go to waste, whatever his intentions. As previously noted, he used his arguments on the right to jury trial almost verbatim in his Instructions to the Boston Representatives in May 1769. This document was carried in the newspapers as well as in “A Journal of the Times,” and so played a political role. The passage on impeachment was similarly adapted for the “Journal.”74
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If these partisan uses of portions of the draft suggest that it was as much a political as a legal document, its content provides firm ground to support such a theory. In the first place, both Adams' use of court documents with appended comments and the general tone of his arguments indicate a desire to emulate Laurens' South Carolina pamphlet.75 More important, Adams' draft stands in its own right as skilled political writing.
The language and style of his political and constitutional arguments, which might have impressed a jury but would have been wasted on a hostile judge, suggest the intention to reach a wider audience. In fact, the portion on Magna Carta, later used in the May 1769 Instructions, shows great similarity to a passage in Adams' “Clarendon Letters” of 1766, attacking the Stamp Act.76 His juxtaposition of broad constitutional positions with a plea for strict construction gives rise to an irony more appropriate in political writing than in legal argument. To call a statute merely “penal” when it has been enacted by an improperly constituted legislature and invades a basic constitutional right is the kind of understatement which implies a more drastic conclusion: The statute is invalid and the political system which produced it must be changed. Even the civil-law argument seems calculated less for legal advantage than as a means of emphasizing the deprivation of jury trial and the unfair manipulation of the law in the Admiralty court.77 The case was to be tried on the facts; these arguments were for the world.
Adams' “Abstract” of the writs of assistance argument was the transformation of a legal argument into a political tract. His argument in Sewall v. Hancock is a much more subtle and accomplished piece of craftsmanship. Here, political theory is manipulated within a legal framework in such a way that the case is presented both at the level of the court room and at the level of the public forum in which broader constitutional issues are discussed. Whatever the purpose for which it was written, the argument deserves recognition as an unfinished contribution to the political literature of its time.
1. See W. T. Baxter, The House of Hancock 260–263 (Cambridge, Mass., 1945). For one customs officer's view of the situation, see Joseph Harrison to the Marquis of Rockingham, 17 June 1768, in Watson, “Joseph Harrison and the Liberty Incident,” 20 WMQ (3d ser.) 585, 587–589 (1963).
2. See deposition of Owen Richards and Robert Jackson, 11 April 1768, PRO, Treas. 1:465, fols. 351–353; Ubbelohde, Vice Admiralty Courts 119–121. Richards was to suffer more violent physical opposition to his role. See Richards v. Doble, Pleadings Book, Form VI.
3. See the Memorial of the Commissioners, 12 May 1768, enclosing the depositions of Richards and Jackson, note 2 above; the opinion of Samuel Fitch, Solicitor to the Commissioners, in favor of prosecution; and the opinion of Sewall, PRO, Treas. 1:465, fols. 348–360. Sewall's opinion, 23 April 1768, is reprinted in Dickerson, “Opinion of Attorney General Sewall of Massachusetts in the Case of the Lydia,” 4 WMQ (3d ser.) 499, 501–504 (1947). Thomas Hutchinson also questioned the wisdom of prosecution in the matter. See Hutchinson to ——, 17 April 1768, 26 Mass. Arch. 299–300. In Oct. the Commissioners again ordered Hancock's prosecution in the Superior Court, but no record of any action has been found. Minutes of the American Board of Customs Commissioners, 20 Oct. 1768, 7 Bowdoin-Temple MSS 167, MHi.
4. The duty had been levied since 1764. See note 986 below.
5. The arrival and entry of the Liberty and Hancock's boasts are described in Opinion of William DeGrey, 25 July 1768, PRO, Treas. 1:463, fol. 85, printed in Wolkins, “The Seizure of John Hancock's Sloop 'Liberty,'” 55 MHS, Procs. 239, 273 (1921–1922); Thomas Hutchinson to Richard Jackson, 16 June 1768, 26 Mass. Arch. 310–312, printed in 55 MHS, Procs. 281; Examination of Benjamin Hallowell, Treasury Chambers, 21 July 1768, American Gazette (No. 6) 449 (London, 2d edn., 1770); Testimony of Joseph Harrison, 27 June 1770, 5 Acts, Privy Council (Col.) 254; see also Baxter, Hancock 263 note.
6. Deposition of Thomas Kirk, 10 June 1768, PRO, Treas. 1:465, fol. 72; Opinion of William DeGrey, 55 MHS, Procs. 273–274. Marshall, one of Hancock's captains, died on 10 May, allegedly from overexertion in the unloading. Boston Gazette, 16 May 1768, p. 3, col. 1. See Andrew Oliver to Francis Bernard, 3 Dec. 1769, 12 Bernard Papers 164, MH; Oliver, Origin and Progress 69.
7. For the decision to seize the vessel and seek aid from the Romney, see Minutes of the Commissioners, 13 June 1768, PRO, Treas. 1:465, fol. 67; letter of Harrison and Hallowell to Commissioners, 11 June 1768, id. at fol. 88; letter of Harrison to John Powell, 13 June 1768, 3 Chalmers New England MSS 2, MH; Harrison to Rockingham, 17 June 1768, 20 WMQ 3d ser.) 589–590 (1963); Examination of Hallowell, 21 July 1768, American Gazette (No. 6) 449; Testimony of Harrison, 27 June 1770, 5 Acts, Privy Council (Col.) 255. For the requests of the Commissioners for naval support and the arrival of the Romney, see Samuel Venner (Secretary of the Board) to Thomas Bradshaw, 3 June 1768, PRO, Treas. 1:465, fol. 149; Boston Gazette, 23 May 1768, p. 3, col. 1; Wolkins, “Liberty,” 55 MHS, Procs. 239, 246 note, 248, 271–272.
8. As to the lading, see Boston News-Letter, 16 June 1768, p. 2, col. 1; Boston Evening-Post, 20 June 1768, p. 2, col. 1. Sunset was at 7:33 p.m. and high tide at 7:38 p.m. on 10 June. John Mein and John Fleeming, Register . . . 1768 18 (Boston, 1768). The accounts in note 9 below vary as to the time of the seizure according to the politics of the declarant. In question was a mistaken understanding that the limitation in the writ of assistance to daylight activities applied to seizures. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 138 note; Boston Gazette, Supp., 23 Jan. 1769, p. 1, col. 3. Actually no writ was necessary to board, search, and seize a vessel. See 13 & 14 Car. 2, c. 11, §§4, 5 (1662); 7 & 8 Will. 3, c. 22, §6 (1696). The time was doubtless dictated in part by a delay in making the decision to seize, and in part by a desire to catch the tide. See Harrison to Powell, 13 June 1768, 3 Chalmers New England MSS 2, MH.
9. See the following accounts of the seizure: Boston News-Letter, 16 June 1768, p. 2, col. 1; Deposition of Harrison, 11 June 1768, PRO, Treas. 1:465, fol. 74; Deposition of Hallowell, 11 June 1768, id. at fol. 76; Harrison to Rockingham, 17 June 1768, 20 WMQ (3d ser.) 590 (1963); Testimony of Harrison, 27 June 1770, 5 Acts, Privy Council (Col.) 255; Affidavits accompanying Boston, “A Letter from Boston to a Gentleman in London,” American Gazette (No. 2) 97–110 (London, 2d edn., 1768). As to Malcom, see Wolkins, “Daniel Malcom and Writs of Assistance,” 58 MHS, Procs. 14–15 (1924–1925).
10. For the riot, see sources cited in note 9 above.
11. Harrison to Rockingham, 17 June 1768, 20 WMQ (3d ser.) 592 (1963); Examination of Hallowell, 21 July 1768, American Gazette (No. 6) 450; Minutes of the Commissioners and other materials, 12–14 June 1768, PRO, Treas. 1:465, fol. 67–107; Testimony of Hallowell, 26 June 1770, 5 Acts, Privy Council (Col.) 250. For the negotiations and an account of events in Boston generally, see John Gary, Joseph Warren 74–79 (Urbana, III., 1961). The flight to the Romney marked John Temple's open break with the rest of the Board. Thereafter he participated in their routine activities, but opposed them on all political matters. See Barrow, Colonial Customs 480–487. All subsequent references to “the Board” or “the Commissioners” refer to the four-man majority, exclusive of Temple.
12. PRO, Treas. 1:465, fols. 70–71, 92–93, 112–113; 16 Boston Record Commissioners, Reports 253–259 (Boston, 1886). The Instructions, of which JA claimed the authorship and which were adopted by the Town on 17 June, were first printed in the Boston Gazette, 20 June, and reprinted in 3 JA, Works 501–504. See 3 JA, Diary and Autobiography291; Gary, Joseph Warren 77–78.
13. See sources cited, note 11 above. On 15 June Hancock's warehouse was burgled and his papers “displaced.” Massachusetts Gazette, 16 June 1768, p. 1, col. 1. This may have been an effort on the part of the Commissioners to find evidence linking him with the Liberty's alleged cargo. See Dickerson, Navigation Acts 243.
14. See Commissioners to Governor Bernard, 12 June 1768, PRO, Treas. 1:465, fols. 86–87; 13 June 1768, id. at fols. 100–101; Bernard to Commissioners, 13 June 1768, id. at fol. 102; Collector and Comptroller to Commissioners, 14 June 1768, id. at fols. 106–107; Commissioners to Commodore Hood, General Gage, Col. Dalrymple, 15 June 1768, id. at fols. 108–111. The troops were requested in July; two regiments arrived in Boston at the end of Sept., and two in early November. It was not until the second week of Nov. that the Commissioners felt sufficiently sure of their safety to venture back to Boston. Commissioners to Treasury, 11 July 1768, PRO, Treas. 1:465, fol. 420; Venner to Bradshaw, 26 Nov. 1768, id. at fols. 127–138; Massachusetts Gazette, 10 Nov. 1768, p. 1, col. 3; Rowe, Letters and Diary 175–176. It is possible that they were awaiting the public reaction to the in personam suits against Hancock and the others, in which process was served on 3 November. See note 30 below.
15. Joseph Harrison Esq. v. The Sloop Liberty, 20 Barrels of Tar, 200 Barrels of Oil, Vice Adm. Min. Bk., 22 June 1768. See Boston News-Letter, 23 June 1768, p. 2, col. 1. Samuel Fitch was also of counsel for the Crown, and David Lisle, solicitor to the Commissioners, assisted in the preparation for trial. Minutes of the Commissioners, 8 Aug. 1768, PRO, Treas. 1:471, fol. 7.
16. 15 Car. 2, c. 7, §8 (1663), set out in No. 48, note 210. See Opinion of William DeGrey, PRO, Treas. 1:463, fol. 87, printed in 55 MHS, Procs. 276. The violation of a statutory requirement that entry be made before unlading was the only possible basis for proceeding against the Liberty on the alleged smuggling. The statutes levying penalties for landing goods without payment of duties provided for the forfeiture of the goods alone (6 Geo. 2, c. 13, §3, made applicable by 4 Geo. 3, c. 15, §5), or for pecuniary penalties against the smugglers themselves (4 Geo. 3, c. 15, §37). For proceedings under the former, see No. 47; the latter was the basis of the later in personam proceedings against Hancock; see notes 26, 582, below. A suit based on 6 Geo. 2, c. 13, was presumably impossible, the wines having been dispersed. 4 Geo. 3, c. 15, presented evidentiary problems, as subsequent events demonstrated. See text at note 44 below. Moreover, under both acts proof had to be made that dutiable goods had been landed, whereas under 15 Car. 2, c. 7, §8, only the landing before entry need be shown. The statute I Eliz. 1, c. 11, §2 (1558), forbidding landing of goods except in the daylight would also have been ineffective, since it provided for seizure of goods, not vessel. See No. 49, notes 10–1314–17.
17. Vessel and goods were forfeit if either enumerated or nonenumerated goods were loaded before bond was given. 12 Car. 2, c. 18, §19 (1660); 22 & 23 Car. 2, c. 26, §11 (1670); 6 Geo. 3, c. 52, §30 (1766). Tar was enumerated and oil was not. 3 & 4 Anne, c. 10, §8 (1704); Samuel Baldwin, A Survey of the British Customs, pt. 2, p. 201 (London, 1770).
18. 4 Geo. 3, c. 15, §29 (1764).
19. At the end of April. Elizabeth Smith to Isaac Smith Jr., 13–18 April 1768, 1 Adams Family Correspondence 63–66.
20. See Harrison v. The Liberty, et al., Vice Adm. Min. Bk., 22 June 1768. The date and substance of the decree are known only from a contemporary newspaper report that “Wednesday the 17th the Hon. Robert Auchmuty Esq. Judge of Admiralty for this province, decreed the sloop Liberty, seized the 10th of June last, to be forfeited; but the 200 barrels oil, and six barrels tar, which were on board her when seized, were cleared.” Boston Chronicle, 22 Aug. 1768, p. 331, col. 3; Boston Post-Boy, 22 Aug. 1768, p. 1, col. 3. This result is confirmed by the order of sale, dated 31 Aug. 1768, which dealt with the vessel alone. Massachusetts Gazette, 1 Sept. 1768, p. 1, col. 2. Sewall's conduct of the cause, although successful, was not vigorous enough to suit the Commissioners. They found that he had been dragging his feet because he had been informed by Samuel Venner, their secretary, that they had criticized his conduct in the matter of the Lydia to the Treasury. This episode apparently had something to do with the delay in prosecuting Hancock in personam and may even have affected the outcome of that suit. See notes 2728, 42, below. Although Sewall remained in favor, Venner was finally suspended by the Board. See Minutes of Commissioners, 8 Aug. 1768, PRO, Treas. 1:471, fols. 7–8. Other materials are in id. at fols. 1–88, 303–312, 435–436, 492–502. See also Clark, “American Board of Customs,” 45 AHR 791 note; Dickerson, “John Hancock,” 32 MVHR 517, 532–534 (1946).
21. It has been argued that the Liberty was seized and condemned solely for having loaded oil and tar without bond or permit, a technical offense against a requirement that had not previously been enforced in Boston. The loading is said to have been made the basis for the suit, because it provided ground for condemnation more readily provable than unloading before entry, and at the same time allowed the customs officers and Governor Bernard to take the proceeds of the cargo as well as of the vessel. Dickerson, Navigation Acts 237–238. See also Lovejoy, “Rights Imply Equality: The Case against Admiralty Jurisdiction in America, 1764–1776,” 16 WMQ (3d ser.) 459, 478 (1959); Ubbelohde, Vice Admiralty Courts 121–122. This view was followed in 3 JA, Diary and Autobiography 306 note. The files of the Vice Admiralty Court are lost, but secondary materials support the contrary position on several grounds: (1) There is complete unanimity in the contemporary accounts of the various royal officials concerned that Kirk's deposition of 10 June as to the unloading and the opinion of the Board's solicitor thereon provided the immediate impetus for the seizure. See materials cited in notes 7, 9, above; also, Commissioners' Minutes, 8 Aug. 1768, PRO, Treas. 1:471, fols. 7, 8; Bernard to Lord Hillsborough, 11 June 1768, 6 Bernard Papers 311, MH; Hutchinson to Richard Jackson, 16 June 1768, 55 MHS, Procs. 281. The case was presented to Attorney General DeGrey for his opinion on this basis. Opinion of William DeGrey, 25 July 1768, 55 MHS, Procs. 273–276. (2) The only accounts which mention the failure to secure bond or permit indicate that this was an alternative ground for the seizure. Boston News-Letter, 16 June 1768, p. 2, col. 1; 3 Hutchinson, Massachusetts Bay, ed. Mayo, 137 (The latter states expressly that the vessel was seized for false entry, and the goods for lack of a permit). (3) Dickerson's argument that the use of a writ of assistance to search the Liberty shows that her present cargo, rather than her past misdeeds, was the basis for the seizure, seems to be based on a misreading of Hutchinson's account of the question raised by the fact that the seizure was at sunset. See note 8 above. No contemporary account mentions a writ of assistance. (4) If the suit had been based only on loading without bond or permit, the oil and tar would certainly have been condemned with the vessel. The release of the goods (note 20 above) indicates that there was no violation of the bond and sufferance provisions at all. See also Hutchinson to——, ca. 3 Nov. 1768, 26 Mass. Arch. 324–325. (5) In all the furor which the Town of Boston produced in print as a result of the seizure and its aftermath, there is not a single complaint that the cause of seizure was the technical, and therefore unjust, one of loading without bond or permit. Boston's position was that the employment of the Romney, already despised for the impressment activities of her captain, brought on the riot of 10 June; this was the basis of all subsequent complaints. See Instructions to Boston Representatives, 17 June 1768, 16 Boston Record Commissioners, Reports 258; “A Letter from Boston to a Gentleman in London,” 15 June 1768, American Gazette (No. 2) 97–110; An Appeal to the World, or a Vindication of the Town of Boston 14–17 (London, 1770); Letters to the Right Honorable the Earl of Hillsborough from Governor Bernard, General Gage, and the Honorable His Majesty's Council 44 (London, 1770); Observations on Several Acts of Parliament 19 note (Boston, 1769). See also Gary, Joseph Warren 75–76. (6) One contemporary account favorable to Boston states that the seizure and condemnation of the Liberty were “for a non-entry of a part of her cargo of Madeiria wines.” “A Journal of the Times,” 3 Nov. 1768, in Dickerson, Boston under Military Rule 18. An early historian of the Revolution, who had access both to documents and personal accounts in Boston, states that the seizure was for a false entry. 1 Gordon, History of Independence 231.
22. On the sale, see Massachusetts Gazette, 1 Sept. 1768, p. 1, col. 2; Boston Evening-Post, 12 Sept. 1768, p. 3, col. 1. Governor Bernard received his third on 9 Nov. 1768. Vice Adm. Min. Bk., 22 June 1768. The Liberty sold for £102 15s. 1/2d; the expense of fitting her out as a cutter was £813 18s. 9d. Commissioners to Treasury, 28 July 1769, quoted in Wolkins, “Liberty,” 55 MHS, Procs. 261 note 3. Full details regarding her destruction may be found in PRO, Treas. 1:471, fols. 200–225, 289–292, 371–385. See also Boston Gazette, 24 July 1769, p. 2, col. 3; Quincy, Reports (Appendix) 456–457; Wolkins, “Liberty,” 55 MHS, Procs. 261 note. Baxter is incorrect in identifying the Liberty with the Gaspee, destroyed below Providence in June 1772. Baxter, Hancock 268. See Edward Channing, A History of the United States, 3:125 (N.Y. 1912).
23. See Bernard to Hillsborough, 9 Sept. 1768, 7 Bernard Papers 26, 27, MH. The venire for the Aug. term of the Superior Court in Suffolk County includes Daniel Malcom among the Grand Jurors from Boston. SF 101222.
24. Minutes of the Commissioners, 2 Sept. 1768, 7 Bowdoin-Temple MSS 166, MHi.
25. Opinion of William DeGrey, 55 MHS, Procs. 273–276. The memorial of the Commissioners, which with its enclosures, is found in PRO, Treas. 1:465, fols. 67–121, was carried to England by Benjamin Hallowell, who presented the case personally to the Treasury. See Examination of Benjamin Hallowell, 21 July 1768, American Gazette (No. 6) 450; Dickerson, Navigation Acts 241, 261 note; Wolkins, “Liberty,” 55 MHS, Procs. 260. DeGrey's opinion could not have reached Massachusetts in time to affect the in rem proceeding, but it was undoubtedly the basis for the in personam actions. See Hillsborough to Bernard, 13 Aug. 1768, 11 Bernard Papers 285, MH.
26. Vice Adm. Min. Bk., 29 Oct. 1768. See “A Journal of the Times,” 31 Oct. 1768, Dickerson, Boston under Military Rule 16. The other respondents were John Matchet, William Bowes, and Lewis Gray. Vice Adm. Min. Bk., 29 Oct. 1768. The citation against Barnard was not served, no doubt because he had gone to sea. Id., 21 Nov. 1768. He was lost on a voyage from Madeira in June 1769. A. Oliver to F. Bernard, 3 Dec. 1769, 12 Bernard Papers 164, MH; Boston Gazette, 17 July 1769, p. 3 col. 2. On 29 Oct. Sewall also brought actions against Malcom and three others for unloading wines from the schooner Friendship in Feb., after Malcom had unsuccessfully sought a reduction in duties from the customs. In these informations £2400 was sought from each respondent and bail was set at £800. Vice Adm. Min. Bk., 29 Oct. 1768; Observations on Several Acts of Parliament 19 note (Boston, 1769); Minutes of Commissioners, 10 Oct. 1768, 7 Bowdoin-Temple MSS 167, MHi; Bernard to Shelburne, 21 March 1768, 6 Bernard Papers 289–290, MH. These suits were dismissed with Hancock's on 25 March 1769. See note 40 below. The Friendship was seized on 31 Oct. and adjudged forfeit in March. Trail v. The Friendship,Vice Adm. Min. Bk., 18 Nov. 1768; Massachusetts Gazette, 24 Nov. 1768, p. 2, col. 1.
27. So General Gage suggested. Gage to Hillsborough, 5 March 1769, quoted in Dickerson, Navigation Acts 262 note. The delay may also be related to the Sewall-Venner affair, note 20 above. Sewall had refused to reveal Venner's name to the Commissioners. Apparently with Sewall's tacit consent, Hutchinson told the Commissioners that Venner was the informant in a letter dated 29 Oct. 1768. PRO, Treas. 1:471, fol. 43; see Hutchinson to Commissioners, 3 Jan. 1769, id. at fol. 81. The delays both in the suits and in revealing Venner may have been occasioned by Sewall's reluctance to proceed until he had some kind of assurance of the Commissioners' support.
28. See 4 Geo. 3, c. 15, §§37, 41, 42 (1764), quoted, text at notes 582, 1693, 1996, below. In England the Attorney General would proceed for penalties owed the Crown, but where forfeitures were divided between informer and Crown, the usual form was the qui tam action brought by the informer for himself and other parties. See 3 Blackstone, Commentaries *160, 261–262; 4 id. at *303–304. The form of the information shows that Sewall was proceeding in the latter capacity. See note 380 below. It has been suggested that retainers of £72 each paid to Sewall and Fitch in Oct. and Feb. for “sundry causes” disguise a single large fee necessary to get them to take on Hancock's case. Dickerson, Navigation Acts 263 note. The suggestion is refuted by the fact that on the docket of the Vice Admiralty Court at this period were seven forfeiture actions pending, as well as three penal suits. Vice Adm. Min. Bk., Oct. 1768—Feb. 1769. See, for example, No. 47, No. 48, No. 49. See also note 26 above.
29. The information and order are set out in text at notes 2–579–82 below.
30. “A Journal of the Times,” 3 Nov. 1768, Dickerson, Boston under Military Rule 18. The account of the trial which follows is largely based on this source. Political bias casts doubt on the “Journal's” treatment of events, but its dating is probably accurate and is corroborated by what little other information there is.
31. “A Journal of the Times,” 7 Nov. 1768, Dickerson, Boston under Military Rule 19.
32. 3 JA, Diary and Autobiography306. The sheer length of the proceeding was a source of contemporary complaint also. See note 35 below; JA's Instructions to the Boston Representatives, 14 May 1769, 3 JA Works 509. In his Autobiography JA wrongly dated the suit as beginning in 1773 and being “suspended at last only by the Battle of Lexington.” 3 JA, Diary and Autobiography305–306. He also stated that the action against Hancock was “upon a great Number of Libells for Penalties, upon Acts of Parliament, amounting to Ninety or an hundred thousand Pounds Sterling.” Id. at 306. Either JA here added a zero to the sum involved, or else he meant that Hancock had undertaken to make good any liability imposed upon the other respondents. Hancock's account with JA, beginning in March 1769 and receipted 21 Dec. 1771, contains the following statement in JA's hand, but lined out, which probably refers to his fees in this case: “The Affair in the Admiralty is omitted for the Present, Mr. Price [Deputy Register of the Vice Admiralty Court] has promised to give me the Particulars Tomorrow. I had much rather leave that to Mr. Hancocks Pleasure, but if he chooses to have me make an Account of it I will do it tomorrow.”
33. “A Journal of the Times,” 28 Nov., 5 Dec., 14 Dec., 1768, Dickerson, Boston under Military Rule 28–34.
34. “A Journal of the Times,” 14 Dec. 1768, 2 Jan. 1769, Dickerson, Boston under Military Rule 34, 43. Further interrogatories were filed on 7 Jan. Id. at 46.
35. See the entries in “A Journal of the Times” for 5 Jan., 7 Jan., 23 Jan., 28 Jan., 30 Jan., 11 Feb. 1769, Dickerson, Boston under Military Rule 44–64. Critical comments on the practice of the Admiralty Court are appended to these entries. See id. at 43 (number of witnesses); id. at 46 (Star Chamber method of interrogation and exercise of jurisdiction on land); id. at 54 (examination in chambers); id. at 56 (powers and perquisites of the judge); id. at 57 (length of trial); id. at 64 (length of trial). JA may have supplied some or all of these comments. See note 74 below.
36. “A Journal of the Times,” 17, 18, 23 Feb. 1769, Dickerson, Boston under Military Rule 66–67.
37. “A Journal of the Times,” 24 Feb. 1769, Dickerson, Boston under Military Rule 68, quoted, note 49126 below. The “Journal” here paraphrased a portion of JA's argument. See note 74 below.
38. “A Court of Admiralty relative to Mr. Hancock's libels, sat yesterday.—It is said the judge has given his decree upon the question mentioned in our last Journal [i.e. 24 Feb., note 37 above].” “A Journal of the Times,” 2 March 1769, Dickerson, Boston under Military Rule 72. See JA's copy of the decree and comments on it, text at notes 50–57127–134 below.
39. “A Journal of the Times,” 27 March, 22 April 1769, Dickerson, Boston under Military Rule 84, 92. No copy of the indictment or record of trial has been found in the Suffolk Files.
40. “The Advocate General prays leave to retract this information and says Our Sovereign Lord the King will prosecute no further hereon. Allowed.” Vice Adm. Min. Bk., 25 March 1769.
41. “A Journal of the Times,” 26 March 1769, Dickerson, Boston under Military Rule 83. Vice Adm. Min. Bk., 25 March 1769.
42. Lovejoy, “Rights Imply Equality,” 16 WMQ (3d ser.) 459, 481–482. See also Dickerson, Navigation Acts 245–246. These authorities also suggest that the impending recall of Bernard and the Treasury's disapproval of the activities of the Customs Commissioners led to the withdrawal. The evidence on this point is at present inadequate. The new judges were created pursuant to a statute providing for superior Admiralty courts of both original and appellate jurisdiction to sit in the colonies. 8 Geo. 3, c. 22 (1767). The salaries were fixed at £600 to be paid out of the King's share of fines and forfeitures, or from the sale of old naval stores in England if the former was insufficient. Ubbelohde, Vice Admiralty Courts 133.
43. “A Journal of the Times,” 20 Jan. 1769, Dickerson, Boston under Military Rule 53. News of the commissions was received in Boston on 29 Nov. 1768. Id. at 28.
44. One contemporary historian found lack of evidence to be the reason. 1 Gordon, History of Independence 240–241.
45. See notes 30–41 above.
46. See Barrow, Colonial Customs 487–511; Clark, “American Board of Customs,” 45 AHR 787–790.
47. See note 1693 below; text at note 74 below.
48. See Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” 6 Am. Jour. Legal Hist. 250, 360–364, 367 (1962); p. 102–104, notes 17, 22, 24, above.
49. The Declaration spoke out against judges independent of colonial legislatures, as well as against trial without jury. For a summary of the much more detailed attacks between 1769 and 1774, see Ubbelohde, Vice Admiralty Courts 142–147, 189–190.
50. Dickerson, Navigation Acts 231–246; see also Lovejoy, “Rights Imply Equality,” 16 WMQ (3d ser.) 459, 478–482.
51. See note 21 above.
53. Opinion of William DeGrey, 25 July 1768, 55 MHS, Procs. 273–276. As to the problem of weighing evidence, see Gilbert, Evidence 150, 157–158.
54. The location of the burden of proof depends on the statute, 4 Geo. 3, c. 15, §45 (1764), providing that “if any ship or goods shall be seized for any cause of forfeiture, and any dispute shall arise whether the customs and duties for such goods have been paid, or the same have been lawfully imported or exported, or concerning the growth, product, or manufacture of such goods, or the place from whence such goods were brought, then and in such cases, the proof thereof shall lie upon the owner or claimer of such ship or goods.” Assuming that goods landed before entry were not “lawfully imported” within this statute, Hancock bore the burden. He thus could have failed either because his evidence was insufficient on its face, or because Kirk's testimony outweighed it.
55. JA in his argument, text following note 986 below, conceded that the wines were smuggled, although this may have been a recognition either of the principle of res judicata, or of the practical futility of rearguing this point before the same court. See also the language of his Autobiography, admittedly many years later, that “a great Uproar was raised in Boston, on Account of the Unlading in the Night of a Cargo of Wines from the Sloop Liberty from Madeira, belonging to Mr. Hancock, without paying the Customs.” 3 JA, Diary and Autobiography305–306. See also Gordon, 1 History of Independence 231, 240–241. Some of the colonial writings which might have raised an objection, but did not, are cited in note 21 above.
56. This system had been incorporated in all of the Acts of Trade from the beginning. See, for example, 12 Car. 2, c. 18, §§1, 3 (1660); 4 Geo. 3, c. 15, §42 (1764). See also Hoon, English Customs 275–276, 285–289. In England it had been standard practice in a variety of situations since the 15th century. See 9 Holdsworth, History of English Law 240. One of the earliest of such statutes provided that a customs officer who embezzled duties should be liable for treble the value of the goods, with a third to the informer who sued. 3 Hen. 6, c. 3 (1424). The process was commonly followed in Massachusetts penal acts. See, for example, Act of 26 Feb. 1768, 4 A&R 983 (All penalties and forfeitures for breach of Province customs laws to be paid one-half to Province and one-half to informer).
57. See note 21 above.
58. 4 Geo. 3, c. 15, §37 (1764), text at note 582 below. See Barrow, Colonial Customs 323, 473–474. For use of penalties in England, see Hoon, English Customs 288–289.
59. See 2 Hawkins, Pleas of the Crown, c. 26, §75. It should be noted that the sum sued for was required to be in sterling by 4 Geo. 3, c. 15, §41 (1764).
60. 3 Blackstone, Commentaries *289–291, Appendix III, §5; 1 Bacon, Abridgment 209–210; 12 Geo. 1, c. 29 (1725); Francis Clerke, Praxis Curiae Admiralitatis Angliae, tit. 4 (London, 3d edn., Latin and English, 1722). (The Harvard Law School's copy of this work bears the following notation on its title page in the hand of Simon Greenleaf: “This book belonged to the late Prest. John Adams, whose autograph was stolen as above appears, after I gave it to the Law Library. S.G.” The page is cut at the top.) The Massachusetts practice has not been determined, but in the absence of statute the English procedure was presumably followed. For the English rule on bail in suits on penal statutes, see Presgrave v. ——, 1 Comyns 75, 92 Eng. Rep. 966 (K.B. 1700); St. George's Case, Yelv. 53, 80 Eng. Rep. 38 (K.B. 1604); Gilbert, Common Pleas 37. The statute embodying this rule was specifically limited to cases arising in the common-law courts at Westminster, however. 29 Eliz. 1, c. 5, §21 (1587). Even if the case law could be deemed applicable in the colonies, it would not bind the Court of Admiralty. See a proceeding under the White Pine Acts in New York in which the “Defendent” was held to bail. Wentworth v. Dean, Hough, Reports 227, 228 (N.Y. Vice Adm. 1769). The complaint about bail was thus in effect only another complaint about the latter jurisdiction. See “A Journal of the Times,” 2 March 1769, Dickerson, Boston under Military Rule 72; see notes 63, 64, below.
61. 4 Geo. 3, c. 15, §§41–42 (1764). See Anthony Stokes, A View of the Constitution of the British Colonies in North America 360–361 (London, 1783); Barrow, Colonial Customs 322–323.
62. In England such proceedings were by information, although at common law. 4 Blackstone, Commentaries *303; Hoon, English Customs 279–280. In his opinion in the case of the Lydia, note 3 above, however, Sewall had expressed a great reluctance to proceed by information in the Superior Court, noting that this method had “seldom been used [in Massachusetts] without the consent of the Judges, except in cases where the offense has been clearly against Law and the public Good has evidently required it.” 4 WMQ (3d ser.) 504. The implication is clear that if the Commissioners had wished to proceed at common law in the Liberty case, they would have had to obtain an indictment.
63. For the English Admiralty practice, see Arthur Browne, A Compendious View of the Civil Law, 2:396–443 (London, 2d edn., 1802).
64. One basic issue was the power of Parliament to pass such legislation without colonial representation. See JA's Argument, text following note 1289 below. The colonial position, which had at first been that there should be no taxation without representation, gradually broadened after 1765 into a denial of all parliamentary power over the colonies; moreover, the remedy sought became not representation in Parliament, but colonial home rule. Needless to say, the orthodox English view was opposed to the colonial stand. Miller, Origins of the American Revolution 225–231. Equally critical was the question of the power of Parliament, however constituted, to interfere with what the colonists claimed as fundamental rights. In his argument for Hancock, JA urged that trial in Admiralty was an interference with the right of trial by jury, and others argued, if he did not, that such statutes were void. See text at notes 15–2792–104 below. The English position was that Parliament could not be controlled in this regard. No. 44, notes 32–34. There was a further problem in the effect of the statutes, 13 Ric. 2, c. 5 (1389), and 15 Ric. 2, c. 3 (1391), limiting the Admiralty jurisdiction to matters not arising “within the bodies of the counties,” which had been relied upon at common law in both England and the colonies to restrict the Admiralty courts in ordinary civil matters to things “done upon the sea.” The common-law courts used the writ of prohibition to halt Admiralty proceedings that exceeded these statutory limits. See 1 Holdsworth, History of English Law 552–559. In Massachusetts the Superior Court seems to have interfered in customs suits only when the Vice Admiralty Court acted beyond the jurisdiction given it by the Acts of Trade, indicating an understanding that the latter legislation abrogated the statutes of Richard II pro tanto. See Wroth, “The Massachusetts Vice Admiralty Court,” in George A. Billias, ed., Law and Authority in Colonial America: Selected Essays (Barre, Mass., in press). Perhaps for this reason, JA did not touch upon the issue in Hancock's case. It was raised by others in Massachusetts and elsewhere, however, implying that the ancient acts had attained the stature of fundamental law. See, for example, “A Journal of the Times,” 7 Jan. 1769, Dickerson, Boston under Military Rule 46; Ubbelohde, Vice Admiralty Courts 188–190; Henry Laurens, Extracts From The Proceedings Of The Court Of Vice-Admiralty In Charles-Town, South Carolina 18–19 ([Phila.], 1768), discussed further, note 73 below.
65. See No. 51, notes 8–1316–21, text at notes 33–35.
66. See Bonham's Case, 8 Co. Rep. 114, 118a, 77 Eng. Rep. 647, 652 (C.P. 1610); No. 44, notes 35–38.
67. See No. 44, note 44.
68. In making what was really a political appearance before the Governor and Council to argue for the opening of the courts during the Stamp Act crisis of 1765, Adams urged the invalidity of the Act in the strongest terms. Quincy, Reports 200–202; 2 JA, Works 158–159 note. See No. 44, note 48. See also 1 JA, Diary and Autobiography263–267.
69. See text at notes 36–44 above.
70. See, for example, text at notes 1289, 1491, 28105, below.
71. See text at note 49126 below.
72. “Journal of the Times,” 7 Jan., 26 March 1769, Dickerson, Boston under Military Rule 46–47, 83–84.
73. Laurens' pamphlet, Extracts From The Proceedings Of The Court Of Vice-Admiralty In Charles-Town, South-Carolina, was first published in Philadelphia late in 1768. A portion of it entitled “General Observations on American Custom House Officers and Courts of Vice Admiralty” appeared in the Boston Gazette for 9 Jan. 1769, p. 2, cols. 1–3. An expanded version of the pamphlet, Extracts from the Proceedings of the High Court of Vice Admiralty upon Six Several Informations, published in Charleston, in Feb. 1769, may also have been available to JA. See T. R. Adams, “American Independence”, Nos. 57a–c; “A Journal of the Times,” 7 Jan. 1769, Dickerson, Boston under Military Rule 46–47; Ubbelohde, Vice Admiralty Courts 109–112.
74. See text at note 47 above; text and note 1693, ||text and note||49126, below. Horace Gray suggested that these passages show JA's hand in the “Journal.” Quincy, Reports (Appendix) 457. JA's comment in June 1771 that he had “not wrote one Line in a Newspaper these two Years” (2 JA, Diary and Autobiography39), has been taken to mean that he probably did not participate in the “Journal.” Arthur M. Schlesinger, Prelude to Independence 312 (N.Y., 1958). JA's statement would not have excluded his supplying both the impeachment materials and other commentary on the trial (note 35 above) to the “Journal,” however, since these accounts were published no later than May 1769. Dickerson, Boston under Military Rule 82.
75. Laurens' pamphlet (note 73 above) consisted chiefly of papers from the files of the court in the seizure of his ship Ann, with comments. Compare JA's text at notes 2–579–82, 50–57127–134, below. For political similarities, compare JA's argument with Laurens' “General Observations.” JA did contemplate a report of this nature based on his notes in Rex v. Corbet, also in his Admiralty Book. See No. 56, note 24.
76. The Earl of Clarendon to William Pym, Boston Gazette, Supp., 13 Jan. 1766, in 3 JA, Works 470–472. See also 1 JA, Diary and Autobiography273–275. Compare text at notes 20–2597–102 below.
77. Compare note 55132 below. The political significance of JA's argument is discussed in Lovejoy, “Rights Imply Equality,” 16 WMQ (3d ser.) 459, 478–484 (1959).
{ 194 }

Docno: ADMS-05-02-02-0006-0004-0002

Author: Adams, John
Author: Sewall, Jonathan
Author: Auchmuty, Robert Jr.
DateRange: 1768-10 - 1769-03

Adams' Copy of the Information and Draft of His Argument1

Court of Vice Admiralty, Boston, October 1768–March 1769

Jonathan Sewal vs. John Hancock
Prov. &c.2 Before the Honorable Robert Auchmuty Esqr.
Be it remembered, that on the 29 day of October in the Ninth Year of the Reign of his Majesty George the Third, Jonathan Sewall Esqr. Advocate General for the said Lord the King, in his proper Person comes and as well on behalf of the said Lord the King, as of the Governor of this Province,3 gives the said Court to understand and be informed, that on the ninth day of May last, a certain Sloop called the Liberty, arrived at the Port of Boston in said Province, from the Islands of Madeira, having on Board, one hundred and twenty seven Pipes of Wine of the Growth of the Madeira's; of which said Sloop, one Nathaniel Barnard was then Master, and that in the Night Time of the same day the said Nathaniel Barnard with Intent to defraud the said Lord the King of his lawfull Customs, did unlawfully and clandestinely unship and land on shore in Boston aforesaid one hundred of the aforesaid Pipes of Wine4 of the Value of Thirty Pounds Sterling Money of Great Britain, each Pipe, the Duties thereon not having been first paid, or secured to be paid, agreable to Law. And that John Hancock of Boston aforesaid Esqr. was then and there willfully and unlawfully aiding and assisting in unshipping and landing the same one hundred Pipes of Wine, he the said John Hancock, at the same Time well knowing, that the Duties thereon were not paid or secured and that the unshipping and landing the same, as aforesaid, was with Intent to defraud the said Lord the King as aforesaid, and contrary to { 195 } Law; against the Peace of the said Lord the King and the Form of the Statute in such Case made and provided, whereby and by Force of the same Statute, the said John has forfeited Treble the value of the said Goods, so unshipped and landed as aforesaid, amounting in the whole to the Sum of Nine Thousand Pounds Sterling Money of Great Britain, to be divided, paid and applied in manner following, that is to say, after deducting the Charges of Prosecution, one Third Part thereof to be paid into the Hands of the Collector of his Majesty's Customs for the said Port of Boston, for the Use of his Majesty, his Heirs and Successors, one Third Part to the Governor of said Province, and the other Third Part to him that informs for the same.
Whereupon as this is a matter properly within the Jurisdiction of this Honorable Court, the said Advocate General prays the Advisement of the said Court in the Premisses, and that the said John Hancock may be attached and held to answer to this Information, and may by a Decree of this honourable Court be adjudged to pay the aforesaid Sum of Nine Thousand Pounds to be applied to the uses aforesaid.
[signed] Jon. Sewall Advocate for the King
Octr. 29, 1768. Filed and allowed and ordered that the Register of this Court or his Deputy issue out a Warrant for the Marshall of this Court or his Deputy to arrest the Body of the said John Hancock and him keep in safe Custody so that he have him at a Court of Vice Admiralty to be holden at Boston on the Seventh day of November next at Nine of Clock before noon and that he take Bail for Three Thousand Pounds Sterling money of G. Britain.
[signed] Robert Auchmuty Judge &c.
Upon what Statute is this Libel founded? Is it on 4 G. 3, C. 15, §37.5 Be it enacted, &c. “if any Goods or Merchandizes whatsoever, liable to the Payment of Duties in any British Colony or Plantation in America, by this or any other Act of Parliament shall be loaden on Board any Ship or Vessel outward bound, or shall be unshipped or landed from any ship or Vessell inward bound, before the respective Duties due thereon are paid, agreable to Law; or if any prohibited Goods whatsoever shall be imported into, or exported out of, any of the said Colonies or Plantations contrary to the true Intent and meaning of this or any other Act of Parliament; every Person who shall be assisting, or otherwise concerned, Either in the Loading outwards, or in the Unshipping or landing Inwards, such Goods, or to whose Hands the same shall knowingly come after the Loading or unshipping there• { 196 } of, shall for each and every offence forfeit treble the Value of such Goods, to be estimated and computed according to the best Price that each respective Commodity bears at the Place where such offence was committed; and all the Boats, Horses, Cattle, and other Carriages whatsoever, made Use of, in the Loading, Landing, removing, Carriage or Conveyance of any of the aforesaid Goods, shall also be forfeited and lost, and [shall and] may be seized and prosecuted, by any officer of his Majestys Customs, as hereinafter mentioned.”6
There is a Clause similar, in most respects to this in 8. Ann, C. 7, §17.7 “And for preventing the Frauds, which may be practised in unshipping to be landed any Pepper, Raisins, Mace, Cinnamon, Cloves, Nutmegs, Snuff, or any other Sort of Goods whatsoever, subject to the Payment of Duties without paying the same as also to hinder the Importation of any Sort of prohibited Goods into Great Britain, Be it further enacted by the Authority aforesaid, that if any Pepper, Raisins, Mace, Cinnamon, Cloves, Nutmegs, Snuff, or any other Sort of Goods whatsoever, liable to the Payment of Duties, shall be unshipped, with Intention to be laid on Land (customs and other Duties, not being first paid or secured) or if any prohibited Goods whatsoever, shall be imported into any Part of Great Britain, then not only the said uncustomed and prohibited Goods, shall be forfeited and lost, but also the Persons who shall be assisting, or otherwise concerned in the unshipping the said prohibited and uncustomed Goods, or to whose Hands the same shall knowingly come, after the unshipping thereof, shall forfeit Treble the value thereof, together with the Vessells and Boats, and all the Horses, and other Cattle and Carriages whatsoever, made use of in the Landing, removing, Carriage, or Conveyance of any of the aforesaid Goods,” &c.8
Madeira Wines are Goods and Merchandises, liable to the Payment of Duties in this British Colony or Plantation.9 Admitting it { 197 } proved that a Quantity of such Wines were unshipped and landed, from the sloop Liberty inward bound, before the Duties due upon it, were paid, agreable to Law. What shall be the Construction of the Words “assisting or otherwise concerned,” in the Unshipping or Landing inwards. The Labourers, the Porters, and Sailors, who manage the Tacles and with their own Hands, hoist out the Pipes, are no doubt, concerned, and the Master who oversees and gives orders, is no doubt assisting. But is the owner Either concerned or assisting in it, if he does not know of it. He may be asleep in his Bed, and not so much as know or dream that any Body is unshipping and landing his Wines. Is he then concerned or assisting? Can it be proved that Captain Barnard was concerned? Can it be proved that Captn. Marshall was? What then? Can it be proved that Captn. Marshall asked Leave of Mr. Hancock? Can it be proved that Mr. Hancock knew of this Frolick? If he neither consented to it, nor knew of it, how can he be lyable to the Penalty?10
I must beg the Indulgence of the Court, while I consider the Character of this Act of Parliament. There is a great Variety in the Characters of Laws as well as Men. A benign and beneficial Law is to receive a liberal and benign Construction. A rigorous and severe Law is to receive a strict and severe Construction. And the more penal it is the more severe must the Construction of it be, and the more tenderly must it be carried into Execution. It will not be impertinent therefore to shew in some Detail the Circumstances, that render this Law the most rigid and severe, or in other Words the most poenal of almost any Law in the whole British Pandect.
The Degree of severity in any Poenal Law is to be determined only { 198 } by the Proportion between the Crime and the Punishment. Treason is justly punished with death because it is an attempt to overthrow the whole Frame of the Government, and the Government can never be overturned without the slaughter of many Hundreds of Lives and the Ruin of many Thousands of Fortunes. If a Man will murder his Fellow subject it seems but equall that he should loose his own Life. But in this Case what is the Crime? Landing a few Casks of Wine. Admitting the Crown to have the clearest Right to the Duties it is but unjustly taking away a small sum of Money from the Crown, and one would think that the forfeiture of £100 would be an equal Punishment for withholding £100 in Duties.11 But surely the Forfeiture of an whole Cargo of Wines worth Ten Thousand Pounds, for withholding one hundred Pounds in Duties would be a great Disproportion between the Crime and Punishment. To carry it one step further, and subject the ship, as well as Cargo to Confiscation, but above all to subject the Master to £1000,12 and every Person concerned to a forfeiture of threble value, is such a stretch of security as renders this Act more Penal, than any Statute vs. Rape, Robbery, Murder or Treason.
But among the Groupe of Hardships which attend this Statute, the first that ought always to be mentioned, and that ought never to be forgotten is
1. That it was made without our Consent. My Clyent Mr. Hancock never consented to it. He never voted for it himself, and he never voted for any Man to make such a Law for him. In this Respect therefore the greatest Consolation of an Englishman, suffering under any Law, is torn from him, I mean the Reflection, that it is a Law of his own Making, a Law that he sees the Necessity of for the Public. Indeed the Consent of the subject to all Laws, is so clearly necessary that no Man has yet been found hardy enough to deny it. And The Patrons of these Acts allow that Consent is necessary, they only contend for a Consent by Construction, by Interpretation, a virtual Consent.13 But this is { 199 } only deluding Men with Shadows instead of Substances. Construction has made Treasons where the Law has made none. Constructions, in short and arbitrary Distinctions, made in short only for so many by Words,14 so many Cries to deceive a Mob have always been the Instruments of arbitrary Power, the means of lulling and ensnaring Men into their own Servitude. For whenever we leave Principles and clear positive Laws, and wander after Constructions, one Construction or Consequence is piled up upon another untill we get at an immense distance from Fact and Truth and Nature, lost in the wild Regions of Imagination and Possibility, where arbitrary Power sitts upon her brazen Throne and governs with an iron Scepter. It is an Hardship therefore, scarcely to be endured that such a poenal Statute should be made to govern a Man and his Property, without his actual Consent and only upon such a wild Chimaera as a virtual and constructive Consent.
But there are greater Proofs of the Severity of this statute, yet behind.
2. The Legislative Authority by which it was made is not only grievous, but the Executive Courts15 by which it is to be carried into Effect is another. In the 41st section of this Act 4 G. 3, c. 15.16 we find that “All the Forfeitures and Penalties inflicted by this or any other Act [or Acts] of Parliament, relating to the Trade and Revenues of the said British Colonies or Plantations in America, which shall be incurred there, shall and may be prosecuted, sued for, and recovered, in any Court of Record,17 or in any Court of Admiralty, in the said Colonies or Plantations where such offence shall be committed, or in any Court of Vice Admiralty, which may or shall be appointed over all America, (which Court of Admiralty or Vice Admiralty, are hereby respectively authorized and required to proceed, hear, and determine { 200 } the same), at the Election of the Informer or Prosecutor.” Thus, these extraordinary Penalties and Forfeitures, are to be heard and try'd,—how? Not by a Jury, not by the Law of the Land, [but] by the civil Law and a Single Judge. Unlike the ancient Barons who unâ Voce responderunt, Nolumus Leges Angliae mutari,18 The Barons of modern Times have answered that they are willing, that the Laws of England should be changed, at least with Regard to all America, in the most tender Point, the most fundamental Principle. And this Hardship is the more severe as we see in the same Page of the Statute and the very preceeding section §40, “That all Penalties and Forfeitures, herein before mentioned, which shall be incurred in Great Britain, shall [and may] be prosecuted, sued for and recovered in any of his Majestys Courts of Record in Westminster or in the Court of Exchequer in Scotland respectively.”19
Here is the Contrast that stares us in the Face! The Parliament in one Clause guarding the People of the Realm, and securing to them the Benefit of a Tryal by the Law of the Land, and by the next Clause, depriving all Americans of that Priviledge. What shall we say to this Distinction? Is there not in this Clause, a Brand of Infamy, of Degradation, and Disgrace, fixed upon every American? Is he not degraded below the Rank of an Englishman? Is it not directly, a Repeal of Magna Charta, as far as America is concerned. It is not att all surprising that the Tryals of Forfeiture and Penalties are confined to the Courts of Record at Westminster, in England. The Wonder only is that they are not confined to Courts of common Law here.
The People of England are attached to Magna Charta.20 By the 29th Chapter of that Statute, “Nullus liber Homo capiatur, vel imprisonetur, aut disseisietur de libero tenemento [suo], vel libertatibus, vel liberis Consuetudinibus [suis], aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus nec super eum mittemus, nisi per { 201 } legale Indicium Parium Suorum vel per Legem Terrae.”21 This 29, Chap, of Magna Charta, has for many Centuries been esteemed by Englishmen, as one of the noblest Monuments, one of the firmest Bulwarks of their Liberties—and We know very well the Feelings and Reflections of Englishmen whenever this Chapter has been infringed upon even in Parliament. One Proof of them has been given us by Lord Coke, in his Exposition of this Chapter.22 2. Inst. 51. “Against this ancient and fundamental Law, and in the Face thereof I find an Act of Parliament made, that as well Justices of Assize as Justices of Peace without any finding or presentment of 12 Men, upon a bare Information for the King before them made, should have full Power and Authority by their Discretions,” &c.23
Lord Coke after mentioning the Repeal of this Statute and the Fate of Empson and Dudley, concludes with a Reflection, which if properly attended to might be sufficient even to make a Parliament tremble.24 “The ill success of this Statute and the fearfull End of these 2 oppressors, should deter others from committing the like, and should admonish Parliaments, that instead of this ordinary and precious Tryal Per Legem Terrae, they bring not in absolute and partial Tryals by Discretion.”25
{ 202 }
These are the Reflections of an Englishman, upon a Statute which gave to Justices of Assize, and Peace, the Tryal of Penalties and Forfeitures, which by the 29. C[hapter] of Magna Charta ought to be tryed by Jury. The Statute 4 G. 3. takes from Mr. Hancock this precious Tryal Per Legem Terrae, and gives it to a single Judge.26 However respectable the Judge may be, it is however an Hardship and severity, which distinguishes my Clyent from the rest of Englishmen, and renders this Statute, extremely poenal.27
I have mentioned this Particular, not merely to shew the Hardship { 203 } of this Statute and Prosecution, and that my Client is therefore in a favourable Case,28 but for another Purpose, vizt. to shew the Nature of the Evidence, that is required in this Case. We are here to be tryed by a Court of civil not of common Law, we are therefore to be tryed by the Rules of Evidence that we find in the civil Law, not by those that We find in the common Law. We are to be tryed, both Fact and Law is to be tryed by a single Judge, not by a Jury. We therefore claim it as a Right, that Witnesses not Presumptions nor Circumstances are to be the Evidence.
We are to enquire what is the Evidence required by the civil Law, <in Criminal Cases> in order to convict a Person of a Crime and to Subject him to a Penalty. New Inst. civil Law. Page 316.29 2. “The Number of Witnesses ought to be two at the least to make a full Proof, and these must be free from all Exceptions, Either as to their Persons or their Depositions. For the Testimony of a single Witness is of no Validity, tho the Person is of a great Character,” &c.30 “For one Witness may mistake or lie, and be corrupted, and yet be consistent with himself, and so remain undiscovered; whereas two or three Witnesses may more easily be found in a Conspiracy by a prudent Judge if they are separately examined; and tho many Criminals would escape and many might loose their Right for Want of two Witnesses, yet it would be a lesser Evil than to trust so much Power to the Mistakes or Malice of one Person.”
Dig. Lib. 22. Tit. 5. §12. De numero Testium. “Ubi numerus testium non adjicitur, etiam duo sufficient. Pluralis enim elocutio duorum numero contenta est.”31
Codicis Lib. 4. Tit. 20. §9, §1. “Simili modo sanximus, ut unius testimonium nemo Iudicum, in quacunque causa facile patiatur ad• { 204 } mitti. Et nunc manifeste sanximus, ut unius omnino testis responsio non audiatur, etiamsi praeclarae Curiae honore prefulgeat.”32 Vide Note 32. “Unus testis, nullus testis. Unius Testimonium non admittitur. Vox Unius, Vox nullius est.”33 In this Respect the civil Law conforms to the divine Law. Deut. 19. 15. “One Witness shall not rise up against a Man for any Iniquity, or for any Sin, in any sin that he sinneth: at the Mouth of two Witnesses, or 3, shall the matter be established.”34
But in Hancock's Case, if there were 2 or ten such Witnesses as Mezle,35 they would not amount to Proof sufficient for Condemnation. Because there are against him, the strongest legal Exceptions, 1. His Condition. New Inst. civ. Law. 315. “Indigent Persons and Beggars ought to be suspected, because they are easily corrupted.”36 Dig. 22. 5. 3. “Testium Fides diligenter examinanda est: Ideoque in Persona eorum exploranda, erunt in primis, Conditio, cujusque; utrum quis decurio an Plebeius sit; et an honestae et inculpatae vitae, an vero notatus quis, et reprehensibilis. An locuples vel egens sit ut lucri causa quid facile admittat: vel an inimicus ei sit, adversus quem testimonium fert; vel amicus ei sit, pro quo testimonium dat:” &c.37 Vide Note 22. “In Testibus hac sunt inquiranda, Conditio, Vita, Facultates, Inimicitiae, vel amicitiae, suspicio denique &c.”38
Calv. Lex. Testes.“Callistratus, testium Fidem, Conditionem, Vitam anteactum, Fortunam, Aestimationem, atque dignitatem diligenter exquirendam esse praecipit.”39
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Fortescue De Laudibus Legum. C. 31. page 38. “It will not always happen that they [i.e. perjured witnesses] are or can be known by the Party, Defendant in the Cause, in order to call in Question their Life and Conversation, that as Persons of a profligate Character, they might be cross examined; upon which account their Evidence might be set aside.”40
The general Character of this Witness cant be known. We can have no Citation to the Mountains of Switzerland, or the Fens of Holland or the Plains of Cape Francois,41 for Witnesses to his general Character for Truth. We ought to know therefore all that can be known of his History from his own Mouth. Life and Conversation, Fides, Vitam anteactam, inculpatae et honestae Vitae are Expressions, that denote more than a general Character for Truth or falshood.
The civil Law seems to lean to the side of Mercy, as much as the common Law. Wood Inst. 310. “In Criminal Cases the Proofs ought to be as clear as the Sun at Noon day:”42
Domat. V. 1. Page 13. Preliminary Book. Tit. 1. Sect. 2. N. 15.43 “The Laws which restrain our natural Liberty, such as those that forbid any Thing that is not in itself unlawfull or which derogate in any other manner from the general Law, the Laws which inflict Punishments for Crimes and offences, or Penalties in civil matters; those which prescribe certain Formalities; the Laws which appear to have any Hardship in them” &c.44 “are to be interpreted in such a manner, as not to be applied beyond what is clearly expressed in the Law,” &c.45 “We ought to give to such Laws all the Temperament of Equity and Humanity, that they are capable of.” Notae: “Interpretatione Legum Poenae molliendae sunt, potius quam asperendae. In Poenalibus Causis benignius interpretandum est. In levioribus Causis proniores at Lenitatem Judices esse debent, in gravioribus Poenis, Severitatem Legum, cum aliquo temperamento benignitatio subsequi.”46
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Codicis. Lib. 4. Tit. 19. §.25. De Judiciis criminalibus. “Sciant cuncti accusatores eam se rem deferre in publicam notionem debere quae munita sit idoneis Testibus, vel instructa apertissimis documentis vel indiciis ad probationem indubitatis et luce clarioribus expedita.”47 Vide Notes also.48
But disregarding order, for the present let me record the Controversy We had last Week, Concerning the Rules of Law which were to govern this Case.49 The Court of Admiralty is originally a Civil Law Court. Jurisdiction of a Crime, is given to it in this Case by Act of Parliament. The Question is whether it is to proceed by the civil Law? If it is, We have a Right to examine the Witnesses whole past Life, and his Character at large. A Son cannot be examined against the Father nor the Father against the Son, and other Relations are disqualified to be Witnesses. All Persons under Twenty are disqualified, under 20 years of age I mean, from being Witnesses. Servants and dependants { 207 } are not to be Witnesses. Nay. Mr. Fitch says we must adopt the Method of Torture, among the rest.
On the Contrary I argue, that if We are to be governed by the Rules of the common Law We ought to adopt it as a whole and summon a Jury and be tryed by Magna Charta. Every Examination of Witnesses ought to be in open Court, in Presence of the Parties, Face to Face. And there ought to be regular Adjournments from one Time to another.
What other Hypothesis shall we assume? Shall We say that We are to be governed by some Rules of the common Law and some Rules of the civil Law, that the Judge at his Discretion shall choose out of each system such Rules as please him, and discard the rest. If so Misera Servitus est. Examinations of witnesses upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them. Shall We suffer under the odious Rules of the civil Law, and receive no advantage from the beneficial Rules of it? This, instead of favouring the Accused, would be favouring the Accuser, which is against the Maxims of both Laws.
Interlocutory Decree50
Advocate General vs. John Hancock, Esqr.
The Substance of the Point before the Court, is, whether a Witness shall be examined to charge another Witness in the Cause with a particular infamous Crime.
It is urged by the Advocates offering the first mentioned Witness, first, that this is a civil Law Court, and secondly, by that Law such Evidence is admissible. To the last Point several authorities were cited, but the principal one from the Digest 22. 5. 2. 3.51
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To which it was answered by the Advocates on the other side that this is not a civil Law Court in such Cases as the present. And that the Authorities produced were not to be understood in the Sense contended for by the Respondents Advocates. In support of the last, the Notes under the aforesaid 3 Law in the Digest were read and relyed on.52 It was also urged, that admitting the civil Law to be as contended for, the argument would prove too much, because it would exclude relations in certain Degrees, intimate Friends, Persons under the age of Fourteen &c. from testifying.
I take the Sense of the Authority first mentioned, to be no more than a general description of what are good objections against persons being admitted to their Oaths as Witnesses without describing the mode whereby such disqualifications are to be ascertained. If said Authority is not so construed, it certainly clashes with the notes, which clearly relate not to the Admission of Witnesses, but the Credit or Refutation of their Evidence. The reason why proof by record ought to be exhibited against a Witness, when charged with a Crime, appears clear from the Question put in the Note, under D. 22. Tit. 3. “Quis enim, si sufficiat accusasse, innocens fiet?”53 Such a reading reconciles the Text and comment in the Digest to each other, and the former to Reason. I am therefore of opinion the motion is not well supported, even by the Rules of the civil Law. In addition to which, when I consider the process now in question, is founded on an Act of parliament, originally intended to be guided by the Rules of the common Law,54 that the Practice of the Court has ever been to hear and determine similar cases, according to those rules, the manifest and great inconveniences which must accrue, by the Admission of such { 209 } evidence, I am clearly of opinion, the Question put is improper, and therefore Decree the same to be withdrawn.55
[signed] Robt. Auchmuty Judge &c.
Obsirve, The Expressions. The Substance of a Point. A Point has not Parts, therefore is indivisible, therefore to talk of the substance of it, is not the neatest or most elegant. But to omit Criticism, let me make a few Observations upon the <Reasoning> substance of the Decree.
1. The Advocates for the Crown, did not argue that our Argument would exclude Relations, Friends, Persons under 14. &c. But the Advocates for the Respondent, insisted that all those Rules of the civil Law ought to be adopted, because they were beneficial to the subject the Respondent. We had no difficulty at all in Admitting the Consequence as far as it is here mentioned. So far from it that we desired it, because Mr. Hancock's Relations, Friends, and many Persons under age have been examined in this Case. It is true Mr. Fitch did argue that our Principle would justify the Introduction of Torture and this he thought was proving too much, and this was well observed by Mr. Fitch and was the best argument I have heard in the Case.56
2. The Judge has totally mistaken the “Sense” of the Authority, for instead of being a Description of Objections against Persons being admitted to their Oaths it is wholly confined to those who are already sworn. It is Testium Fides examinanda est,57 not Personarum Fides, and as a Witness in English implies the Competency of the Person, so { 210 } Testis in Latin implies the same, and a Person cannot be Testis, untill he is admitted, to tell what he knows, i.e. to give Evidence.58
1. In JA's hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184. Apparently a copy from an earlier state now lost. See text at note 70 above. Portions of the MS were printed in Quincy, Reports (Appendix) 457–463, and 2 JA, Works 215. For the dating of the MS, see text following note 70 above.
2. An abbreviated form for the usual caption, probably “Province of Massachusetts Bay / Court of Vice Admiralty.”
3. The usual form of the qui tam information used to prosecute these divided forfeitures. See notes 28, 56, 62, above. The name derives from the full Latin phrase, “qui tam pro Domino Rege quam pro seipso” (who [sues] as well for our Lord the King as for himself). See 2 Hawkins, Pleas of the Crown, c. 26, §17. Sewall omitted the usual last phrase “for himself,” but it is clear from the form of the information as a whole that he was suing as informer. See form used in New York, Hough, Reports 272–274.
4. According to testimony, note 5 above, twenty-five pipes were entered at the Custom House. It is not known whether the two additional pipes alleged here are the correct figure or represent counsel's margin for error.
5. The American Act of 1764, 4 Geo. 3, c. 15, §37. Quotation marks supplied.
6. That is, in a court of law or of Admiralty, the proceeds to be divided equally among the Crown, the governor of the province in which the case was tried, and the informer. 4 Geo. 3, c. 15, §§41, 42.
7. 8 Anne, c. 7, §17 (1709). Quotation marks supplied.
8. The remainder of the section provides that half of the penalties and forfeitures levied go to the Crown and the other half to the informer, “to be recovered by bill, plaint, or information, wherein no essoin, protection, or wager of law shall be allowed.” The latter clause, which in other similar acts had been held to limit the jurisdiction to the common law, and the seeming limitation on the face of the act to imports into England, indicate that this statute could not have been the basis of the action. See Chalmers, Opinions 500.
9. A duty of £7 per tun was levied on Madeira wine by the American Act of 1764, 4 Geo. 3, c. 15, §1; Knollenberg, Origin of the American Revolution 176–177. According to Webster's New Collegiate Dictionary (Springfield, Mass., 1949), a tun was equal to two pipes, or about 250 gallons.
10. This represents the general common-law rule on the liability of a principal for the misdemeanor of an agent, at least in the absence of the principal's negligence. See William L. Clark and William L. Marshall, Law of Crimes §8.12 (Chicago, 6th edn., M. F. Wingersky, 1958). As to Captains Barnard and Marshall, see text at notes 4–6 above. In Attorney General v. Woodmass, Bunbury 247, 145 Eng. Rep. 662 (Exch. 1727), an information on 8 Anne, c. 7, §17, note 784 above, “for being assisting or otherwise concerned in unshipping five hundred gallons of brandy,” some of the brandy “run” was ultimately “carried to the defendant's house; but it did not appear the defendant was present either at the time of running or removing the goods to his house; but he afterwards paid the cobblemen for running these goods.” The court held that “this was a being concerned within the statute, if the jury were of opinion that the defendant employed the persons to run the goods on his account, and paid them for that purpose.” Verdict for the Crown. See also Attorney General v. Flower, Bunbury 227, 145 Eng. Rep. 656 (Exch. 1726); Attorney General v. Lake, Bunbury 277, 145 Eng. Rep. 673 (Exch. 1729). William Bunbury's Reports of Cases in the Court of Exchequer was first published at London in 1755. 1 Sweet and Maxwell, Legal Bibliography 322.
11. The duties on 100 pipes, or 50 tuns, would have been £350. See note 986 above.
12. Thus in MS. The penalty on a master permitting dutiable goods to be loaded aboard his vessel for unlawful entry in the Plantations was actually £100. 6 Geo. 2, c.13, §7 (1733), made applicable by 4 Geo. 3, c. 15, §7 (1764). It would seem that the master would also be liable under the broader provisions of 4 Geo. 3, c. 15, §37, note 582 above. Sewall did proceed against the master of the Liberty. See note 26 above.
13. The doctrine of virtual representation, by which a member of Parliament was held to represent the interests of the Empire as a whole, rather than those of his constituents, was used by the English to justify their own system of limited franchise and rotten boroughs, as well as colonial nonrepresentation. See Miller, Origins of the American Revolution 212–215.
14. Thus in MS. Compare 2 JA, Works 215 note. The garbled text here suggests that JA was copying from notes or an earlier draft.
15. That is, the courts of justice, which “execute” the laws, as distinguished from legislative “courts,” such as the General Court, which make them. See No. 44, note 2072.
16. American Act of 1764, 4 Geo. 3, c. 15, §41. Opening quotation mark supplied. The text following, through note 27104, was used by JA with some revision in his “Instructions of the Town of Boston to their Representatives,” 15 May 1769, 3 JA, Works 508–509, 16 Boston Record Commissioners, Reports 285–289, abbreviated in “A Journal of the Times,” 14 May 1769, Dickerson, Boston under Military Rule 99. The MS, in JA's hand, is in the Boston Public Library. The instructions were published in full in the Boston Gazette, 15 May 1769, p. 1, cols. 1–3. See text at notes 47, 74, above. Important variations between the text of the argument and that of the “Instructions” are noted below, but a detailed comparison must await publication of the “Instructions” in Series III of The Adams Papers. ||Digital edition: “Instructions,” 15 May 1769, now available in Papers of John Adams, volume 1.||
17. In quoting the statute in his “Instructions”JA omitted all clauses dealing with the concurrent jurisdiction at common law.
18. Translated in JA's “Instructions” as “who answered with one voice, 'We will not that the laws of England be changed.'” This famous line is the reply of the barons to the request of the bishops that they be permitted to follow the canon law by certifying children born before marriage as legitimate. Statute of Merton, 20 Hen. 3, c. 9 (1234). The phrase appears in slightly different form in the text of the statute itself, but JA followed Coke's rendition of Bracton's version. 2 Coke, Institutes *98. See 2 Holdsworth, History of English Law 218. In Coke's text, the active voice of the infinitive “mutare” (to change) is used. JA's probably inadvertent use of the passive, “mutari,” is carried over into his translation, changing the barons' denial of a request for legislation into a legislative principle.
19. American Act of 1764, 4 Geo. 3, c. 15, §40.
20. This and the preceding three sentences were omitted in the “Instructions,” and the two paragraphs were telescoped into a single sentence, “Is it not with respect to us a Repeal of the 29th Chapter of Magna Charta?” 3 JA, Works 509.
21. Translated by JA in his “Instructions,” 15 May 1769, as “No freeman shall be taken or imprisoned or disseised of his freehold or liberties or free customs or outlawed or exiled or any otherwise destroyed, nor will we pass upon him nor condemn him, but by lawful judgment of his peers or the law of the land.” 3 JA, Works 509. The text is that of Magna Carta, 9 Hen. 3, c. 29 (1225), quoted from the version given by 2 Coke, Institutes *45. Quotation marks and omitted words supplied. It is this text, approved by Henry III at his majority, rather than that granted by John at Runnymede in 1215, which actually has the force of law today. See Plucknett, Concise History 23. The differences between the two documents are slight, however, and are not material in this section. See William S. McKechnie, Magna Carta 181–183, 436, 445–446 (Glasgow, 1905). For changes in translation brought about by modern scholarship, see id. at 436–448; 1 Holdsworth, History of English Law 59–63.
22. This and the preceding sentence are rendered in the “Instructions” as “Englishmen are inviolably attached to the important right expressed in this clause, which for many centuries has been the noblest monument and firmest bulwark of their liberties. One proof of this attachment, given us by a great sage of the law, we think proper to mention, not for your information, but as the best expression of the sense of your constituents.” 3 JA, Works 509.
23. 2 Coke, Institutes * 51. Quotation marks supplied. Coke's sentence continues, “to heare and determine all offenses, and contempts committed, or done by any person, or persons against the forme, ordinance, and effect of any statute made, and not repealed, &c.” The Act, 11 Hen. 7, c. 3 (1494), excepted treason, murder, and felony from its provisions. See 4 Coke, Institutes *40–41. In his “Instructions”JA quoted Coke as saying “by their discretions to hear and try men for penalties and forfeitures.” 3 JA, Works 509.
24. In the “Instructions” the last phrase is “to discourage such attacks upon fundamental principles.” 3 JA, Works 509.
25. 2 Coke, Institutes *51. 11 Hen. 7, c. 3, was repealed by 1 Hen. 8, c. 6 (1509), which, according to Coke, recited that under the earlier act, “it was manifestly known, that many sinister, and crafty, feigned and forged informations, had been pursued against divers of the kings subjects to their great damage, and wrongful vexation.” 2 Coke, Institutes *51. This is a reference to the doings of Sir Richard Empson and Edmund Dudley, councilors of Henry VII employed in the collection of taxes and forfeitures due the Crown, who were purported to have abused the power of proceeding by information under 11 Hen. 7, c. 3. On the accession of Henry VIII they were thrown into the Tower, accused of various oppressive tactics; while there, they were charged with and convicted of having compassed the death of the new king, and were executed on these grounds in 1510. 1 Howell, State Trials 283–288; see DNB under both names. JA used this episode in his Clarendon Letters of 1766, attacking the use of the Admiralty courts in the Stamp Act. See note 76 above.
26. Coke does not deal with the problem under the clause “Iudicium Parium suorum,” or judgment of peers, the traditional source of the right to jury trial. He seems to view that clause merely as a confirmation of the nobility's right to a trial by their peers. 2 Coke, Institutes *48–50. Instead, his “reflections” are a gloss on the clause “per Legem Terrae,” to which he gives the meaning “due process of law.” His criticism of 11 Hen. 7, c. 3, seems to be based more on the fact that no indictment was required, than on the absence of a trial jury. id. at 50–51; but see 4 Coke, Institutes *41. Modern scholars are agreed that in granting a trial by judgment of peers, Magna Carta granted not the modern trial by jury but rather the right to trial in a court of peers instead of in the King's court. There is disagreement as to whether “the law of the land” means due process, or simply the usual medieval modes of trial—battle, ordeal, and compurgation. See 1 Holdsworth, History of English Law 59–63; 2 id. at 214–215. Whatever the correct interpretation, Parliament does not seem to have regarded summary trial as a deprivation of due process. No general measure was ever enacted again, but by the middle of the 18th century certain customs violations and at least 200 other specific offenses against statutory regulation, punishable corporally or by fines ranging up to £500, were to be tried by one or more justices of the peace sitting without a jury. Frankfurter and Corcoran, “Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury,” 39 Harv. L. Rev. 917, 922–934 (1926); Hoon, English Customs 277, 280. A similar range of offenses was within the jurisdiction of Massachusetts justices, but there was a theoretical right to a jury through an appeal procedure much hedged in with restrictive security requirements. 39 Harv. L. Rev. 938–942. Moreover, in England the proceeding by information, rather than indictment, was a common one for many misdemeanors even when trial was to a jury. See note 62 above.
27. In the “Instructions” the preceding paragraph is summed up in the sentence, “Such are the feelings and reflections of an Englishman upon a statute not unlike the statute now under consideration, and upon courts and judges not unlike the courts and judges of admiralty in America.” 3 JA, Works 509.
28. This may be another garbled passage showing that JA copied from notes. See text at note 70 above. Or it could mean that Hancock's “Case” was to be considered “favourable” in the sense that the hardships were extenuating circumstances which entitled him to favorable consideration. See OED.
29. Wood, New Institute of the Civil Law 316. Quotation marks supplied.
30. JA has here omitted the following passage: “unless he swears of his own Fact, and where there are other Circumstances to concur or corroborate, or unless he is a publick Officer; as a Notary, &c. deposing by Vertue of his Office. This is founded upon very good reason.” Wood, New Institute of the Civil Law 316.
31. Justinian, Digest, bk. 22, tit. 5, §12. Quotation marks supplied. For translation see 5 Scott, Civil Law 235: “Where the number of witnesses is not specified by law, two are sufficient, for the term 'several' is embraced in the number two.”
32. Justinian, Codex, bk. 4, tit. 20, §9, §1. Quotation marks supplied. See 13 Scott, Civil Law 37: “In like manner, we have ordered that no judge shall in any case readily accept the testimony of only one witness; and now We plainly order that the evidence of only one witness shall not be taken, even though he should be distinguished by senatorial rank.”
33. The edition used by JA has not been found. For this passage, see 2 Corpus Juris Civilis 176, note 18 (Antwerp, 1726).
34. Deuteronomy 19:15. Quotation marks supplied. The reference appears at the page in Wood's New Institute, cited in note 26106 above.
35. As to Mezle, or Maysel, see text at notes 37–39 above.
37. Justinian, Digest, bk. 22, tit. 5, §3. Quotation marks supplied. See 5 Scott, Civil Law 232–233:
“The integrity of witnesses should be carefully investigated, and in consideration of their personal characteristics, attention should be, in the first place, paid to their rank; as to whether the witness is a Decurion or a plebeian; whether his life is honorable and without blame, or whether he has been branded with infamy and is liable to censure; whether he is rich or poor, lest he may readily swear falsely for the purpose of gain; whether he is an enemy to him against whom he testifies, or whether he is a friend to him in whose favor he gives his evidence.” The concluding sentence of the above translation, which was omitted by JA, is, in the Latin, “Nam si careat suspicione testimonium, vel propter personam, a qua fertur, quod honesta sit: vel propter causam, quod neque lucri neque gratiae, neque inimicitiae causa sit: admittendus est.”
38. See 1 Corpus Juris Civilis 436 note 38 (Antwerp, 1726).
39. Johannes Calvinus, Lexicon Juridicum Juris Caesarei Simul et Canonici 905, tit. “Testis,” (Cologne, 1622). Quotation marks supplied. The editors' translation: “Callistratus decreed that the good faith, condition, previous life, lot, reputation, and rank of witnesses should be diligently inquired of.”
40. Sir John Fortescue, De Laudibus Legum Angliae 38 (London, 1741). Quotation marks supplied. Fortescue was actually pointing to this as a defect in civil-law procedure. His De Laudibus, written about 1468, and first published in the 16th century, was intended to demonstrate the great superiority of the English to the Roman law. See 2 Holdsworth, History of English Law 569–570.
41. Maysel was evidently of European origin. See note 49126 below.
42. Wood, New Institute of the Civil Law 310. Quotation marks supplied.
43. Jean Domat, The Civil Law In Its Natural Order, 1:13–14 (London, transl. Strahan, 1722). Quotation marks supplied.
44. JA here omitted “those which permit Disinheriting and others the like.”
45. JA here omitted: “to any consequences to which the Laws do not extend. And on the contrary . . .”
46. The preceding three sentences are in a note at the end of the passage from Domat, cited, note 43120 above. They are quoted from the following sections of Justinian, Digest: bk. 48, tit. 19, §42; bk. 50, tit. 17, §155(2); bk. 48, tit. 19, §11. See 11 Scott, Civil Law 124: “By the interpretation of the laws, penalties should rather be mitigated than increased in severity.” Id. at 312: “In penal cases, the most benevolent construction should be adopted.” Id. at 115: “It is clear that in cases of minor importance, judges should be inclined to lenity; and where heavier penalties are involved, while they must comply with the stern requirements of the laws, they should temper them with some degree of indulgence.”
47. Justinian, Codex, bk. 4, tit. 19, §25. See 13 Scott, Civil Law 36: “All accusers are hereby notified that they cannot bring a criminal charge for anything which has been established by reliable witnesses; or clearly proved by documentary evidence; or shown to be true by undoubted testimony clearer than light.” A better translation of the first clause might be “charge unless a thing has been established.” This section is cited in the margin of the passage in Wood's New Institute, cited, note 42119 above.
48. The notes in 2 Corpus Juris Civilis 175, notes 24–26 (Antwerp, 1726), reiterate the sense of the text quoted at note 47124 above.
49. According to “A Journal of the Times,” on 24 Feb. “The advocates for Mr. Hancock, offered evidence to prove that a witness, who had been before examined for the proponent, was a fugitive from his native country, to avoid the punishment due to a very heinous crime. The advocates for the crown objected to this evidence as improper, urging that by common law, nothing could be proved against a witness but his general character for falsehood. The advocates for the respondent replied, that the Court of Admiralty proceeded according to the civil law, whereby a witnesses whole life and conversation ought to be examined. And they insisted upon knowing by what law their client was to be tried.” Dickerson, Boston under Military Rule 68. The passage continues with a close paraphrase of the text here, adding a few phrases from JA's earlier notes on the civil law. The English common-law rule at this time was basically that asserted by the Crown. A witness' general moral character and character for truth were admissible to impeach, but evidence of specific misconduct could be admitted only in the form of a record of criminal conviction. See Wood, Institute of the Laws of England 597; 2 Bacon, Abridgment 288, 296; Gilbert, Evidence 157–158. The distinction was doubtless due to the fact that those guilty of felony and other crimes involving falsehood were altogether excluded as witnesses. Id. at 142–145.
50. Probably given on 1 March 1769. See note 38 above.
51. Though partly overwritten, this refers to bk. 22, tit. 5, §§2, 3. For §2, see 5 Scott, Civil Law 232: “The rank, the integrity, the manners and the gravity of witnesses must be taken into consideration, and therefore those who make contradictory statements, or who hesitate while giving their evidence, should not be heard.” “Manners” (Latin “mores”) might be better translated as “morals.” The first part of §3 appears in text at note 37114 above. The section goes on to provide that the judge should determine credibility; that all available kinds of proof should be investigated; that the judge should examine the witnesses if possible, allowing them their costs; and that witnesses should not be summoned from afar unless it is the custom of the region. The passage most relevant here would seem to be the following:
“It is proved by the Lex Julian relating to violence, that those shall not be permitted to give testimony against a defendant who has [i.e. have] been freed by him or his father; or who have not yet arrived at puberty, or anyone who has been condemned for a public crime, and has not been restored to his former condition, or who is in chains, or in prison, or has hired himself out to fight with wild beasts; or any woman who openly prostitutes herself, or has already done so; or anyone who has been sentenced or convicted of having received money for giving or witholding testimony.” Id. at 233–234.
52. For the notes, see 1 Corpus Juris Civilis 436–437 (Antwerp, 1726). See note 53130 below.
53. 1 Corpus Juris Civilis 437 note 1, a note to the latter part of Justinian, Digest, bk. 22, tit. 5, §3. Editors' translation: “Who, however, will be found innocent, if it be sufficient to have been accused?” The preceding sentence is, in translation, “In the refutation of a witness, it is not enough that he be accused of a crime; it is necessary that he be convicted.” See also, 1 Corpus Juris Civilis 436, note 73, an annotation to the passage quoted in note 51128 above concerning those who are in chains or in prison, which states that such persons are not rejected as witnesses unless they have been convicted, seemingly because chains and prison alone are not a sign of infamy.
54. Compare “A Journal of the Times,” 24 Feb. 1769: “If therefore the court is to adopt the common law, because the jurisdiction was created by Act of Parliament; it ought to adopt it as a system.” Dickerson, Boston under Military Rule 68.
55. For a somewhat similar argument, see Stokes, Constitution of the British Colonies 361. In “A Journal of the Times,” 2 March 1769, Auchmuty's point that the evidence would be inadmissible even under the civil law was not mentioned and the decision was said to have turned upon “the usage of the court, and the inconveniencies that would attend the introduction of the rules of the civil law, in cases of this nature.” The writer asked upon what usage this unique case could be based, and went on to point out that the court had not been deterred by inconvenience in using interrogatories, in sitting without regular adjournments, in issuing compulsory citations to witnesses, and in ordering arrest and high bail for immediate appearance. After noting that only the judge's discretion determined which law would apply, the account continued, “It is reported that the advocates for Mr. Hancock, had no solicitude about the question they put to the witness, but they thought that if the court would proceed by such rules of the civil law as pleased the officers of the revenue, they had a right to such rules of the same law, as made in favour of Mr. Hancock.”Dickerson, Boston under Military Rule 72.
56. This point was turned to good account in the entry in “A Journal of the Times,” note 55132 above. As a consequence of the judge's discretion to determine the applicable law, “if a case should happen that should require it, or if the C[ommissio]n[e]rs should give their mandate to the court, supposing them hereafter to get a judge fit for the purpose, why might he not gently put parties or witnesses to the torture, and extend them on the rack? Donec eorum rumpuntur nervi, et venae in sanguinis fluenta prorumpunt.” Dickerson, Boston under Military Rule 72.
57. That is, in the passage in the Digest in text at note 37114 above.
58. Both the abrupt termination of his argument at this point without a formal conclusion and the state of the manuscript suggest that JA intended to continue this paper.
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