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Browsing: Legal Papers of John Adams, Volume 2


This note contained in document ADMS-05-02-02-0006-0004-0001
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.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/