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Browsing: Legal Papers of John Adams, Volume 2

Docno: ADMS-05-02-02-0002-0001-0003

Author: Adams, John
Date: 1767-12

Adams' Minutes of the Winslow Trial1

Barnstable Inferior Court, Barnstable, December 1767

Winslow qui tam vs. Clark
Hovey. 239. Page. Nusances in Rivers. Natural, usual or common Passage.2
{ 19 }
Wm. Robbins. Knows the Brook. Saw Clark make a Ware3 with sticks and stones and Boards. Saw James Clark cat[c]h Fish.
Thos. Snow.
Our Witnesses.
Lt. Freeman. No Water in the guzzell4 when Winslow Gates are down in Herring Time.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. Dated from JA, Docket, Adams Papers. See note 1 above. Winslow was a justice of the quorum. Whitmore, Mass. Civil List 146.
2. James Hovey, counsel for Winslow, most probably refers to an Act of 1727: “[W]hosoever . . . shall sett up, erect or make any wears . . . or other incumbrances whatsoever, on or across any river for straitning, obstructing or stopping the natural, usual or common passage of fish, in the spring or other proper seasons of the year, without the approbation of the court of general sessions of the peace, shall, for every such offence, forfeit and pay the sum of ten pounds, to be sued for and recovered by plaint, bill or information in any of his majestie's courts of record within the county where the offence is committed; one half thereof to be to him that shall inform and sue for the same, and the other half to the poor of the town or towns where such incumbrances have been made or set up.” Act of 3 July 1727, 2 A&R 426. The Act appears at p. 239–240 of Acts and Laws of the Province of Massachusetts Bay.
3. That is, a weir, or dam.
4. “Guzzle”: “a gutter, drain.” OED.

Docno: ADMS-05-02-02-0003-0001-0001

Editorial Note

Colonial Massachusetts is often charged with having supported a religious establishment. As Green v. Washburn, No. 37, indicates, there is a sense in which this charge is all too well-merited. The “establishment” which existed in the 18th century, however, was far from being the state-controlled church administering a rigid dogma which the term suggests. Indeed, local autonomy was the very essence of the Congregational faith of the Massachusetts Puritans. The “establishment,” whatever support it may have received from the state, was only the sum of several hundred self-sufficient congregations which subscribed to certain common principles but were jealously independent in defining their faith within the limits of those principles and in governing their own temporal affairs. Fundamental to this spirit of independence was the jurisdiction of each church over the conditions of its membership. Deacon Thomas Pierce's suit for defamation against Samuel Wright arose from the latter's invocation of this jurisdiction in the Church of Christ in Wilmington, to which they both belonged.1
In September 1767 Pierce and Wright had, with Philemon Chandler, served as arbitrators in a dispute between Jeremiah Bowen and Zacheus Hibberd over the division of certain timber which they had jointly ar• { 21 } ranged to have cut and sawed. The award of the arbitrators had provided, among other things, that Bowen should receive “all the Ship Timber and half the Boards they got Sawed,” as well as certain “Coals,” presumably charcoal. According to later witnesses, after the award was read to the parties, Wright further said that Bowen was to understand that he was not thereby entitled to take any of the “plank” cut, which had been reserved for the floor of Hibberd's barn. Pierce and Chandler did not object to this statement and indicated by later comments that it represented their understanding as well.2 The next stage in the proceedings occurred two or three weeks later before Justice of the Peace Josiah Johnson, where Hibberd was suing Bowen. It is not clear whether the original arbitration had been conducted as part of this suit, or whether the suit was newly brought on some phase of the award. In any event, the issue seems to have been the right to the “plank.” Thomas Pierce was called as a witness and apparently testified that the arbitrators had intended that all of this commodity should go to Bowen.3
After an unsuccessful effort to change Pierce's position, Wright submitted a formal complaint against him to Isaac Merrill, pastor of the Wilmington church. The complaint charged that Pierce when under oath had solemnly declared “Things contrary to Truth and contrary to his holy Profession. And . . . dishonorary to God and Religion.”4 After the service on 11 October, the complaint was read to the assembled members, and Wright stated that he had meant to charge Pierce with perjury. Ten days later Pierce demanded in writing that Wright give him “Christian satisfaction” (that is, a retraction and apology before the congregation), threatening otherwise “to seek after it in a Legal Way.”5
{ 22 }
No retraction seems to have been forthcoming, because Pierce brought an action of the case against Wright at the November 1767 term of the Middlesex Inferior Court, with separate counts in libel and slander, alleging £500 damages. The declaration (Document I), probably drawn by Jonathan Sewall, counsel for Pierce at the trial, is a classic example of the common-law form in such matters, complete with inducement, colloquium, innuendo, and all.6 On a plea of the general issue the suit went to the jury at the March 1768 session. Although Benjamin Kent was counsel of record for Wright, Adams argued his case, unfortunately without success. Pierce won a verdict of £3 and both parties appealed to the Superior Court. There at the October 1768 term, with James Putnam joining Sewall, and Adams again appearing for Wright, Pierce obtained a second verdict. On a motion in arrest of judgment the case was continued, but at the April 1769 term judgment for £9 damages and £28 13s. Id. costs was entered for Pierce on the verdict.7
Adams' undated minutes (Document II) have been assigned to the March 1768 Inferior Court trial.8 They are chiefly of interest because they record an argument in which Adams presented the defense of privilege. He first demonstrated that the Cambridge Platform of 1648, the traditional governing ordinance of the Congregational churches, gave to members the right to accuse before the congregation brothers whom they felt had strayed from the ways of righteousness.9 This procedure, Adams argued, was necessary to the principal end of the church, the mutual encouragement and preservation of godliness. No action for defamation should lie against one who sought to exercise the right. The possibility of liability would discourage members from coming forward, and the church could not protect itself against the unrighteous. There would be no abuse in the absence of a civil remedy, however. One who sought deliberately to injure another with false charges would be discovered and punished in the { 23 } course of the trial of his own accusations. As a separate point Adams also contended that Wright's written complaint was not actionable, drawing an analogy to English authority which held that documents in legislative and judicial proceedings, including those in spiritual courts, were privileged.10
Modern theory recognizes two branches of privilege—the absolute privilege to defame regardless of motive that is accorded to participants in judicial and legislative proceedings as a matter of public necessity, and the qualified privilege which exists in certain other circumstances and may be defeated on a showing that the defamer acted with “malice”—that is, abused the privilege by publishing defamation to serve an interest other than that meant to be protected. In the modern view members of religious and other groups have a qualified privilege to defame other members in the course of their proceedings.11
At the time of Pierce v. Wright, as Adams' authorities show, the common law had long known the absolute judicial and legislative privilege. But the concept of a qualified privilege in other matters was barely in its infancy. It first appeared in something like its modern form in a dictum of Lord Mansfield's in 1769 to the effect that a master was qualifiedly privileged in describing a former servant to a prospective employer.12 In several early 19th-century American decisions the courts extended a qualified privilege to church deliberations, but the reasons given are confusing. The servant cases were usually cited, as well as a very brief opinion in an English criminal libel proceeding which seemed to give the privilege to church members on the grounds that the affair was “merely a piece of discipline.” Courts and counsel relied heavily upon the older judicial-privilege authorities, however, and the opinions are really framed on the analogy of church to court proceedings.13
{ 24 }
This last analogy runs throughout Adams' argument and is express in his reference to the judicial-privilege cases. His suggestion that abuse of privilege was to be remedied by action within the church shows that he did not envision the modern concept of qualified privilege. Nevertheless, his argument contains a principle that goes far beyond the unrealistic church-court analogy drawn by later cases. In emphasizing the constitution and aims of the church he anticipated the basis of the modern grant of privilege to church members. It is not the judicial nature of the deliberations, but the right of the members to protect or advance the common interests for which they have banded together that requires their proceedings to be privileged.14 If Adams did not fully articulate the modern theory, he at least saw the significance of the relationship which underlies it more clearly than did the 19th-century judges.
Although a general verdict and the lack of any record of the court's charge make it impossible to know the precise legal bases of the decision in Pierce v. Wright, the result would indicate that Adams' arguments were not accepted.15 With the notion of privilege based on common interests still undeveloped in England, it is not surprising that a Massachusetts court should reject a defense based upon it. That the analogy to judicial and legislative privilege also failed suggests that, to the 18th-century judges and jury at least, the “established” church was not so much a creature of the state that its deliberations had the character of public proceedings.
1. For an example of the establishment charge, see Jacob C. Meyer, Church and State in Massachusetts from 1740 to 1833 1–31 (Cleveland, 1930). As to the force and effect of Congregational autonomy, see Edmund S. Morgan, The Puritan Dilemma 76–82 (Boston, 1958). For the doctrinal problems, see Perry Miller, The New England Mind: From Colony to Province (Cambridge, Mass., 1952). The diversity of Congregationalism has most recently been expounded by Clifford K. Shipton in his paper, “The Locus of Authority in Colonial Massachusetts,” delivered at the Conference on Colonial History, April 1964, published in George A. Billias, ed., Law and Authority in Colonial America: Selected Essays (Barre, Mass., in press). Mr. Shipton goes somewhat further in exculpating Massachusetts than would the present editors. See No. 37. Autonomy was recognized in the first statute creating an “establishment.” See id., note 2. The Act of 4 Nov. 1692, c. 26, §3, 1 A&R 62, provided “That the respective churches in the several towns within this province, shall at all times hereafter, use, exercise and enjoy all their privileges and freedoms respecting divine worship, church order and discipline, and shall be encouraged in the peaceable and regular profession and practice thereof.” For a list of Deacons and members of the Wilmington church, see Articles of Faith and Covenant, Ecclesiastical Principles, Standing Rules, and List of Members, of the Orthodox Congregational Church, Wilmington, Mass. 16–20 (Woburn, Mass., 1857). See also Daniel P. Noyes, Historical Addresses Delivered in the Meeting-House of the Church of Christ in Wilmington, Mass., Sept. 25, 1880 (Boston, 1881).
2. See copies of the award and various depositions in SF 147706. As an instance of the other arbitrators' understanding, the deposition of John Richardson, sworn in the Charlestown Inferior Court, 16 March 1768, records that after the award was read,
“Mr. Chandler the other Arbitrator went into the Kitchin and gave Mrs. Hebberd the Wife of the above said Zacheus a slap on her Knee and said are you affronted Mrs. Hebberd. She answered, no I am not affronted at you, but Bowin has run away with all my Husband's Winter's Work and his own too, he has got all the Ship Timber and most of the Coal. Said Chandler answered and said your Husband has got the Plank and the Crop clear and she answered and said what are the Plank, them are but a Trifle.” Ibid.
3. No detailed account of the proceedings before Justice Johnson has survived. The nature of Pierce's testimony has been deduced from the declaration (Doc. I) and from conflicting statements in the depositions of witnesses favorable to one or the other of the litigants. SF 147706.
4. The complaint is set out in full in the declaration (Doc. I). A copy of the original document appears in SF 147706. See also deposition of Mary Tucker, Wilmington, 29 Feb. 1768. Ibid.
5. As to the church meeting, see the declaration (Doc. I), and the testimony of various witnesses, text at notes 14–1620–23 below. Pierce's demand is in SF 147706. The church ultimately postponed consideration of the matter until after the resolution of the civil suit. See note 420 below. As to the jurisdiction of the church in such matters, see Emil Oberholzer, Delinquent Saints 172–185 (N.Y., 1956). See also Haskins, “Ecclesiastical Antecedents of Criminal Punishment in Early Massachusetts,” 72 MHS, Procs. 21 (1957–1960).
6. The formal parts of a declaration in libel or slander were the inducement, a prefatory allegation of the plaintiff's reputation and surrounding circumstances; the colloquium, an allegation that the defamation was “of and concerning the plaintiff”; the statement of the defamatory matter and its publication; the innuendoes, allegations which pointed out expressly the defamatory meaning of the remarks; and the damages resulting from the defamation. See 1 Chitty, Pleading 381–383, 385; 2 id. at at 304–313.
7. See the pleadings and Inferior Court judgment in SF 147706. JA's Dockets for the Middlesex Inferior Court, Nov. 1767 and March 1768, show that he was retained by Wright. Adams Papers, Microfilms, Reel No. 182. See also note 217 below. For the Superior Court proceedings, see Min. Bk. 88, SCJ Cambridge, Oct. 1768, C–7, C–11; Charlestown, April 1769, C–7, C–8. SCJ Rec. 1769, fols. 42–44. Pierce was awarded further costs in Wright's appeal of £2 3s. 0d. As to the motion in arrest of judgment, see No. 3, note 10.
8. See note 217 below.
9. The Platform, although not formally binding, remained the primary instrument of church government until well into the 19th century. See Edward Buck, Massachusetts Ecclesiastical Law 76–78 (Boston, 1866); Williston Walker, The Creeds and Platforms of Congregationalism 157–188 (N.Y., 1893); Avery v. Inhabitants of Tyringham, 3 Mass. 160, 165, 170, 182–183 (1807). JA's citations appear at notes 10-1626–32 below.
10. See note 1834 below.
11. See Fowler V. Harper and Fleming James Jr, The Law of Torts, 1:419–430, 442, 450–456 (Boston, 1956); Annotation, 63 A.L.R. 649 (1929); Oberholzer, Delinquent Saints 244–245.
12. See Fifoot, History and Sources 134–136. For Lord Mansfield's formulation, see Hargrave v. LeBreton, 4 Burr. 2422, 2425, 98 Eng. Rep. 269, 271 (K.B. 1769). Dictum became holding in Mansfield's decision in Weatherston v. Hawkins, 1 Term Rep. 110, 99 Eng. Rep. 1001 (K.B. 1786).
13. See M'Millian v. Birch, 1 Binn. (Pa.) 178 (1806); Jarvis v. Hatheway, 3 Johns. (N.Y.) 180 (1808); Remington v. Congdon, 2 Pick. (Mass.) 310 (1824). The criminal libel case relied upon in these opinions was King v. Hart, 1 W. Bl. 386, 96 Eng. Rep. 218 (K.B. 1762). This decision may have been available to JA in 1768, although Sir William Blackstone's Reports were not published until 1781. 1 Sweet and Maxwell, Legal Bibliography 293. The case was reported in slightly different form in Richard Burn, Ecclesiastical Law, 2:175–178 (London, 2d edn., 1767). The “quasi-judicial” character of church disciplinary proceedings was relied upon to support the privilege in John Townshend, A Treatise on the Wrongs Called Slander and Libel 376–378 (N.Y., 2d edn., 1872). An earlier English treatise equated the privilege granted to church proceedings with that for “confidential communications of friendship,” and all “charges as necessarily exclude the suspicion of malice.” The only case cited was King v. Hart, above. See Francis L. Holt, The Law of Libel 226–228 (London, 2d edn., 1816).
14. 1 Harper and James, Torts 442.
15. It is possible that the court accepted the privilege argument but found that privilege here was defeated by malice. The facts do not support such a finding, however, and there is no indication that the question was argued. Moreover, JA's suggestion that the remedy for abuse lay in the hands of the church indicates that this aspect of qualified privilege was not recognized. For a much earlier Massachusetts case in which there was a verdict for the plaintiff in a suit for slander in church proceedings, the defense of privilege apparently not having been raised, see Mansfield v. Hathorne and Longley v. Hathorne, 3 Essex Quarterly Court Records 24, 30 (Essex Co. Ct. 1663), in Mark DeWolfe Howe, Readings in American Legal History 133–137 (Cambridge, Mass., 1952).

Docno: ADMS-05-02-02-0003-0001-0002

Author: Pierce, Deacon Thomas
Date: 1767-11

Thomas Pierce's Writ and Declaration1

Middlesex Inferior Court, Charlestown, November 1767

[salute] To the Sheriff of Our County of Middlesex, his Under-Sheriff or Deputy, Greeting.

WE Command you that you summon Samuel Wright of Wilmington in our said County Yeoman (if he may be found in your Precinct) to appear before Our Justices of Our Inferior Court of Common Pleas { 25 } to be holden at Charlestown within and for Our said County of Middlesex on the last Tuesday of November next, Then and there in Our said Court to answer to Thomas Peirce of Wilmington aforesaid Gentleman in a Plea of Trespass on the Case for that whereas the Said Thomas is and from his Nativity has been a Person of good Name, Fame and Reputation and free from the atrocious Crimes of false Swearing and Perjury, and by his pious and virtuous Behaviour had so far obtained the Esteem and good opinion of the Church of Christ in Wilmington aforesaid as to have been received and to have continued for the Space of fifteen years last past a Member in full Communion with the said Church and also had so far obtained their Esteem and good Opinion as that in the month of February A. Dom. 1766 he was elected and appointed one of the Deacons of the Same Church in which office he has ever since continued; Nevertheless the said Samuel, not ignorant of the Premises, but maliciously minding and contriving to injure the said Thomas in his good Name, Fame and Reputation and to deprive him of the Esteem and good opinion of the Members of the same Church and of all the other Churches of Christ throughout this and the neighbouring Provinces and thereby to deprive him of the Benefits and Comforts of the holy ordinance of the Lords Supper and also to expose the said Thomas to the Pains and Penalties by Law appointed for those who are guilty of wilfull and corrupt Perjury, did on the tenth Day of October instant at Wilmington aforesaid make and publish the following false defamatory scandalous and malicious Libel of and concerning the said Thomas, Vizt.,
“To the Reverend Mr. Isaac Merrill Pastor of the Church of Christ in Wilmington, please to communicate the following Complaint of me the Subscriber against our Brother Deacon Thomas Peirce a Member of the Church in this Place, Vizt: For that I heard the said Thomas Peirce when under the Solemn Oath of God administered by Mr. Justice Johnson about the middle of September last, say and solemnly declare Things contrary to Truth and contrary to his holy Profession, and as I apprehend dishonorary to God and Religion, as I understand the Matter. I also say that I have proceeded with him according to the Gospel Rule; but can obtain no Satisfaction; Wherefore I remain uneasy and dissatisfyed with our Said Brother; Therefore [I] desire that the Church of Christ in this Place may have an opportunity to hear and inquire further into the matter as the Gospel requires as soon as conveniently may be. Samuel Wright. Wilmington October 10th, 1767.”
Meaning that he the said Samuel had heard the said Thomas commit { 26 } wilfull and corrupt Perjury in a Tryal of a Cause wherein one Zacheus Hibberd was Plaintiff and one Jeremiah Bowen was Defendant at a Court held about the middle of September last before Josiah Johnson Esq. a Justice of the Peace for the County aforesaid, being a Court of Record, and that he the Said Thomas had refused to make Christian Satisfaction therefor when thereto required by the said Samuel, and that therefore he the said Samuel was dissatisfied and uneasy and desired the said Church would deal with the said Thomas according to the Rules prescribed in the Gospel with all convenient Speed.
And the said Samuel afterwards, to wit, on the eleventh Day of October instant at Wilmington aforesaid of his further Malice had against the Plaintiff and still further intending and maliciously contriving to injure that Plaintiff did, in the Presence and hearing of diverse of our leige Subjects being members of the Church of Christ aforesaid with a loud Voice speak and publish the following Words, Vizt: “I” (meaning the said Samuel) “meant thereby” (Speaking of and meaning the Libel aforesaid) “to charge him,” (meaning the said Thomas) “with Perjury.”
By means of which Libel so made and published by the said Samuel as aforesaid, and by the Means of the Words spoken and published by the said Samuel as aforesaid the said Thomas has sustained great Injury in his good name, Fame and Reputation and has been and yet is exposed and in Danger of being deprived of the Blessings, Benefits and Comforts of Church Communion and the holy ordinance of the Lords Supper and has been and yet is exposed to the Infamy and Disgrace of being degraded from his said Office of Deacon of the Church aforesaid and of being excommunicated or Suspended from Communion with all and every of the Churches of Christ thro' the Land and has been and still is exposed to the Pains and Penalties of the Law for Perjury, from all which he has suffered grievous Pain and Anxiety of Mind and has been compelled to expend divers Sums of Money to manifest and make known his Innocence in the Premisses.
All which is To the Damage of the said Thomas as he saith the Sum of five hundred Pounds, which shall then and there be made to appear, with other due Damages; And have you there this Writ, with your Doings therein. Witness Samuel Danforth Esq; at Cambridge the twenty sixth Day of October In the eighth Year of Our Reign, Annoque Domini, 1767.
1. Copy on a printed form in the hand of Thaddeus Mason, Clerk of the Inferior Court. SF 147706. The caption, return, subsequent pleadings, and attestations are omitted.

Docno: ADMS-05-02-02-0003-0001-0003

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Trial and Notes for His Argument1

Middlesex Inferior Court, Charlestown, March 1768

Pierce vs. Wright.
Action of slander. Not directly charging Perjury.
Things contrary to Truth and contrary to his holy Profession. Dishonorary to God, and Religion. I mean to charge him with Perjury.3
Buck. Charge in Writing. Mr. Morrill said the Charge was Perjury. Gave a Jogg. Let it go. I meant it so, and am able to prove it with several Aggravations. Ch[urc]h could not finish the Matter. Church did not refuse.4 Have done nothing. I took it he spoke to Mr. Merrill.
Captn. Walker. Wright said Charge must be read. If I understand Grammar you have charged Pierce with Perjury. I meant it so, and can prove it with several Aggravations.
Benja. Jaquith. Deposition. Vide.5
Joseph Lewis. Do you mean to charge him with Perjury or false swearing, or any thing of that sort. Answer, Yes, and I told them so yesterday.
{ 28 }
Moses Baron. Idem. Dont know but what Boin [Bowen] feed them.6 They did take a false oath.
Revd. Mr. Morrill. Delivered Copy to Pierce. Wright had been according to Gospell Rule.
Rich and Tucker. Satisfaction in a Christian Way.7
Sewall. Identicall Words unnecessary.
Words of same import as those in the Declaration. Same Reason, as Declaration on a Promise.
Q. Whether there is any such Thing as slandering a Man in the Church. Absurd Doctrine. Dangerous. The Worst Men may ruin the Characters of the best. And establishing Slander by a Law. Wreak Malice and Vengeance. Without are slanderers Lyars and Backbiters, not within. Should have been heard in the Church. What Right had the Church to try Perjury. Platform. All goes upon the supposition that the Charge is true, Q. about Writs, Petitions.
Sewall. Definition of Libells. Bacon. Written Scandal, held in greatest Detestation.8
Eg[o].9 The Question that is made is Whether there is any such Thing as slander in the Church?
Platform, Page 12, §2. Church Power is in the People.10
{ 29 }
Page 24, §3. This Government is a mixed one.11
Page 25, §5. The Prerogative or Priviledge of the Church, in Choosing officers, in Admission of Members. Case of offence, any Brother hath Power to convince and admonish, and to take one or two, and to tell the Church. Admonition or Excommunication.12
Page 27, §9. It belongs to Elders to receive Accusations brought to the Church and to prepare them for the Churches Hearing, and to pronounce sentence with the Consent of the Church.13
Page 39. Of Excommunication and other Censures.14
Page 40, §3. Offence public, of an heinous and criminal Nature.15
{ 30 }
Page 42, §8. Toleration of Profane and scandalous Livers, a great sin.16
In order to determine the Question, let us consider and enquire what a Church is? A Church is a voluntary society of Christians.17 Voluntary, because no Man is compellable to join with the Church. A society, a Body politick, framed for certain Ends. What are those Ends? Why their mutual Advancement in Knowledge, and their Growth in Piety and Virtue. Their Connexion is therefore spiritual, merely. No Concern with the Lives, Liberties, Estates or Reputations, of the Members any further than these have Relation to another, a future state. J[esus] Christ is the great Head and Law giver of his Church. And Kings, Princes Parliaments and Judicatories, have no Concern with them as Church Members. One End of Church society, and Government is mutual Watch and Jealousy over each other, mutual Advice, Admonitions Censures, and that all evil Examples may be suppressed. And the only Punishment they have in their Power is Admonition or Excission. Thus the fundamental Principle of Ecclesiastical Polity is that as every Member is a Volunteer, if he will not submit to their Rules he shall be cut off. Come into our Company if you are qualified and will continue to be qualified i.e. continue in the Faith and order of the Gospell, but We will have the Right to examine your Qualifications before we admit you, and We will also hold the Right of observing your Life and Conversation, and if that should become sinfull and scandalous, we will expell you, and if you are not willing to submit to this, dont join Us. The Candidate agrees to this, and takes the Covenant.
But when the Church assembles to admit and receive him, I say that every Church Member has a Right to object to him. And to give his Reasons. Now suppose a vicious Man should <assert> propound his Desires to come into full Communion. Would not the Church Members have a Right to go to the Minister and object, and to tell the Minister his objections. When the Church assemble would he not have a Right to tell the Church, that at such a Time he heard him tell a Lie, at such a Time he saw him drunk. At such a Time he heard him swear, and perjure himself. According to Mr. Sewall he would be liable to an Action of slander, if he did. If he is liable to an { 31 } Action will not this forever cutt off the Priviledge of Church Members to object to the Admission of new ones. It is the same after Admission. Every Member may complain again[st] every other. But says the Gentleman it will put it in the Power of the worst Men, to wreak their Malice and Revenge on the best? To this I answer, is it common for the worst Men to be Church Members! By no Means. Church Members are generally much more virtuous, and benevolent than others. It is not to be supposed that Churches will admit such malicious and revengefull Men to their fellowship. But if such an Instance should happen, that a wicked, malicious Man should deceive the Church, and be admitted, and should bring a [malicious?] and false accusation against his Brother, He must do it publickly. He cant propagate his malicious Whispers in secresy. It must come before the Church, and be examined, and the Complainant must prove his accusation, and if he cannot, but appears to have done it from a factious malicious Spirit, he will himself fall under the Censure of the Church. The accused will be honourably acquitted, and the Accuser will be censured. And is not a Church a Competent Judge? Is not the Vote of a Church, concerning a fact, as good, after Examining Proofs as the Verdict of a Jury? Juries try Perjuries, Forgeries, Murders, Treasons, Blasphemies, and why should not the Churches try the same?
Every Writing that contains a false Charge and Accusation vs. a Person is not a Libell. Writs and Declarations, Petitions to the General Court. Libel in the Spiritual Court.18
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The MS is undated, but appears in a leaflet with other cases from the court and term to which it has been assigned. The dating is supported by JA's docket entry which shows that he was retained by Wright for the Inferior Court trial and by the fact that the minutes record no argument by James Putnam, who was of counsel with Sewall in the Superior Court. See note 7 above. “Wright v. P[ierce],” the title of the companion action in the Superior Court (note 7 above) is written very faintly in JA's hand at the top of the first page, partly superimposed on “Pierce v. Wright,” the title printed here. This suggests the possibility that JA may have used the minute for reference in the Superior Court trial.
2. Jonathan Sewall, counsel for Pierce.
3. These three statements convey the sense of the defamatory words alleged in the declaration (Doc. I).
4. Presumably a reference to a decision of the church on 27 June 1768 to postpone consideration of Wright's charges “Till it be settled by the Court or between themselves.” SF 147706. In a much earlier Massachusetts case church and civil court arrived at contrary decisions that could not be reconciled. See Mansfield v. Hathorne and Longley v. Hathorne (Essex Co. Ct. 1663), cited in note 15 above.
5. See deposition of Benjamin Jaquith, sworn in the Inferior Court, Charlestown, 16 March 1768: “Benjamin Jaquith of lawful Age testifies and says that being in the Meeting House in Wilmington some time in October last, after the publick Services were ended, Samuel Wright exhibited a Complaint against Deacon Thomas Peirce, and that after said Complaint was read, the Revd. Mr. Merrill said, if it meant any Thing it was Perjury, the above said Samuel stood up and said let it go, so I meant to have it so and can prove it with several Aggravations.” SF 147706.
6. Thus in MS. The word is probably “fee'd,” i.e. paid a fee to. Bowen was one of the litigants out of whose dispute the problem arose. See text at notes 2, 3, above.
7. This is a reference to a communication from Pierce to Wright, dated 21 Oct. 1767, and witnessed by Thomas Rich and William Tucker:
“To Mr. Samuel Wright a Member of the Church of Christ in Wilmington, as you have laid a Sad Complaint against me the Subscriber, before this Church of which I also am a Member, and have charged me with a high Crime, as I apprehend without Foundation, upon which I am greatly dissatisfyed with you, I think I have a Right to Christian Satisfaction, and desire you would give it me before next Saturday night, otherwise you may expect I shall Seek after it in a Legal Way.” SF 147706.
8. See 3 Bacon, Abridgment 490 note:
“[A libel] is termed libellus famosus seu infamatoria scriptura, and from its pernicious Tendency has been held a public Offense at the Common Law; for Men not being able to bear having their Errors exposed to public View, were found by Experience to revenge themselves on those who made Sport with their Reputations; from whence arose Duels and Breaches of the Peace; and hence written Scandal has been held in the greatest Detestation, and has received the utmost Discouragement in the Courts of Justice.”
The query raised in the preceding paragraph may be JA's.
9. That is, the Latin “I,” signifying that what follows is JA's own argument.
10. This and the citations following through note 1632 below are references to the Cambridge Platform of 1648. See note 9 above. The edition of the Platform cited by JA has not been found. Quotations in this and the following notes are from Williston Walker's reproduction (N.Y., 1893) of the first edition, Cambridge, 1649. The passage here referred to is apparently ch. 5, §2: “
Ordinary Church powr, is either the power of office, that is such as is proper to the eldership: or, power of priviledge, such as belongs unto the brotherhood. The latter is in the brethren formally, and immediately from Christ, that is, so as it may according to order be acted or exercised immediately by themselves: the former, is not in them formally or immediately, and therfore cannot be acted or exercised immediately by them, but is said to be in them, in that they design the persons into office, who only are to act, or to exercise this power.” Walker, Creeds and Platforms 210.
11. Cambridge Platform, ch. 10, §3:
“This Government of the church, is a mixt Government (and so hath been acknowledged long before the term of Independency was heard of). In respect of Christ, the head and King of the church, and the Soveraigne power residing in him, and exercised by him, it is a Monarchy. In respect of the body, or Brotherhood of the church, and powr from Christ graunted unto them, it resembles a Democracy, In respect of the Presbytery and powr comitted to them, it is an Aristocracy.” Walker, Creeds and Platforms 217–218.
12. Cambridge Platform, ch. 10, §5:
“The power graunted by Christ unto the body of the church and Brotherhood, is a prerogative or priviledge which the church doth exercise: I, In Choosing their own officers, whether Elders or Deacons. II, In admission of their own members and therfore, there is great reason they should have power to Remove any from their fellowship again. Hence in case of offence any one brother hath power to convince and Admonish an offending brother; and in case of not hearing him, to take one or two more to sett on the Admonition, and in case of not hearing them, to proceed to tell the church; and as his offence may require the whole church hath powr to proceed to the publick Censure of him, whether by Admonition or Excommunication; and upon his repentance to restore him again unto his former communion.” Walker, Creeds and Platforms 218.
13. Cambridge Platform, ch. 10, §9:
“It belongs also unto the Elders . . . to receive the accusations brought to the Church, and to prepare them for the churches hearing. In handling of offences and other matters before the Church they have power to declare and publish the Counsell and will of God touching the same, and to pronounce sentence with the consent of the Church.” Walker, Creeds and Platforms 219.
14. The title of Cambridge Platform, ch. 14, in which the sections quoted in notes 1531 and 1632 below appear. Walker, Creeds and Platforms 227.
15. Cambridge Platform, ch. 14, §3:
“But if the offence be more publick at first, and of a more heinous and criminall nature, to wit, such as are condemned by the light of nature; then the church without such graduall proceeding, is to cast out the offender, from their holy communion, for the further mortifying of his sinn and the healing of his soule, in the day of the Lord Jesus.” Walker, Creeds and Platforms 227–228.
The preceding section dealt with private offenses, providing essentially the procedure for dealing with them which was set out in ch. 10, §5 (note 1228 above). Id. at 227.
16. Cambridge Platform, ch. 14, §8: “The suffring of prophane or scandalous livers to continue in fellowship, and partake in the sacraments, is doubtless a great sinn in those that have power in their hands to redress it; and doe it not.” Walker, Creeds and Platforms 229.
17. This and the following sentences are a paraphrase of the famous passage from Locke's Essay on Toleration, part of which is quoted in No. 37, note 831.
18. This paragraph seems to be based on 4 Bacon, Abridgment 499–500, a section which sets out various cases holding that no action lies for defamatory words contained in pleadings or other proceedings in court or in petitions to Parliament. The section includes this abstract of Westover v. Dabbinet, 1 Rolle, Abridgment 33:
“A. libels [i.e. commences an action] in the Spiritual Court against B for Defamation, and produces C. as a Witness. Hereupon B. makes an Allegation in Writing, as the Course of that Court is, that C. who was perjured in a Cause between E. and F. at the Assizes at G. ought not to be received as a Witness. Although this Allegation is false, yet, as the Court had Jurisdiction in the original Matter, C shall not have an Action against B. for, if he might, it would prevent the Detection of bad Witnesses.”
The case is also reported as Weston v. Dobniet, Cro. Jac. 432, 79 Eng. Rep. 369 (K.B. 1618).

Docno: ADMS-05-02-02-0003-0002-0001

Editorial Note

The Province Charter of 1691 provided that there should be “a liberty of Conscience allowed in the Worshipp of God to all Christians (Except Papists)” who inhabited Massachusetts. Despite these bold if less than all-embracing words, the faith of the founding Puritans constituted the “establishment” of the province. It continued as such beyond the time of independence and well into the 19th century.1 As the discussion in Pierce v. Wright, No. 36, suggests, however, the term “establishment” is here used in a rather special sense. Local autonomy meant that Massachusetts had neither an established religion nor quite an established church.
Nevertheless, there were established churches. Within each town in the Province at least one church or congregation—generally Calvinist in doctrine and congregational in polity—was entitled under the existing laws to receive special favors from the government. Statutes provided financial and other support for the church with which a majority in each “town or place” was affiliated. That majority in almost every case subscribed to doctrines which, however variant, had enough in common to occupy the broad theological center which was Congregationalism. Dissenters to the left and right might worship as they chose, but they were rarely in a position to receive the kind of state sanction and assistance accorded to the Congregational churches. Moreover, despite exemption acts, they had to battle constantly to avoid contributing to support the established order.
The principal dissenting denominations in 18th-century Massachusetts were the Episcopalians, the Quakers, and the Baptists. All three fought establishment actively, but after about 1750, the Baptists were its chief { 33 } opponents. Green v. Washburn is an example of the varied litigation which their struggle produced.
Barely a year after the promulgation of the Charter, the basic principle of establishment was laid down by statute. “Able, learned, orthodox” ministers “of good conversation,” approved by a majority of the church-going voters in a “town or place” were to be supported by taxes levied upon all of the inhabitants. If a town was delinquent in providing itself with such a minister, the Court of General Sessions for the county could “take effectual care to procure and settle a minister qualified as aforesaid, and order the charge thereof and of such minister's maintenance to be levied on the inhabitants of such town.”2 A dissenter was free to support his own church as well, but if he did so he paid twice.
In 1724 the Privy Council ordered the remission of part of the province tax intended to support Congregational ministers in two towns in which a majority of the inhabitants were Quakers. This decision was itself of narrow effect, but the dissenters pressed the attack, perhaps inspired by the Board of Trade's position that the tax in question was contrary to the Charter.3 At length, in 1728, having previously granted { 34 } Episcopalians the right to have their taxes paid to their own pastors in certain cases, the General Court passed legislation relieving Quakers and Baptists (or “Anabaptists” as they were called) from taxes “assessed for the support of the minister or ministers of the churches established by the laws of this province.” Eligibility for exemption was first determined on the basis of attested lists of those who attended meeting and professed themselves Baptists or Quakers, which were to be furnished by principal members of the denominations in each town. A re-enactment in 1734 provided that lists of exempt Baptists were to be prepared by the town assessors, but omissions could be supplied on the certificate of “two principal members of that perswasion” that they believed omitted persons “to be conscientiously of their perswasion, and that they do frequently and usually attend their meetings for the worship of God, on the Lord's Day.”4
{ 35 }
After the Great Awakening of the 1740's had left an irremediable split within Congregationalism, problems in the administration of these laws increased. The “New Lights,” who had supported the revivalist movement, in many cases formed Separate churches and sought the same tax relief that had been given earlier to the dissenting sects; but the “Old Lights,” and those New Lights who continued to support the established order, resisted, apparently finding outright dissent easier to tolerate than Separatism. The inspiration of the Great Awakening had also produced a division in the Baptist ranks between the old General Baptists with their Arminian beliefs and New Light Baptists, who adhered to the strict Calvinism of the revival. With doctrinal differences few, many Congregational Separates became Baptists, forming for themselves, or joining New Light Baptists in, what came to be called Separate Baptist churches. This development brought forth from the Standing Order and from unconverted Separates alike the charge that the converted ones had had themselves “dipped to wash away their taxes.”5 The criteria for determining who was a Baptist took on a new importance as this sudden growth in what had theretofore been a static and relatively innocuous minority began to threaten both the doctrinal and the financial stability of the established churches.
To meet the situation the General Court tightened the exemption laws, requiring in an Act of 1753 that a Baptist's certificate of faith and attendance was to be given by the minister of his church, as well as by two principal members, all of whom had to be vouched for in turn by three other Baptist churches.6 The latter requirement, which had proved most { 36 } obnoxious to the Baptists, was eliminated in 1758 when a statute was enacted to replace all previous exemption acts for Baptists and Quakers, which had by then expired. The new measure carried forward the exemption in terms similar to those of previous acts, but provided that no person was to be “esteemed or accounted an Annabaptist” unless his name appeared on a list given to the assessors over the certificate of the minister and three principal members of his church to the effect that all those on the list were “really belonging thereto, that they verily believe them to be conscientiously of their perswasion, and that they do frequently and usually attend the publick worship in such church on the Lord's day.” The first-quoted clause apparently added actual church membership to the requirements under earlier law.7
Since the assessors were often hostile toward those seeking exemption, these provisions produced much dispute and consequent litigation. A detailed study of this litigation based upon court records has yet to be made and cannot be undertaken here. Secondary sources and the documents in a few cases in which John Adams was involved indicate that the usual suit was one brought by the dissenting taxpayer against the town officials who had either collected the tax from him or had had his goods or body taken by way of distress. These suits seem to have turned principally on the questions whether the plaintiff's eligibility for exemption was made out by his certificate, and whether the certificate itself was executed in proper form. And procedural points, common to all litigation in Massachusetts, were often present to cloud the issue.8
{ 37 }
Although larger questions of fundamental rights may have been raised in argument, these cases can hardly be said to have adjudicated any such { 38 } issues. The famous controversy concerning the Baptists of the town of Ashfield did seem to resolve more basic questions, but resolution took place on a level higher than that of the courts of the province. The earlier exemption acts had provided that the exemption should not “extend to new towns, granted upon condition of settling an orthodox minister and erecting a house for the public worship of God, till such time as those things are accomplished.”9 This provision was omitted from the 1758 exemption act, but since that statute applied to taxes levied in a “town, district, precinct, or parish,”10 the practice under the former act of denying exemption in unincorporated “plantations” was apparently continued. After the plantation of Huntstown was “erected into a town by the name of Ashfield” in 1765, indeed, the proprietors continued to assess ministerial taxes against all, regardless of religion.11 When the Baptists sought legislative relief, they were met with a special act which only strengthened the proprietors' position, providing that the taxes should be levied against every part of each proprietor's right, “in whose hands soever the same may be,” and that the lands of delinquents might be sold to pay the tax.12
{ 39 }
Despite more petitions, the Baptists' lands were sold in 1769 for nonpayment of the tax. The conflict which then arose brought forth a full range of the kind of argument on religious toleration and human rights with which today such controversies are customarily clothed.13 The General Court remained unmoved, but in 1771 the Ashfield Act came before the Privy Council and was disallowed. While the exact grounds of this decision are unknown, it in effect adopted a Board of Trade recommendation based on a broadly worded finding that “This Clause, whereby all persons of whatever sect or persuasion in religion, occupying Lands in this Township are equally and indiscriminately taxed for the support of the Independent Church therein established, is in our opinion equally unusual and unreasonable particularly in the case of the Sect commonly called the Antipedobaptists.”14
Perhaps as important to the Baptist churches as the right of their membership to freedom from ministerial taxes was the right of their ministers to the privileges and immunities of the established clergy. An act of 1760 provided that no assessments could be levied for the support of a minister who did not have either a suitable formal education, or the testimony of a majority of the clergy in his county that his learning was sufficient.15 Baptist ministers apparently both lacked the requisite learning and experienced great difficulty in obtaining the necessary support among { 40 } their Congregational counterparts. As a result, in one well-known case, even though the majority in the town of South Brimfield were Baptists, they were not allowed to apply their taxes to the support of a minister of their own persuasion.16
A further problem was the status of the ministers themselves as taxpayers. The annual acts which authorized the towns to assess and levy province, county, and town taxes exempted a long list of persons, including “settled ministers.” In 1762, early in the Ashfield controversy, the town assessors, themselves Baptists, had applied this exemption to their minister, Ebenezer Smith. According to a later report by Smith and one of the assessors, a taxpayer complained to the Hampshire County Court of General Sessions that he had been “overrated.” The assessors were summoned and on the trial in May 1762, the court “would not suffer [them] to bring any Proof of the said Ministers Settlement neither by Certificate nor by living Evidence and said that if they should prove his Ordination yet he should not be free paying Taxes. And in the Conclusion cast 4 pounds lawful Money Charges on the two Assessors,” denying them an appeal to the Superior Court on the grounds that no appeal lay in such a case.17
These problems of ministerial status were at least partially resolved by Green v. Washburn. Nathaniel Green, pastor of what was known as the Second Baptist Church in Leicester, had been ordained a minister in October 1763, at which time he took charge of his congregation, which had gathered only the year before. Green's church first met in Spencer, but soon moved to the western part of Leicester. Perhaps because of its pastor's experiences, to be related, the church joined the newly formed Warren Association in 1768 and thus became part of the organized Separate Baptist movement for the attainment of religious liberty.18
{ 41 }
In December 1767 when Seth Washburn and others, the assessors of Leicester, had levied the province, county, and town taxes upon Green, he had refused to pay. Accordingly, in February 1769, his body was taken in distress by the constable, and he was held in custody for several hours until he paid the tax. At the May 1769 Worcester Inferior Court, with John Worthington as his attorney, Green brought suit against Washburn and the other assessors in an action of the case, alleging that, knowing of his status as a settled minister, they had illegally assessed him, and had ultimately procured his arrest. Adams, for the assessors, entered a plea of not guilty, and the case went to trial.19
Adams' minutes of the trial (printed below) suggest that he relied largely on the language of Province statutes dealing with the ministry to define the term “settled minister” in the tax act. The earliest statutes could be read to mean that only those “able, learned and orthodox” ministers who had been approved by a majority of the voters in a town and were to be supported by all of the town's taxpayers were “settled.” The act of 1760, already referred to, seemed to add the further requirement of education, or at least ministerial approval. In contrast, the only Act which dealt with the qualifications of a Baptist minister required that for him to certify members of his church to the tax assessors he need have only certificates attesting to his faith from three other Baptist churches.20 James Putnam, who joined Adams, elaborated upon this theme in a brief but notable address which seemed to sum up all the contempt of the Harvard-bred establishment for the rude and argumentative religion of the Baptists.
Worthington, citing Locke, argued for a broader construction of the tax act, urging that it covered any man chosen by his flock as a minister. Witnesses testified as to Green's ordination and the size and continuing existence of his church. Despite other testimony apparently intended to show that, even among Baptists, Green's was merely a splinter group not entitled to recognition as a church, the jury brought in a verdict for the plaintiff of £2 and costs.21 On appeal to the Superior Court in September 1769, with Adams no longer involved in the case, Green won again, although his recovery was reduced to£1 13s. 6 1/2d., the amount of the tax, and costs.22
{ 42 }
If no great constitutional pronouncement came out of this case, the principle which it announced was nevertheless considered an important one. In his Church History of New England, Isaac Backus, a leading figure in the Warren Association and a participant in many such battles, capped his account of the storms of the 1760's by reporting that “one thing that gave check to oppression was a determination of authority, that the ministers of the Baptist Churches were lawful ministers, so as to have a right to marry people, and to be exempted from civil taxes.” This “determination” took place in two Superior Court decisions, one of which was Green v. Washburn.23
1. For the 1691 Charter provision, see 1 A&R 14. As to its construction, see Susan M. Reed, Church and State in Massachusetts, 1691–1740 21–23 (Urbana, Ill., 1914). The nature of the problem was altered after independence by the terms of the Declaration of Rights in the Massachusetts Constitution of 1780, which, in requiring the legislature to make the towns provide “for the public worship of GOD,” allowed taxes paid by an individual who so requested to “be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends.” Declaration of Rights, Art. III, in Robert J. Taylor, ed., Massachusetts, Colony to Commonwealth 128–129 (Chapel Hill, N.C., 1961). For cases and other materials on the gradual decline of the establishment under this provision and its abolition by constitutional amendment in 1833, see Mark DeWolfe Howe, Cases on Church and State in the United States 27–54 (Cambridge, Mass., 1952). See also Edward Buck, Massachusetts Ecclesiastical Law 39–65 (Boston, 1866); Jacob C. Meyer, Church and State in Massachusetts from 1740 to 1833 90–200 (Cleveland, Ohio, 1930); Butterfield, “Elder John Leland, Jeffersonian Itinerant,” 62 Amer. Antiq. Soc., Procs. 155, 207–215 (1952); Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw 29–42 (Cambridge, Mass., 1957).
2. Act of 4 Nov. 1692, c. 26, 1 A&R 62, as amended by Act of 17 Feb. 1693, c. 46, §§8–11, 1 A&R 102–103. The latter act was made expressly inapplicable to Boston, where ministers had always been supported by voluntary contributions. Id., §9; see Reed, Church and State in Mass. 38. Parts of both acts are set out in notes 225 and 326, below. The Act of 13 June 1695, c. 8, 1 A&R 216, provided that a council of ministers called by the church might overrule a town's rejection of the church's choice. Later acts permitted ministerial taxes to be raised in precincts set off for church purposes from existing towns. Act of 9 Nov. 1702, c. 10, §2, 1 A&R 506; Act of 24 Dec. 1732, c. 14, 2 A&R 306. The Act of 19 June 1718, c. 1, 2 A&R 99, permitted taxes to be levied for the construction and repair of meeting houses in precincts. Presumably such taxes were levied in towns under their general power to levy taxes “for the defraying of other necessary charges.” Act of 16 Nov. 1692, c. 28, §6, 1 A&R 66. Another provision strengthened the power of the Court of Sessions by authorizing it to appoint assessors in delinquent towns or districts and to direct the grand jury to investigate conditions in such communities. Act of 9 Nov. 1702, c. 10, §1, 1 A&R 505. If the towns remained recalcitrant, the General Court was empowered to settle a suitable minister and provide for his maintenance. Act of 14 Nov. 1706, c. 9, 1 A&R 597; Act of 20 Dec. 1715, c. 17, 2 A&R 26, extended to May 1730 by Act of 5 July 1722, c. 4, 2 A&R 244. As to all of this legislation and its enforcement, see Reed, Church and State in Mass. 24–34, 50–85. Despite these provisions, in a few instances where dissenters were in the majority in a town, they were permitted to treat their church as the established one, thus gaining the benefit of the tax collection process. See id. at 70–73; Shipton, “The Locus of Authority in Colonial Massachusetts,” in George A. Billias, ed., Law and Authority in Colonial America (Barre, Mass., in press). After 1760 the requirement that ministers have the equivalent of a college education provided a further basis for opposing this practice. See notes 15, 16, 327, below. Although the Privy Council held certain applications of the establishment acts invalid (notes 3 and 14 below), the basic principle of establishment embodied in the acts of 1692 and 1693 was upheld by the Crown law officers against an attack based on the charter clause in 1732. See 2 A&R 477–484; Reed, Church and State in Mass. 183–184.
3. On the 1724 decision, see Reed, Church and State in Mass. 75–78, 119–127. The General Court had acted under the Act of 20 Dec. 1715, note 2 above. The tax act in question, the Act of 3 July 1722, c. 8, §1, 2 A&R 251, 254–255, had not provided on its face that the assessments were intended to support ministers, although the Quakers presented evidence that this was its effect. The Board of Trade in its report of 20 Dec. 1723 to the Privy Council thus did not recommend disallowance, but pointed out that taxing the majority to support the minority's minister was not consistent with the Massachusetts Charter's grant of an “absolute and free liberty of conscience for all Christian Inhabitants there, except Papists.” 2 A&R 276. The tax act for the next year, Act of 29 June 1723, c. 8, §1, 2 A&R 293, 296, contained an express statement of the purpose of the assessment. The Board of Trade, on 6 May 1724, recommended disallowance of this act, urging both the Charter clause and an inconsistency with the establishment statutes, in which it was “laid down as a just and equitable rule that the majority of each Town or Congregation shou'd have the choice of their own Teacher.” 2 A&R 277. The Privy Council, in its Order of 2 June 1724, granted relief only under the 1722 act and did not disallow it. Ibid.; see 3 Acts, Privy Council (Col.) 58–59. Other materials concerning the case, which pertained to Dartmouth and Tiverton, are collected in 2 A&R 269–277.
4. The Episcopalian relief measure was the Act of 19 Dec. 1727, c. 7, 2 A&R 459, which provided that members of the Church of England should be taxed at the same rate as members “of the churches established by the laws of this province,” but that if there were a minister of the Church of England within a town, taxes assessed against inhabitants who worshipped with him and lived within five miles of the church were to be paid over to him by the town treasurer. They were also exempt from meetinghouse taxes. For the problems of Episcopalians generally, and subsequent legislation concerning them, see Reed, Church and State in Mass. 141–143, 148–189; Meyer, Church, and State in Mass. 14, 27–30, 69–89. The Act of 20 June 1728, c. 4, §1, 2 A&R 495, exempted from tax the polls of Baptists and Quakers “enrolled or entred in their respective societies as members thereof, and who alledge a scruple of conscience as the reason of their refusal to pay any part or proportion of such taxes as are from time to time assessed for the support of the minister or ministers of the churches established by the laws of this province in the town or place where they dwell,” with the proviso that they attend “meetings of their respective societies” regularly and live within five miles of the meetinghouse. The provision for determining eligibility for exemption was in id., §3. Persons so exempted were barred from voting on church questions in town meeting. Id., §5. See note 7 below. By Act of 20 Dec. 1729, c. 6, 2 A&R 543, the estates of Baptists and Quakers were exempted under the same conditions. For the passage of this legislation, see Reed, Church and State in Mass. 128–135. After the expiration of these acts, separate measures were passed for Quakers until 1758. See id. at 135–144; Meyer, Church and State in Mass. 15–17. The exemption for Baptists “who alledge a scruple of conscience” was continued and extended to taxes for the construction of meetinghouses, by Act of 4 July 1734, c. 6, §1, 2 A&R 714. The certificate provision for determining exemption was in id., §2. It was superseded in 1753. See note 6 below. The 1734 act omitted the five-mile requirement, but provided that the exemption did not apply in “new towns.” See text at note 9 below. This statute was re-enacted in virtually identical form by Act of 30 June 1740, c. 6, 2 A&R 1021, renewed until 1757 by Act of 29 June 1747, c. 6, 3 A&R 362. For the Baptists' account of the passage and implementation of all of this legislation, see Petition of a Committee of Baptists to the General Court, 29 May 1754, 4 A&R 122–126. See also Reed, Church and State in Mass. 132–135, 141–143.
5. Quoted in Meyer, Church and State in Mass. 36. See also id. at 18; C. C. Goen, Revivalism and Separatism in New England, 1740–1800 213 (New Haven, 1962). Mr. Goen argues convincingly that this charge was largely unfounded, since in some communities even unquestioned Baptists were not able to take advantage of the exemption acts, and where this was not the case many Separates hesitated to become Baptists precisely because of the material advantage. Even the sources which he quotes, however, show that adoption of Baptist principles was urged by some “as the way God had opened to escape such sufferings [i.e. ministerial taxes].” Id. at 213–215. It is clear, however, that there were many other factors—doctrinal as well as practical—which influenced conversion. Id. at 208–257. As to the Great Awakening and its effect generally, see id. at 34–67, 206–207, 272–275, 285–287 and throughout; see also Meyer, Church and State in Mass. 20–47. For an example of a typical transition from Standing Church to Separate to Separate Baptist, see note 932 below.
6. Act of 5 Jan. 1753, c. 15, §§1, 3, 3 A&R 644, quoted in part in note 528 below.
7. Act of 25 Jan. 1758, c. 20, §§1, 3, 4 A&R 67–68, renewed to 30 Jan. 1771 by Act of 31 Jan. 1761, c. 21, 4 A&R 420. As to the construction of this act, see note 8 below. The 1758 act did not contain the provisions of earlier measures (note 4 above) that those exempted should be deprived of the vote on church matters and that the exemption should not apply in new towns. As to the former, see No. 31, note 511. As to the latter, see text at note 10 below. Subsequent legislation carried forward the exemption and certificate provisions, with the major variation that a town could vote to exempt Baptists and Quakers without regard to certificates. See Act of 20 Nov. 1770, c. 10, 5 A&R 111; Act of 16 June 1774, c. 6, 5 A&R 392. For Baptist objections to the 1753 act, see Petition of 29 May 1754, 4 A&R 122–126, discussed in Goen, Revivalism and Separatism 270–271. Although the 1753 act's requirement of certification by other churches (text at note 6 above) was not carried forward by statute after 1758, the practice seems to have been continued. The Baptists of Haverhill in John White's case (note 8 below) submitted to the assessors not only the requisite certificate of their pastor and elders, but certificates of the First and Second Baptist churches of Boston and James Manning's Warren, R.I., church that the Haverhill church had been received as “Breathern and Sisters of the same Denomination,” and that the pastor, Hezekiah Smith, was duly ordained and qualified. SF 131793.
8. For a discussion of many of the cases from the viewpoint of an active Baptist participant in the struggle, see Isaac Backus, A Church History of New England, 2:239–265, 277–282 (Providence, R.I., 1784), a continuation of Backus' A History of New England, With particular Reference to the Denomination of Christians called Baptists (Boston, 1777). Volume 3 of this work, also entitled A Church History of New England, was published at Boston in 1796. See also Meyer, Church and State in Mass. 51–68. JA was a participant in one of the best known of these suits, White v. Bartlett. John White, “shopkeeper” of Haverhill, sued Enoch Bartlett and Jonathan Webster, the town assessors, in trespass for £30 damages, alleging that they had taken from him goods and chattels valued at £16 12s. 8d. White won on demurrer in the Inferior Court, Ipswich, in March 1767, and on appeal to the Superior Court under an agreement stipulating “The trial of this appeal to be final,” won a verdict of £30 and costs at the Salem Nov. 1767 term. Min. Bk. 85, SCJ Essex, June 1767, N–11; Nov. 1767, C–19. White remitted £12 to the defendants, but they moved for a new trial on the grounds that the verdict was against law and the damages excessive. The new trial was granted, although the court, apparently paraphrasing English authority, noted that there were “Few new Tryals after a Tryal at Bar. Not to be taken out of the course of the Law.” SF 131793. Min. Bk. 85, SCJ Essex, Nov. 1767, C–19; Nov. 1768, C–7. See No. 12. On the new trial at Ipswich in June 1769 it was stipulated by the parties that the issues were limited to the legality of the town's actions, “The sufficiency and legallity of the appellees Certificate in the case (it being agreed that the Certificate was given in to the assessors before the first assessment was voted) and whether the appellee was Conscientiously of the Anabaptist persuasion.” SF 131793. With JA now appearing for White, the jury reversed the former judgment, awarding costs to the assessors. Min. Bk. 85, SCJ Essex, June 1769, C–3. Backus was incensed by this result, both on account of the technicality which was used to avoid the agreement that the first appeal would be final and by the fact that Baptists were not allowed to testify on grounds of interest. He reported that the ground for the decision was a ruling by the court that the law exempted only “a steady worshipper,” not “a baptized church member,” and that White's certificate did not state that he was the former. 2 Backus, Church History 241–242. Ezra Stiles, in a diary entry of 11 Jan. 1773, reported that in conversation Justice Peter Oliver of the Superior Court gave a slightly different reason: “By the old Law [i.e. pre-1770] the Baptists were to certifie themselves as to three things—that they were conscientiously Baptists—usual Attendants—and Members i.e. baptized by immersion and Communicants. Mr. Whites Certificate showed the two first, not the last; and for this Defect Judgment was given against him.” 1 Stiles, Literary Diary 333. Oliver's version is borne out by the certificate of the pastor and elders of the Haverhill church that White and fourteen others “are conscientiously of our Persuasion and that they do frequently and usually attend the Publick Worship with us on the Lord's Day.” SF 131793. That the content of the certificate was the issue, rather than the actual facts as to White's persuasion, is also suggested by the statutory language (text at note 7 above), which would seem to make the certificate conclusive. If the court found that it could look only to the certificate, despite the stipulation of the parties, then its ruling excluding the Baptists as witnesses may have been based merely on a finding that their evidence as to White's beliefs was immaterial. JA was of counsel in at least one other similar case, this time arguing for the successful assessors. See Taft v. Cragin, Min. Bk. 101, SCJ Worcester, April 1774, C–3. SF 152818. He appeared for the assessors also in Follansbee v. Pearson, a case in which a Newburyport Presbyterian was successful in claiming an exemption under an order of the General Court dating from 1752 which expressly exempted members of his society from tax, there being no general statute covering Presbyterians. Min. Bk. 85, SCJ Essex, Nov. 1767, N–11; June 1768, C–12; June 1769, N–8; Nov. 1769, C–11. SF 131661, 131867. In at least two cases involving the tax on members of the Church of England (note 4 above), JA appeared for the church. Richmond v. Walker, Min. Bk. 84, SCJ Taunton, Oct. 1770, N–4. SF 145564 (plaintiff discontinued after jury impaneled); Bass v. Knight, Min. Bk. 93, SCJ Essex, June 1773, N–9; Min. Bk. 102, SCJ Essex, June 1774, C–21; Min. Bk. 108, SCJ Essex, June 1780, C–3. SF 92148, 132321, 132714 (verdict for assessors; on review continued after special verdict until neither party appears).
9. Act of 4 July 1734, c. 6, §5, 2 A&R 715. The provision was carried forward in re-enactments and renewals of this act cited in note 4 above.
10. Act of 25 Jan. 1758, c. 20, §1, 4 A&R 67. See note 7 above. The Act of 4 July 1734, note 9 above, and its successors prior to the 1758 act applied to taxes levied on Baptists “in the town or place where they dwell.”
11. Act of 21 June 1765, c. 13, 4 A&R 815. §3 of this act provided
“That all taxes already raised for settling a minister, or that may be raised for his support, for building a meeting house, clearing and repairing roads, be levied on the several proprietors of said plantation, according to their interests, until the further order of this [i.e. the General] court; and that said inhabitants and proprietors of said town proceed by the same rules, in levying and collecting said taxes, as proprietors in new plantations are obliged, by law, to observe.”
The last clause presumably refers to the Act of 19 June 1753, c. 1, §2, 3 A&R 670, which provided machinery for the proprietors of undivided lands to assess proportionally their individual shares for the purpose of raising funds “for bringing forward and compleating the settlement of such common lands . . . and for carrying on and managing any other affairs for the common good of such proprieties.” That the proprietors considered this legislation a sufficient basis for taxing the Baptists and proceeded to do so appears in the complaints of the latter to the General Court in 1768 and 1769 set out in 4 A&R 1036–1037. A provision similar to that involved in the Ashfield controversy is found in other acts of incorporation passed at the same time. See Act of 21 June 1765, c. 14, 4 A&R 815 (Lanesborough); Act of 21 June 1765, c. 15, 4 A&R 816 (Charlmont).
12. Act of 24 June 1768, c. 5, 4 A&R 1015. Although the proprietors had proceeded to levy taxes under the 1765 act of incorporation, note 11 above, they had been aware of its ambiguities, since in March 1767 they had petitioned the General Court, reciting that the provision for levying taxes was “a clause of great uncertainty” and praying for an act to remedy the consequent difficulties. These appear to have been at least three: (1) the lack of any express authority to tax the Baptists; (2) the fact that many provisions of the statute governing meetings of proprietors of undivided lands (note 11 above) did not apply to lands that were actually within a township and had been laid out; (3) the fact that the Act of 6 March 1762, c. 44, 4 A&R 532, detailing the machinery for levying against unimproved lands, had expired on 1 April 1765. The first problem was met by the statutory language quoted in the text. To resolve the second it was provided that meetings were to be called in accordance with the Act of 25 March 1713, c. 9, 1 A&R 704, covering meetings of proprietors of common lands within a town, and that the provisions for levying and collecting taxes were applicable to lands “already laid out or agreed to be laid out.” Finally, the machinery of the 1762 act was expressly adopted.
13. See the various petitions and complaints of the Baptists in 1770 and 1771 in 4 A&R 1038–1045.
14. The Representation of the Lords of Trade, 31 May 1771, is set out in 4 A&R 1016, and in slightly different form in 5 Acts, Privy Council (Col.) 323–324. For the decision itself, see ibid.; 4A&R 1045. The memorial on which the Board of Trade acted asserted only that the Ashfield Act was contrary to the general exemption law, but the Board seems to have taken a broader position. It was not until 1774 that the complicated financial questions arising out of the Act's disallowance were resolved. See Act of 6 March 1773, c. 30, 5 A&R 228; Act of 9 March 1774, c. 24, 5 A&R 331. See also notes, 5 A&R 278–279, 371–375. On the controversy generally, see 2 Backus, Church History 246–261; Meyer, Church and State in Mass. 54–66. JA does not seem to have been directly involved in the dispute, but in 1774 as a member of the Continental Congress he felt the effects of the organized Baptist campaign for religious liberty of which the Ashfield matter was a part. Isaac Backus, James Manning, and other Baptist leaders, through the offices of Philadelphia Quakers, procured a meeting with the Massachusetts delegation at which the Ashfield case and other complaints were aired and the intolerance of the Massachusetts establishment was urged as an obstacle to colonial union. JA and his colleagues promised to have action taken on the matter at home, and the Massachusetts Provincial Congress accordingly resolved in favor of the Baptists. A committee of the General Court was appointed to bring in a bill, but the onset of revolution brought a postponement of such problems until after the end of hostilities. See 2 JA, Diary and Autobiography152–154 and sources there cited; 3 id. at 311–313; Meyer, Church and State in Mass. 92–95.
15. Act of 13 Feb. 1760, c. 24, 4 A&R 288, set out in part in note 427 below.
16. See 2 Backus, Church History 242–243. Compare 4 A&R 876. The minister involved was apparently James Mellen. 3 Backus, Church History 185.
17. Memorial of Ebenezer Smith and Reuben Ellis [1768], 4 A&R 1037. See also 2 Backus, Church History 246–247; note 23 below. The statute affording relief for an “overrated” taxpayer provided that he might complain to the General Sessions and be reimbursed whatever amount he was entitled to, “with the charges” (presumably costs of court) to be paid “out of the town or parish treasury.” The court had power “to require the assessors to produce the lists of their assessment.” Act of 3 Oct. 1730, c. 1, §7, 2 A&R 551. It is not clear whether the “charges” adjudged against the assessors here were merely costs of court, or were a reimbursement of the tax, perhaps assessed against them by analogy to §6 of the Act, which provided that assessors “failing of their duty” should themselves pay the sums which they were to have assessed.
18. As to the formation of Green's church, see note 932 below. Green (1721–1791) and his congregation moved again in 1772, this time to Charlton, where he remained pastor until his death. See generally 3 Backus, Church History 176; Estes, “Historical Discourse,” in The Greenville Baptist Church in Leicester, Massachusetts 56–57 (Worcester, Mass., 1889); Emory Washburn, Historical Sketches of the Town of Leicester 114–115 (Boston, 1860). As to the Warren Association, see David Benedict, A General History of the Baptist Denomination in America and Other Parts of the World 469–470 (N.Y., 1848); Henry S. Burrage, A History of the Baptists in New England 80–85 (Phila., 1894); Goen, Revivalism and Separatism 272, 277–282.
19. See the various warrants in the tax proceedings, the writ, and the pleadings in SF 152427.
20. The statutes cited by JA appear in notes 2–525–28 below.
21. The Inferior Court judgment is in SF 152427.
22. Min. Bk. 90, SCJ Worcester, Sept. 1769, N–10. SCJ Rec. 1769, fol. 115. According to this source “Sewall” joined Putnam as counsel for the assessors in the Superior Court. While this might not be conclusive as to JA's participation in the argument, an examination of the rest of the cases heard at this term does not reveal his name as counsel in any of them, strongly suggesting that he did not even attend this session of court. An MS account of Baptist sufferings by John Davis states that on appeal to the Superior Court
“it went in Greens favor there also and they allowed him Costs, all that it had cost him; that is, what Mony he had expend in the Law, and lawful Cost. The Jury did not go out—because the Judges advise Green to settle it. Green says it cost him 20 Dollars more than what he was allowed—beside all his Travelling for Witnesses—to prove himself a Minister.” Isaac Backus Papers, Andover Newton Theological School, Newton Center, Mass., on temporary loan to RPB.
As to Davis, an important figure in the Warren Association and a member of the American Philosophical Society, see 2 Backus, Church History 275–276.
The Warren Association (note 18 above) on 12 Sept. 1769 “Voted to give a Certificate acknowledging that he is regular, and in Fellowship to Rev. Nathaniel Green, to be made use of at the Superior Court at Worcester.” MS Minutes, p. 3, Backus Papers. No such document appears in the Superior Court file of the case. SF 152427. The editors are indebted to Prof. William G. McLoughlin of Brown University for these and subsequent references to the Backus Papers, as well as for his invaluable aid in plumbing various ecclesiastical mysteries.
23. 2 Backus, Church History 263. Backus did not positively identify the cases in his printed history, but in a draft of the work, discussing the case of Ebenezer Smith of Ashfield (note 17 above), he said “And though they assert that Mr. Smith is not a minister in law, yet the honorable justices of our Superior court, by their decisions in two parallel cases, have made them know that therein they did not speak the truth: and consequently that it was a violation of law and equity, to punish the baptists assessors in 1762, for allowing him the privileges of such an one.” Backus subjoined a footnote identifying the “two parallel cases” as “The case of elder Green of Charlton, and of elder Clark of Wilbaham, the last of which was decided in the court of Northampton near the close of this year [1771].” 2 Backus, Church History (MS—preliminary draft) 248, Backus Papers.

Docno: ADMS-05-02-02-0003-0002-0002

Author: Adams, John
Date: 1769-05

Adams' Minutes of the Trial1

Worcester Inferior Court, Worcester, May 1769

Prov. Law. 16.2 33.3 386.4 Temp[orary] Laws. About Certificates for Anabaptist Ministers and People,5 to be used in the Case following of
{ 43 }
Green vs. Washburn et als.
Worth[ington].6 All wise States have seen the Necessity of some Religion for the Support of Society.
{ 44 }
The Happiness of Brit[ish] dominions that an order of Men. The Romans and Grecians would have thought themselves happy if they had had such an order of Men.
All Ministers are exempted. By the annual Tax Act.7
Mr. Locks Defin[ition] of a Ch[urc]h. Ecclesia. A Number of Persons met to worship God.8 And that Man they choose for their Head shall be their Minister. He thinks him self as orthodox as any.
A Number of People, whether they disliked their former Ministers. About 50 Men and Women agreed to meet. An Anabaptist Church and an Anabaptist Minister.
Mr. Streeter. About 50 when called. 100 now. 7 male members. About as many females. In Octr. the ordination 1763. The Church unanimous. Not certain whether the Congregation voted. They belonged to Leicester, Spencer and Charlton.9 Green was a Mason by Trade.
{ 45 }
Mr. Alden.10 Mr. Green came to a general Meeting of the united Churches of the Anabaptist order. Mr. Stillman's Church was not then one. Mr. Mannings of Prov[idence] was not then.11 We examined him, found him Sound in Principle, and of regular Conduct. We went and read certain Rules.
We were sent to afterwards, and after being formed into a Council, and Enquiry after their Covenant &c., We ordaind him.12
{ 46 }
Mr. Jacob. Of Killingsley. The Elder 18 Years.13
Hall. Dont work much, reads Bible and Annotations &c. 2 exempted.
Mr. Alden and Mr. Jacobs broke fellowship with the Church I belonged to, and were formerly dealt with for so doing. Mr. Green, I understand, preaches in Charlton.
Dr. Greens Society and Mr. Southgates, are in Leicester. Strict Communion, and Strict Principles.14 Mr. Alden said He thought he missed it in giving the Charge he did to Mr. Green.
Mr. Putnam.15 Some Learning is necessary. Learning comes not by Inspiration, great Labour and study is necessary. The Law could not intend that every Man who shall start up, should be a Minister. He is learned in his Trade no doubt, and may understand his Bible, well eno' to secure his own Salvation. But he is wrong in leading People { 47 } off from their legal Pastors, and forming Seperations. He seperates for trifles, I cant think 'em essential. He cant communicate with them, because they dont insist on the Formality of laying on Hands.16 One Motive why he became a Preacher, might be, because he did not love to work.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. For the dating, see note 22 above.
2. The Act of 4 Nov. 1692, Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New-England 16 (Boston, 1759); c. 26, §1, 1 A&R 62, provided
“That the inhabitants of each town within this province, shall take due care, from time to time, to be constantly provided of an able, learned orthodox minister or ministers, of good conversation, to dispense the Word of God to them; which minister or ministers shall be suitably encouraged and sufficiently supported and maintained by the inhabitants of such town.”
The remainder of this section dealt with contracts for the “settlement or maintenance” of ministers and schoolmasters, giving the court of quarter sessions power to oversee such contracts. Under §2, if “any town shall be destitute of a minister qualified as aforesaid, and shall so continue by the space of six months, not having taken due care for the procuring, setling and encouragement of such minister,” the Court of Sessions was to order the town to take the necessary steps, or in default, the court was to “take effectual care to procure and settle a minister qualified as aforesaid.” §4 provided
“That every minister, being a person of good conversation, able, learned and orthodox, that shall be chosen by the major part of the inhabitants in any town, at a town meeting duly warned for that purpose . . . shall be the minister of such town; and the whole town shall be obliged to pay towards his settlement and maintenance, each man his several proportion thereof.”
§5 required the “settlement and maintenance” of schoolmasters. See, generally, text at note 2 above.
3. The Act of 17 Feb. 1693, Acts and Laws 33 (1759); c. 46, §8, 1 A&R 102–103, repealed §4 of the Act of 1692, note 2 above, providing instead [§9],
“that each respective gathered church in any town or place within this province, that at any time shall be in want of a minister, such church shall have power, according to the directions given in the word of God, to choose their own minister. And the major part of such inhabitants [i.e. of the town or place] as do there usually attend on the publick worship of God, and are by law duly qualified for voting in town affairs, concurring with the churche's act, the person thus elected and approved, accepting thereof and settling with them, shall be the minister; toward whose settlement and maintenance all the inhabitants, and rateable estates lying within such town, or part of a town, or place limited by law for upholding the publick worship of God, shall be obliged to pay in proportion.”
Under §10 the inhabitants of a place where there was no church might by majority vote at a town meeting,
“with the advice of three neighbouring ordained ministers . . . choose and call an orthodox, learned and pious person to dispense the word of God unto them, to the settlement and maintenance of which minister all rateable estates and inhabitants within such town or place shall be assessed and pay proportionably.”
See, generally, text at note 2 above.
4. Act of 13 Feb. 1760, Acts and Laws 386 (1759); c. 24, 4 A&R 288:
“[I]t shall not be lawful for any town, district, precinct or parish to assess the inhabitants thereof for or towards the support or maintenance of any person who shall be hereafter called to or settled in the work of the gospel ministry in such town, district, precinct or parish, unless such person shall have been educated at some university, college, or publick academy for the instruction of youth in the learned languages, and in the arts and sciences; or shall have received a degree from some university, college, or such publick academy; or shall have obtained testimonials under the hands of the major part of the settled ministers of the gospel in the county where such town, district, precinct or parish shall lie, that they apprehend him, the said person being a candidate for the gospel ministry, to be of sufficient learning to qualify him for the work of such ministry.”
See, generally, text at note 15 above.
5. JA probably cites the Act of 5 Jan. 1753, c. 15, § 1, 3 A&R 644, relieving such Anabaptists of taxes for the support of the ministry as should be either upon the assessors' lists, “or such as shall produce a certificate, under the hands of the minister and of two principal members of such church, setting forth that they conscienciously believe such person or persons to be of their perwasion and that he or they usually and frequently attend the publick worship in such church on Lord's days.” In §2 it was provided
“That no minister, nor the members of any Annabaptist church as aforesaid, shall be esteemed qualified to give such certificate as aforesaid other than such as shall have obtained from three other churches commonly called Annabaptists, in this or the neighbouring provinces, a certificate from each respectively, that they esteem such church to be one of their denomination, and that they conscientiously believe them to be Annabaptists.”
This act expired of its own force in 1758 (id. §3), and was not renewed, although its provisions were apparently still observed. See text and notes 6 and 7 above.
6. John Worthington, counsel for Green.
7. The statute under which the tax in suit was levied was the Act of 23 June 1767, c. 8, §2, 4 A&R 971, which provided that the Province Treasurer should require the selectmen and assessors of each town
“To assess all rateable polls above the age of sixteen years . . . (excepting the governor, lieutenant-governor and their families, the president, fellows, professors, Hebrew instructor and students of Harvard College, settled ministers and grammar-school masters, who are hereby exempted as well from being taxed for their polls, as their estates being in their own hands, and under their actual management and improvement; as also the estate pertaining to Harvard College).”
8. Probably a reference to this well-known passage in John Locke's first “Letter Concerning Toleration” (1689):
“Let us now consider what a church is. 'A church then, I take to be a voluntary society of men, joining themselves together of their own accord, in order to the publick worshipping of God, in such a manner as they judge acceptable to him, and effectual to the salvation of their souls. . . . A church, then, is a society of members, voluntarily uniting.'” John Locke, Works, 2:253–254 (London, 4th edn., 1740).
See Anson Phelps Stokes, Church and State in the United States, 1:143 (N.Y., 1950).
9. See the account of the church's founding given by John Davis in his Journal:
“Their Constitut[ion] was in [the] year 1762. 13th of July: when a Number of persons, having upon Conversat[ion], found they were of the same opinion in matters of Religion: and agreed to incorporate into a Church.
“In the year 1749 a Number of persons separated from the Standing Church, for 3 Reasons: 1. a Dislike to the Church Constitution. 2. The Manner of Supporting the gospel. 3 Manner of preaching. After they separated they continued in what is called the Separate Order for sometime, but in the same year gathered into a Church, upon what they Call Large Communion: that is mixt Communion.
“In 1762 Nathl. Green, and others separated from the Separates, having been baptized some time before; Green was baptized in Sturbridge by Blunt. Blunt recanted his own Baptism. And the same year, 1762, Mr. Green and others, from Leicester, Spencer, and Charlton became a baptist Church as aforesaid.
“Their Number in Ch[ristiani]ty was 6: who were Joined in a short time by 8 or 10 more. The names of the 6 were, Nathl. Green, Jno. Hill, and Jno. Hill Junr., Dorothy Shaw, Mary Hill, the wife of John Hill Junr. and Dorothy Shaw, Daughter of Dorothy Shaw. In Decem. 10th 1762 the Church called Nathl. Green to the Exercise of his ministerial gifts. He accepted the call, and continued the preacher alone in this Church—on tryal, till 13 of July 1763, when He gave the answer to the call—And was ordain'd their Pastor on the 12 of October 1763.
“Mr. Green had great Difficulties in the Separate Church, [in ?] endeavouring to suppress the Strange Spirit of the Separates: and this determined his Leaving the Separates.” Journal of John Davis, 27 April 1771, Backus Papers.
See also 3 Backus, Church History 176. Rev. John Blunt, pastor at Sturbridge from 1749 to 1752, renounced his Baptism and became a Separate in the latter year. See Goen, Revivalism and Separatism 103, 224–225. It has been said that Nathaniel Green's church was formed “by the dismission of several members” from Thomas Green's Leicester church (note 1437 below). See Estes, “Historical Discourse” 55–56. There is no evidence of this, but it is possible that some members of Thomas Green's congregation did join Nathaniel at some point, since there seem to have been doctrinal differences between the two churches. See note 1639 below.
10. The witness was probably Rev. Noah Alden, pastor of the Separate Baptist Church at Stafford, Conn., from 1754 until 1766, when he was called to the First Baptist Church of Bellingham, Mass. In 1767 Alden's Bellingham church became one of the initial members of the Warren Association. See Benedict, General History 416–417, 469; Goen, Revivalism and Separatism 228, 308; George F. Partridge, History of the Town of Bellingham, Massachusetts, 1719–1919 107–113, 132–136 (Bellingham, 1919). According to a contemporary record, Alden and Nathaniel Green were both pallbearers at the funeral of Rev. Thomas Green of the First Baptist Church of Leicester (note 1437 below) in 1773. Estes, “Historical Discourse” 37 note.
11. Samuel Stillman (1738–1807) accepted the pastorate of the First Baptist Church of Boston in Nov. 1764. James Manning (1738–1791), first president of Rhode Island College (now Brown University) and a leader in the Baptists' struggles, took a church at Warren, R.I., in the same year, moving to Providence only in 1770. DAB; Burrage, History of the Baptists 75–76, 98. Probably the witness' placing Manning in Providence in 1769 is a mere slip. For JA's contact with Manning, see note 14 above. The organization to which Stillman and Manning are characterized as not belonging is presumably an association of about eight Baptist churches, formed in 1763, which included Alden's Stafford, Conn., church (note 1033 above) and Wightman Jacobs' Thompson, Conn., church (note 1336 below). See 3 Backus, Church History 261; Elder Charles Train, Sermon, 31 Dec. 1826, in 7 American Baptist Magazine (n.s.) 153–154 (1827), a reference supplied by Professor McLoughlin. This group seems to have expired in 1767 with the founding of the Warren Association, in which Manning was instrumental, and which Stillman's church had joined in 1768. See note 18 above; note 1639 below.
12. Ordinarily when a church wished to have a minister ordained, it called a council of ministers to carry out the task. The ministers would first examine the candidate as to his beliefs and then perform the actual service of ordination. Goen, Revivalism and Separatism 168. The council called in Green's case seems to have already examined him informally on his appearance at the association meeting, although a formal examination may also have been held at the time of the ordination. The council apparently had the further duty of approving the organization of Green's church, which was newly formed. See note 932 above.
13. Presumably Rev. Wightman (or Whitman) Jacobs, Pastor of the Baptist Church in Thompson, Conn. (once part of Killingly) from 1750 to 1769, when he followed many members of his congregation to Royalston, Mass., after a doctrinal split in Thompson. See 3 Backus, Church History 178, 261; Lilley B. Caswell, History of the Town of Royalston, Massachusetts 65–68, 324–325 (Royalston, 1917). The Thompson church was one of those belonging to the association by which Green was examined. See notes 1134 above, 1639 below.
14. “Dr. Green” is not the plaintiff here, but Rev. Thomas Green (1699–1773), pastor of the First Baptist Church in Leicester, who was actually a medical doctor. See Estes, “Historical Discourse” 31–38. “Mr. Southgate” is undoubtedly Elder Richard Southgate (1714–1798), who preached to a Baptist society in Leicester which “was never organized as a corporate religious society; and, after the death of Elder Southgate, seems to have been merged in other societies.” Washburn, Historical Sketches of Leicester 115. “Strict Communion,” apparently the doctrine of these two societies, was the principle that no one should be admitted to communion who had not been baptized as an adult by total immersion. Opposed to it was “mixed communion,” under which those baptized by sprinkling in infancy were also admitted. The difference was a major cause of dissension among Separates and Baptists. See Goen, Revivalism and Separatism 229–232, 258–264. Compare note 932 above. “Strict Principles” perhaps means strict adherence to Calvinism. Thomas Green's church, of which he had been pastor since its founding in 1738, was strongly Calvinistic. He was apparently on good terms with the Leicester Congregationalists; the town had remitted his taxes in 1741. See Estes, “Historical Discourse” 22, 36; Goen, Revivalism and Separatism 237. The evidence thus seems calculated to cast doubt on Nathaniel Green's bona fides as a minister.
15. James Putnam, counsel for Washburn. For views similar to those here expressed by Putnam, see Petition of the Ashfield Proprietors, 27 March 1771, 4 A&R 1039–1043.
16. The doctrine that laying on of hands was a condition precedent to communion was adhered to by most of the General Baptist churches, which were strongest in Rhode Island and Connecticut and were known as “Six Principle” churches, this being in effect the sixth principle. The Calvinistic Particular Baptists of the Middle Atlantic states and most of the Separate Baptists of New England, including James Manning (originally a Philadelphian) and Isaac Backus, leaders of the Warren Association, rejected the doctrine. See Goen, Revivalism and Separatism 272 note; Burrage, History of the Baptists 27–30, 80–81; 3 Backus, Church History 59; Isaac Backus, A History of the Warren Association in New England, from its first formation to the present time (MS) 108, Backus Papers; Benedict, General History 453–454; Richard C. Knight, History of the General or Six Principle Baptists 100 and throughout (Providence, 1826) (the editors are indebted to Professor McLoughlin for the last three references). According to Backus, the association of Rhode Island and Connecticut churches which Green joined in 1763 (note 1134 above), although presumably Calvinistic, was founded upon the principle of “the laying on of hands upon every member as a term of communion . . . but in two years after the most of them gave up that bar of communion, of whom Mr. Jacobs [Wightman Jacobs, note 1336 above] was one.” 3 Backus, Church History 261. The association seems to have broken up thereafter over this issue. Both Jacobs and Noah Alden moved to Massachusetts at this point and took churches which joined the Warren Association (note 18 above). Since Green also joined the Warren Association in 1768, it seems probable that all three had been among those members of the earlier association who “gave up that bar” of laying on of hands. If this is so, Putnam's statement is inaccurate as of the time of the trial, but probably it correctly describes the circumstances which led to the foundation of Green's church. Holding this belief, Green could not “communicate” (i.e. be in fellowship) with either the Standing Church or the Separate Church, from both of which he had separated (note 932 above). In all probability, his position would also have prevented him from “communicating” with Thomas Green's Leicester Baptist church as well. If Thomas Green were a Calvinist of “Strict Principles” (note 1437 above) it is unlikely that he accepted what was essentially an Arminian doctrine. Moreover, in the church at Sutton, of which Thomas had been co-pastor before the foundation of his Leicester church, “Laying on of hands was left indifferent. Some were and some were not under h[an]ds.” Journal of John Davis, 27 April 1771, Backus Papers. See also Estes, “Historical Discourse” 17–19. Thus, Putnam's point seems to be that, if it were not for this doctrinal “trifle,” Nathaniel Green need never have formed his own church at all.

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

Editorial Note

“I was concerned in several Causes in which Negroes sued for their Freedom before the Revolution,” Adams wrote in 1795. “The Arguments in Favour of their Liberty were much the same as have been urged since in Pamphlets and Newspapers, in Debates in Parliament &c. arising from the Rights of Mankind. . . . I never knew a Jury by a Verdict, to determine a Negro to be a Slave. They always found them free.”1
The documentation of Adams' “slave cases” bears out his recollection, but not entirely. His minutes suggest that counsel for the slaves argued as much from precedent as from Enlightenment; and the court records show that in at least one case, Newport v. Billing,No. 39, the jury found the plaintiff to be a slave. It is curious that Adams should have forgotten that cause, because he was there, as in at least three other cases, of counsel for the putative master.
All the cases date from 1766 or later.2 In that year, Adams witnessed the trial of Slew v. Whipple, No. 38, the first he had actually seen, although { 49 } he had “heard there have been many.”3 Did the accelerated tensions of the Revolutionary movement encourage such suits? Would abolitionist pressure have developed anyway? These questions must be answered elsewhere.4
The cases do provide some basis for generalization. That such problems were taken to court for disposition in civil suits emphasizes the settled state of Massachusetts society at the time. A suit for trespass to the person is an exceptionally sophisticated way of testing an issue which could have been determined either by force or by flight.
It is significant that each plaintiff sought to justify his or her freedom as much on evidentiary grounds as on grounds of policy or the rights of man. As Putnam put it in Newport v. Billing, “Point in issue, Slave or not?” That point arose differently in different cases, depending on the twists the pleadings took and on the facts of each Negro's condition. With the exception of Margaret v. Muzzy, No. 40, the declarations sounded in trespass and the relief sought was damages for false imprisonment. “Freedom” was thus determined only as an incident of the right to maintain the action, much as title was tried in trespass to chattels. The form of action set the procedural frame of the case, but the facts determined counsel's pleading strategy.
In Slew v. Whipple, the initial skirmish centered on an attempt to abate the writ because the plaintiff had styled herself therein as a spinster. Adams' notes are cryptic, but it appears that counsel for the master argued that plaintiff's previous marriages, apparently to Negroes, had been valid, that “Jenny Slew, spinster,” did not exist, and that her writ must accordingly fail. A divided court rejected that effort. The trial on the merits went forward. Here the plaintiff's case was that, although her father had been a Negro, her mother had been white; the plaintiff, therefore, ought to be a free woman. The defense was only that the plaintiff had never proved her possession of her liberty; the defendant did not or could not introduce affirmative evidence of plaintiff's slave status. The jury thereupon awarded £4 damages and costs to Jenny.5
In Newport v. Billing, apparently the first slave case in which Adams actually participated, the defendant's position was stronger. To the declaration in trespass he responded that he had purchased the plaintiff and that the plaintiff was “his own proper Negro slave.” The plaintiff replied that he was “a freeman,” and the burden shifted to the defendant, who put in { 50 } evidence a bill of sale. He also argued that a Negro should be presumed to be a slave. The plain tiff urged the insufficiency of the documentary and the racial proof. Nonetheless, the jury found that Newport “was not a freeman as he alledged but the proper slave of” the defendant, and so denied him damages.6
Margaret v. Muzzy offered a procedural variation. Because Adams did not enter the case until late, on behalf of defendants, and because his papers contain no notes or minutes, we cannot tell why plaintiff chose to replevy herself out of defendant's possession on a writ de homine replegiando, or personal replevin. Once the action commenced, it proceeded as though the form were trespass; defendant pleaded not guilty and the matter went to the jury, which found for plaintiff.7 The result was the same on the appeal and upon a writ of review.8 The judgment in this case actually resulted in Margaret's freedom, since the plaintiff sought “possession” of her own person rather than damages.
There are no Adams minutes of Watson v. Caesar (May 1771) (not included here), another trespass action, but the Suffolk Files contain enough depositions and documents to disclose the story. Caesar had been a slave of Elkanah Watson of Plymouth and somehow came into the possession of the Chevalier de Drucour, a Captain in the French Navy. At Louisbourg on 1 July 1758 the Chevalier gave him his freedom and a certificate to prove it. Caesar returned to Plymouth on the sloop Sally, some of whose people were later to give conflicting depositions about his representations of this status, and then re-entered Watson's service.
Twelve and a half years afterward, Caesar demanded his freedom. “I am very willing he should have it,” Watson wrote to Benjamin Kent, Caesar's attorney, “and should have been as willing 10 years ago or when he first came home had he ever asked me for it, or if I had ever known he had a paper.” Whether Watson changed his mind, or whether they could not agree on the amount that Caesar was to be allowed for his services, Caesar commenced his action against Watson in the Plymouth Inferior Court. In April 1771, on a plea of not guilty, the jury found for Caesar. At Plymouth Superior Court in May, where Adams appeared for Watson, the jury affirmed the lower court's verdict, awarding Caesar nominal damages of 6d.9
{ 51 }
Adams' last known slave case, Caesar v. Taylor, No. 41,10 involved another Caesar. It appears from the documents that Taylor, Adams' client, had sold Caesar to a third party, despite an agreement that he was to be permitted to buy his freedom from Taylor. After the jury at the Newburyport Inferior Court in September 1771 had found for Caesar (Document I), Taylor appealed. Adams, participating in the litigation for the first time, sought at the November 1771 Salem Superior Court to introduce in evidence a bill of sale from one Edward Hircom to Taylor (Document II). Plaintiff's counsel (John Lowell and Nathaniel Sargeant) objected, on the ground that defendant's plea of the general issue (“non culpabilis,” or “not guilty”) precluded his introducing special evidence. This was the common law rule, but the court took the matter under advisement.11 Other minutes of the argument (Documents III and IV) indicate that plaintiff also raised evidentiary points at this time. First, he put in evidence of Taylor's agreement to sell Caesar his freedom. Second, he prevailed on his offer of evidence that Taylor's vendees had beaten Caesar, the court agreeing that the beating was what today we would call the proximate result of the initial tort, the illegal sale. Finally, plaintiff tried to convince the judges that the woman known as his wife was competent to testify; the common law rule went the other way, however, and so did the court, despite plaintiff's argument that Negroes could not legally marry and that therefore the woman was not really his wife.
At the Ipswich Superior Court in June 1772 (Document V), the court decided that a plea of the general issue barred special evidence, the new judges, Ropes and Cushing, who had been appointed since the argument, giving no opinion. Adams moved for leave to replead, which motion the court denied and brought the case on for trial. Here once again plaintiff tried unsuccessfully to have his wife testify, and Adams sought (apparently with equal lack of success) to mitigate damages by putting in evidence of Caesar's reputation as a slave. The case then went to the jury, which found in Caesar's favor in the amount of £5 13s. 4d. damages and £24 7s. 2d. costs.12
The final case in this collection, Caesar v. Greenleaf, No. 42, does not appear to be an Adams case, although the document here printed appears in the Wetmore Notes in the Adams Papers, and dates from the October 1773 Inferior Court at Newburyport. The declaration alleged trespass to which defendant pleaded not guilty, the general issue. However, to avoid the procedural cul-de-sac (or “non cul”-de-sac) which had bound Adams in Caesar v. Taylor, defendant's counsel here (Daniel Farnham) induced the other side (John Lowell) to stipulate that evidence of special matter would be admissible. Notwithstanding, the report does not indicate what { 52 } if any other evidence was introduced. It seems that the jury found for the plaintiff £18 damages and costs, and that there was no appeal.13
These cases represent only some of the “suits for liberty” which were being brought by Negroes in the years just preceding the Revolution.14 They suggest substantial acceptance of the institution of slavery by all except perhaps its victims. It was not until the Massachusetts Constitution of 1780 and Judge William Cushing's construction of its “free and equal” clause as a prohibition of slavery in Quock Walker's Case (1783) that there was even a firm legal basis for manumission when on the facts the plaintiff was clearly a slave. The subsequent history of slavery indicates that it was many years after this before any substantial portion of the people of Massachusetts were ready to mount either legal or moral attacks on the institution.15 Adams seems to have seen in recollection rather more in his early slavery cases than the records disclose.
1. JA to Dr. Jeremy Belknap, 21 March 1795. MHi:Belknap Papers.
2. JA had considered the problem tangentially some years earlier. In Feb. 1760, Jonathan Sewall wrote him:
“A Man by Will gives his Negro his Liberty, and leave's him a Legacy. The Executor consents that the Negro shall be free, but refuseth to give Bond to the Selectmen to indemnify the Town against any Charge for his Support, in case he should become poor (without which, by the Province Law [see No. 39, note 5] he is not manumitted) or to pay him the Legacy. Query. Can he recover the Legacy, and how?”
JA replied:
“The Testator intended plainly that his Negro should have his Liberty, and a Legacy. Therefore the Law will presume that he intended his Executor should do all that, without which he could have neither. That this Indemnification was not in the Testator's mind, cannot be proved from the Will. . . . I take it therefore, that the Executor of this Will, is by implication obliged to give Bonds to the Town Treasurer, and in his Refusal is a Wrongdoer and I cant think he ought to be allowed to take Advantage of his own Wrong so much as to alledge this Want of an Indemnification, to evade an Action of the Case brot for the Legacy, by the Negro himself. But why may not the Negro bring a Special Action of the Case against Executor, setting forth the Will, the Devise of Freedom, and a Legacy, and then the Necessity of Indemnification by the Province Law, and then a Refusal to indemnify and of Consequence to set free, and to pay the Legacy? Perhaps the Negro is free at common Law by the Devise. Now the Province Law seems to have been made, only to oblige the Master to maintain his manumitted <slave> servant, not to declare a Manumission, in the Master's Lifetime or at his Death, void. Should a Master give his Negro his freedom, under his Hand and seal, without giving Bond to the Town, and should afterwards repent and endeavor to recall the Negro into servitude, would not that instrument be a sufficient discharge against the Master?” Sewall to JA, 13 Feb. 1760; JA to Sewall, Dft, Feb. 1760; both in Adams Papers.
3. 1 JA, Diary and Autobiography321. No earlier suits for liberty have yet been identified, although Benjamin Kent and Judge Cushing in No. 38, referred to previous actions, as did Adams in No. 41, Doc. IV. In 1764, a Middlesex grand jury had indicted Joseph Collins and two others for forcibly taking and selling for a slave one William Benson, a free Negro, almost two years after Benson was sold to Collins. The defendants pleaded nolo contendere; because they had bought Benson back and freed him, the court merely imposed nominal fines. SF 147284; Min. Bk. 78; SCJ Rec. 1764–1765, fol. 155.
4. Belknap attributed the succession of actions to publication of a “pamphlet containing the case of a negro who had accompanied his master from the West Indies to England, and had there sued for and obtained his freedom.” 4 MHS, Colls. (1st ser.) 201 (1795–1835).
5. SCJ Rec. 1766–1767, fol. 175; SF 131426.
6. SCJ Rec. 1767–1768, fol. 284; SF 157509; 3 JA, Diary and Autobiography289.
“In a Homine replegiando the Defendant claims the Plaintiff for his Villain, and the Plaintiff pleads that he is free, and saith that the Defendant hath taken his Goods, and prays that he may gage [give] Deliverance, &c. for which the Defendant doth gage Deliverance. . . . But in a Homine replegiando, if the Defendant claim the Plaintiff as his Villain, the Plaintiff ought to find Sureties to deliver his Body to the Defendant, if he be found his Villain.” Fitzherbert, New Natura Brevium 154 (1755).
Compare the return on the writ in No. 40, SCJ Rec. 1768, fol. 311; SCJ Rec. 1770, fol. 216; SF 147651, 147830.
8. See Lynde, Diary 200 (1 Nov. 1770): “Tryal of Manumission of Margaret, a mulatto woman”; see also Quincy, Reports 30–31.
9. SCJ Rec. 1771, fol. 51; SF 142381.
10. SF 132190.
11. See 1 Chitty, Pleading 491–493. On the continuance, see Min. Bk. 93, SCJ Essex, Nov. 1771, N–3. A note in the Adams Papers in JA's hand shows that he received “13s: 4d” for his services “at Salem Court 1771.” Adams Papers, Microfilms, Reel No. 185.
12. Min. Bk. 93, SCJ Essex, June 1772, C–15; SCJ Rec. 1772, fol. 91.
13. See George H. Moore, Notes on the History of Slavery in Massachusetts 118 (N.Y., 1866); 2 Dane, Abridgment 426; Joshua Coffin, A Sketch of the History of Newbury, Newburyport, and West Newbury 241, 339 (Boston, 1845).
14. See Moore, Slavery in Massachusetts 112–121; 2 Dane, Abridgment 426–427; Lorenzo J. Greene, The Negro in Colonial New England 1620–1776 182 (N.Y., 1942).
15. See Cushing, “The Cushing Court and the Abolition of Slavery in Massachusetts: More Notes on the 'Quock Walker Case.'” 5 Am. Jour. Legal Hist. 118, 131–139 (1961). The judge was the same Cushing who had sat silent in Caesar v. Taylor. Text at note 12 above.

Docno: ADMS-05-02-02-0004-0002-0001

Author: Adams, John
Date: 1766-11

Adams' Copy of the Declaration, and Report1

Essex Superior Court, Salem, November 1766

Essex Ss. Novr. 1766. Sup[erio]r C[our]t.
Jenny Slew of Ipswich in the County of Essex Spinster Plaintiff vs. John Whipple Jnr. of said Ipswich Gentleman, Defendant, in a Plea of Trespass, for that the said John upon the 29th January 1762 at Ipswich aforesaid, with Force and Arms, took her the said Jenny, held and kept her in servitude as a Slave, in his service, and has restrain'd her of her Liberty from that Time to the fifth of March last, without any lawful Authority or Right so to do, and did her other Injuries against the Peace, and to the Damage of the said Jenny Slew as she saith, £25.
{ 53 }
Defendant pleaded, that there is no such Person in Nature as Jenny Slew of Ipswich aforesaid Spinster and this the said John is ready to verify, wherefore he prays Judgment &c.
Evidence was that she was originally called Jenny Slew, but that she had been severally Times married to slaves &c.
Writ did not abate. 2 Judges for Abatement and 2 against it. So being divided could not abate.2
1. In JA's hand. Adams Papers, Microfilm, Reel No. 185. This document is in the same leaflet with Doc. II, but on a separate page. Because it repeats some of JA's minutes, it may have been written later, perhaps with a view to inclusion in a collection of forms or pleadings.
2. Thomas Hutchinson, Chief Justice, and Chambers Russell were the members of the court not mentioned in JA's minute (Doc. II). But Russell was at the time of this trial out of Massachusetts; he left the Province on 16 Oct. 1766 and died in Guilford, England, 24 November. 9 Sibley-Shipton, Harvard Graduates 86–87. It would seem that Hutchinson, C.J., and Lynde, J., favored abatement and Oliver and Cushing, JJ., opposed.

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

Author: Adams, John
Date: 1766-11

Adams' Minutes of the Argument1

Essex Superior Court, Salem, November 1766

Slew vs. Whipple.
Gridley. Marriage is of the Law of Nations. Justinian extends it, even to the Brutes.2
{ 54 }
The Court adjudgd at Worcester that a Married Woman could not call herself Spinster.3
Writ not abated.4
Kent. I shall not enter into the Right of some Men to enslave others.5 This Right in some Places seems established. Not indeed a Right to Life,6 tho this is assumed in West Indies to the shame of human Nature.
Evidence was that Jenny Slew was commonly reputed to be the Child of Betty Slew a white Woman by a Negro Man.
Mr. Goffe.7
Gridley. Shall Trespass be maintained? Shall not the Plaintiff who sues in Trespass for Goods be compell'd to prove his Possession and that it was by force taken out of his Possession. She has never been in Possession of her Liberty, she has been out of Possession of it for 50 years. Trespass is the highest Action of the highest Nature in Law. No other civil action in which the Party may be punished criminally.8
Kent. In the Case of the East Indian at Charlestown they pleaded in Bar that she was a slave, and produced the Bill of Sale. Why did not they do so here?9
J. Oliver. This is a Contest between Liberty and Property—both of great Consequence, but Liberty of most importance of the two.
J. Cushing. It is not long since K[ing]'s attorney brought an Action of Trespass, in such a Case as this,10 and I think he was right, for if a Person is free he may bring Trespass at any Time.
{ 55 }
Partus sequitur ventrem.11 Colour is a Presumption.12
Lynde. Trespass has commonly been brought, I13
1. In JA's hand; a fragment only. Adams Papers, Microfilms, Reel No. 185.
2. Jeremiah Gridley, of counsel for defendant.
“Natural Law is that which nature has taught to all animals, for this law is not peculiar to the human race, but applies to all creatures which originate in the air, or the earth, and in the sea. Hence arises the union of the male and the female which we designate marriage; and hence are derived the procreation and the education of children; for we see that other animals also act as though endowed with knowledge of this law.” Justinian, Institutes 1.2 (transl. in 2 Scott, Civil Law 5).
Note the citation of civil law authority and the appeal to natural law. Gridley's argument was that if brutes could marry, slaves could. He may have been trying to avoid the thrust of an act of 1706 for “Better Preventing of a Spurious and Mixt Issue,” 1 A&R 578:
“And be it . . . enacted . . . that none of her majesty's English or Scottish subjects, nor of any other Christian nation within the province, shall contract matrimony with any negro or molatto. . . . And no master shall unreasonably deny marriage to his negro with one of the same nation, any law, usage or custom to the contrary notwithstanding.”
To defeat Gridley's plea in abatement, plaintiff had to convince the court that she had never been validly married. The brief JA minutes suggest several alternative contentions. It is possible that in moving to abate, Gridley was assuming, arguendo, that the plaintiff was free and white; his natural-law citation was thus an answer to the argument that plaintiff's marriages with Negroes were statutorily void. It is also possible that plaintiff had argued that she was a mulatto and that the statute voided any marriage between her and a Negro. And it is possible, despite evidence of her marriage to slaves, that she was at some time married to a white man; if so, she would be justifying use of “spinster” by insisting that the statute voided that marriage also. Because of the sketchy nature of the notes, we cannot tell exactly. We cannot even be sure that Gridley was invoking natural law to control a statute; it may be that he was merely trying to regularize relationships in which (despite JA's use of the word) there had been no “marriages” at all.
3. It is unclear whether Gridley refers to the Inferior or Superior Court. The case cited has not been identified.
4. The note refers apparently not to the Worcester case, but to this one.
5. Benjamin Kent, counsel for plaintiff. His point, echoed by Judge Cushing (text at note 1113 below), was that, because Jenny's mother was a white woman, Jenny could not be a slave, no matter what her father's status.
6. That is, the right to enslave does not give the master the right of life and death over his slaves.
7. That is, Edmund Trowbridge, who in early life used the name of his guardian and great-uncle, Edmund Goffe. 8 Sibley-Shipton, Harvard Graduates 508.
8. Trespass was a misdemeanor at common law; the tort is considered to have criminal roots, and Gridley may have been thinking of the early common law, where criminal sanctions sometimes resulted from a civil action for trespass. See Plucknett, Concise History 456–458; 5 Bacon, Abridgment 150; 3 Holdsworth, History of English Law 331–333. Compare Fifoot, History and Sources 44–56. But there is a question whether trespass was the only civil action in which the party might be punished criminally. Id. at 45–46.
9. The Charlestown case has not been identified.
10. The King's attorney would have been Trowbridge, who was Attorney General of the Province, 1749–1767. Whitmore, Mass. Civil List 124. The case has not been identified.
11. The child follows the mother, i.e., the child takes the mother's status. See note 57 above.
12. In view of Cushing's apparent position favoring the action, he seems here to be saying that the plaintiff's color raised only a presumption as to her status, which presumption was rebutted by evidence of ancestry.
13. MS breaks off at foot of page; remainder missing.

Docno: ADMS-05-02-02-0004-0003-0001

Author: Adams, John
Date: 1768-09

Adams' Minutes of the Trial1

Hampshire Superior Court, Springfield, September 1768

Newport vs. Billing.
Strong.2 Trespass and false Imprisonment. Plea that Plaintiff is Defendants Property—his Negro Slave.
Rep.3 no slave but a freeman.
Bill [of] Sale 1728. 15th March from David Ingersole.
Coll. Partridge. Ingersoles Hand. Lowghtons Hand. Knew Newport to live with Billing and reputed his servant.
Mr. Dickerson. Knew him 30 Years to be the servant of Billing.
Acts of Parliament that take Notice of slaves in Plantations.4
Law of Province.5
Every Man a Right to freedom that no Law or Usage can take away.
Forfeiture of Liberty. Wars, among them. Captives.
{ 56 }
A Right to destroy them, if necessary to secure themselves.
Right to enslave them to repay the Expences of defending ones self.
Sense of the Nation to be relyed on.
Presumption here is that an African black is a Slave.
Tax Acts.6
Putnam.7 Point in issue, Slave or not?
Defendant must now prove that Plaintiff is a slave. A Negro, black &c., the only Proof. Montesquieu, flat Nose, &c.8 Noah's Curse.9 Dr. Newton.10
History, Greece and Rome. Slavery. Power of Life and death.
Not proved that he has forfeited his Liberty, by the Laws of his Country.11
Common Report, that they are stolen in Affrica. The Same Right for them to enslave us.
Common Law directly vs. this Principle. Villenage.12
{ 57 }
3 Raymond 1274. Salk. Mod. Levitic Law Exod. The master might kill his slave.13
May have a Right to service, during Life. But not to Life.
Province Laws might mean slaves of West indians.14
Sewall.15 Painfull. Humanity, common Justice, and eternal Morality.
Conquest and Rights of War.
Plea says D. Ingersole had a Right to sell him. Rec[eip]t. Similitude of Hands.16
Protection. Break his Head. Indictment will lye.
Moral. Necessity to set it aside, it may be dem[onstrated?] that it is a Disadvantage to us.
Voltaire, no sugar.17
Wounded Consciences.
Vid. Arguments at large in 1st. Mod.18
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Simeon Strong, counsel for defendant.
3. “Replication”—the plaintiff's response to the plea.
4. For example, 23 Geo. 2, c. 31 (1750): “An Act for extending and improving the trade to Africa.—Whereas the trade to and from Africa is very advantageous to Great Britain, and necessary for the supplying the plantations and colonies thereunto belonging with a sufficient number of negroes, at reasonable rates.”
5. For example, “An Act Relating to Mulato and Negro Slaves,” 28 July 1703, c. 1, 1 A&R 519 (no manumission without security); “An Act to Prevent Disorders in the Night,” 1 Dec. 1703, c. 11, 1 A&R 535–536 (9 p.m. curfew for Indian, Negro, and mulatto servants or slaves); “An Act for the Better Preventing of a Spurious and Mixt Issue,” 5 Dec. 1706, c. 10, 1 A&R 578–579 (outlaws miscegenation and imposes a £4 per head duty on all imported Negroes).
6. For example, “An Act for Apportioning and Assessing a Tax of £40,000. . . . [§3] . . . to estimate Negro, Indian, and molatto servants proportionably as other personal estate.” 23 June 1767, 4 A&R 959, 973.
7. James Putnam, counsel for plaintiff.
8. Montesquieu, De l'Esprit des Loix, Liv. XV, c. V: “Ceux dont il s'agit sont noirs depuis les pieds jusqu'à la tête; et ils ont le nez si écrasé qu'il est presque impossible de les plaindre.”
9. Genesis 9:18–26:
“And the sons of Noah, that went forth of the ark, were Shem, and Ham, and Japheth: and Ham is the father of Canaan. These are the three sons of Noah: and of them was the whole earth overspread. And Noah began to be an husbandman, and he planted a vineyard: And he drank of the wine, and was drunken; and he was uncovered within his tent. And Ham, the father of Canaan, saw the nakedness of his father, and told his two brethren without. And Shem and Japheth took a garment, and laid it upon both their shoulders, and went backward, and covered the nakedness of their father; and their faces were backward, and they saw not their father's nakedness. And Noah awoke from his wine, and knew what his younger son had done unto him. And he said, Cursed be Canaan; a servant of servants shall he be unto his brethren. And he said, Blessed be the Lord God of Shem; and Canaan shall be his servant. God shall enlarge Japheth, and he shall dwell in the tents of Shem; and Canaan shall be his servant.”
10. John Newton (1725–1807), English clergyman who had served when young in the ship of his father (governor of York Fort, Hudson Bay), the Royal Navy, and the slave trade. He later studied Greek and Hebrew and was ordained an Anglican priest in 1764. His Authentic Narrative (1764) described his early life. DNB.
11. A possible reference to Smith v. Browne & Cooper, 2 Salk. 666, 91 Eng. Rep. 566, Holt K.B. 495, 90 Eng. Rep. 1172 (ca. 1707) note 13 below, in which Lord Holt held that
“as soon as a Negro comes into England, he becomes free; One may be a Villein in England, but not a Slave. . . . You should have averred in the Declaration that the Sale was in Virginia and by the laws of that Country Negroes are saleable; for the Laws of England do not extend to Virginia, being a conquered Country, their Law is what the King pleases; and we cannot take notice of it but as set forth.”
12. “A base tenure, where a man holds [land] upon terms of doing whatsoever is commanded of him, nor knows in the evening what is to be done in the morning, and is always bound to an uncertain service. 1 Steph. Comm. (7th ed.) 188.” Black, Law Dictionary.
13. The cases cited by Putnam are probably Smith v. Gould, 2 [not 3]Ld. Raym. 1274, 92 Eng. Rep. 338, 2 Salk. 666, 91 Eng. Rep. 567 (K.B. 1705); Smith v. Browne & Cooper, note 11 above; and Chamberline v. Harvey, 5 Mod. 182, 87 Eng. Rep. 598 (K.B. 1696). In the Gould case it was held that trover for a Negro will not lie, “no more than for any other man; for the common law takes no notice of Negroes being different from other men.” Putnam's reference to Scripture is probably a quotation from Salkeld's argument for the plaintiff in Gould “that a negro was a chattel by the law of the plantations, and therefore trover would lie for him; that by the Levitical law the master had power to kill his slave, and in Exodus xx, ver. 21 it is said, he is but the master's money.” Chamberline v. Harvey was cited in the margin of both reports of Smith v. Gould. In a long opinion the court held “that no action of trespass would lie for the taking away a man generally, but there might be a special Action of Trespass for taking his Servant, per quod Servitium amisit.” 5 Mod. at 191. See Pleadings Book, Form XI.
14. The argument seems to be that the word “slaves” in the various Province laws (notes 5, 6, above) ought to be taken to mean slaves on the Caribbean Islands only.
15. Jonathan Sewall, of counsel for Newport.
16. That is, the handwriting on the bill of sale was similar to that on another (unspecified) document.
17. For Voltaire on slavery see “L'A, B, C, ou Dialogues entre A, B, C,” 8ème Entretien, “Des Serfs de Corps”:
“C. . . . Montesquieu m'a fort réjoui dans son chapitre des nègres. Il est bien comique; il triomphe en s'égayant sur notre injustice. A. Nous n'avons pas, à le vérité, le droit naturel d'aller garrotter un citoyen d'Angola pour le mener travailler à coups de nerf de boeuf à nos sucreries de la Barbade, comme nous avons le droit naturel de mener à la chasse le chien que nous avons nourri: mais nous avons le droit de convention.” Voltaire, Oeuvres, 45:67–68 (Paris, Beuchot ed., 1831).
The reference to sugar may be an echo of Montesquieu. “Le sucre seroit trop cher, si l'on ne faisoit travailler la plante qui le produit par des esclaves.” Montesquieu, De l'Esprit des Loix, Liv. XV, c. 5.
18. This may be an inadvertence for “5th Mod.” (note 13 above), where arguments are fully set forth; nothing appears on the subject in 1 Mod.

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

Author: Mason, Thaddeus
Author: How, William
Author: Sewall, Jonathan
Author: Kent, Benjamin
Author: Winthrop, Samuel
Date: 1768-05

Writ and Pleadings1

Middlesex Inferior Court, Cambridge, May 1768

[Formal opening omitted.]

[salute] To the Sheriff of our County of Middlesex his under-Sheriff or Deputy. Greeting.

We Command you that without Delay you forthwith cause to be replevied (if she may be found within your precinct) Margaret, otherwise called Peggy, a Molatto woman now in the possession of William Muzzy of Lexington in our county of Middlesex Tanner, any claim of the said William notwithstanding, the said Margaret having found sufficient Security to prosecute her plea in this behalf against the said William. And summon the said William Muzzy (if he may be found in your precinct) to appear before our Justices of our Inferiour Court of Common pleas to be holden at Cambridge within and for our county of Middlesex on the third Tuesday of May currant then and there in our said Court to answer unto the aforesaid Margaret In a plea of taking and detaining the said Margaret whereupon she Complains that the said William Muzzy on or about the last day of August last at Lexington aforesaid unjustly took her the said Margaret and her so taken held in Servitude against her free will from the last day of August Last untill the Day of the Date hereof which is to the Damage of the said Margaret as she saith the sum of one hundred pounds which shall then and there be made to appear with other due Damages and have you there this writ with your doings herein. Witness Samuel Danforth, Esqr. at Cambridge this Second day of May in the eighth year of our Reign, Annoque Domini 1768.
[signed] Thad. Mason Cler.
Middlesex Ss. May 3d 1768. I have replevied the within named Peggy a Molatto out of the hands of the within named William Muzzy and have summoned the within named William Muzzy to appear at the time and place within mentioned by reading this writ to him.
[signed] Wm. How Dept. Sheriff
{ 59 }
The said William comes and Defends &c. and reserving Liberty of giving any Special matter in Evidence under the general issue and the same to avail as if specially pleaded says he is not guilty as the plaintiff complains and thereof puts himself on the Country, by Benja. Kent his Attorney:
And the said Margaret allowing the Liberty above reserved and also reserving Liberty of waiving this Demurrer on the appeal and joining the issue tendered says the said William's plea aforesaid is insufficient and prays Judgment for costs.
[signed] Jona. Sewall
And the said William consenting as above says his plea aforesaid is sufficient and prays Judgment that the said Margaret may be restored, when specially Demanded to him and for costs.
[signed] Benja. Kent
The Demurrer is waived and the Issue is joined.
[signed] Att. Saml. Winthrop Cler.2
1. Copies in SF 147651, 147830. The copy in SF 147830 has been followed, but for clarity, the deputy sheriff's return has been moved from the foot of the document to its present position.
2. This notation on the face of the copy of the writ used on the appeal is a minute of the waiver by counsel in the Superior Court of the Inferior Court pleadings set out in the paragraphs immediately preceding in the text.

Docno: ADMS-05-02-02-0004-0005-0001

Author: Wetmore, William
Date: 1771-09

Wetmore's Minutes of the Trial1

Essex Inferior Court, Newburyport, September 1771

Caesar v. Taylor. Trespass for detention in slavery. Plea non cul. Besides the usual proof of liberty, the plaintiff brot witnesses to prove a contract between him and defendant that he shoud be free on payment of a sum of Money and that the money was partly paid and that the Time of payment is not yet expired.
For defendant was read the province Law shewing negroes to be slaves and that they can't be manumitted without first giving bond,2 which was not done in the present Case &c.
But answerd by Plaintiff that the Province law doth not make any negroes slaves if it did it being contra. to Laws of God and reason { 60 } must be void. And [ . . . ] error &c. [about?] in different matters may make [jus] but not in essentials as life liberty &c.
1. Wetmore Notes. Adams Papers, Microfilms, Reel No. 184. This document, and those which follow from the Wetmore Notes contain many contractions (here mostly expanded) and little punctuation (here partly supplied). Particular passages may be difficult to interpret, but the sense is clear.
2. “An Act Relating to Molato and Negro Slaves,” 28 July 1703, c.1, 1 A&R 519.

Docno: ADMS-05-02-02-0004-0005-0002

Author: Wetmore, William
Date: 1771-11

Wetmore's Minutes of the Argument1

Essex Superior Court, Salem, November 1771

At the Superior Court November the defendant offered to give in Evidence on plea of non Cul his right to Caesar by purchase &c. The Council for Caesar objected that it cou'd not be admitted on this plea and the Court doubted. It was compared to the Cases in Trials pr pais2 and Gilbert L.E. [Law of Evidence]3 where title agreements &c. are good evidence, when they don't go in discharge of trespass but in denial of plaintiffs declaration. And the Cause was contin'd. A special verdict was proposed.
2. 2 Duncombe, Trials Per Pais 549: “The Defendant may prevail on Not guilty in Trespass, by making Title to the Land.”
3. Gilbert, Evidence 242: “Evidence on Not guilty for the Defendant in Trespass. The Defendant may prevail in this Issue, First, By making Title to the Land; for then he satisfies the Declaration, for he proves that he did not enter into the Plaintiff's Close, but his own; and consequently that is a very just Disproof of the Plaintiff's Declaration.”

Docno: ADMS-05-02-02-0004-0005-0003

Author: Wetmore, William
Date: 1771-11

Wetmore's Minutes of the Argument1

Essex Superior Court, Salem, November 1771

Taylor v. Caesar. Trespass for enslaving the defendant. Plea non cul. Evidence offered was a bargain between Caesar and Taylor that on payment of £— he woud set the boy free and proof was of payment of consid[erable] sum, and Taylor offered bill of sale in Evidence to which it was objected that its improper and doth not tend to support the plea and Trials per pais and Gilbert L. Evid. were produced. The Court doubted at first but since it was (I think June 1772) rejected by whole Court.

Docno: ADMS-05-02-02-0004-0005-0004

Author: Wetmore, William
Date: 1771-11

Wetmore's Minutes of the Argument1

Essex Superior Court, Salem, November 1771

Trespass for enslaving Plaintiff; plea non cul. Plaintiff offered evidence of beating imprisoning and abusing the plaintiff by defendants { 61 } vendees. As the defendant was the first cause <of> by illegal conveyance the Court unanimously admitted the proof, altho' said that it cannot appear by records.
Caesars wife offered as a witness. Objected to her as his wife and interested, and proof offered of cohabitation. Answer that there was no contract but what was dissolvable at will and said to be determined that no negro could be a bastard, but J[udge] Trowbridge said that proof of Cohabitation was proof of marriage, and evidence by witnesses was admitted of cohabitation for a course of years. White woman married to negro Slave not allowed to sue without naming him.2
Adams. It has been ruled in 3 cases by the Court, in Slewman, in Billings, and at Cambridge that negroes are presumed to be slaves and must make their freedom appear.3
Lowell.4 Made difference between property in matter and moral beings.
Hut[chinso]n. The Evidence not admissible on the plea.
Trowbridge of the same opinion.
Oliver also, of the same opinion.
Lynde in doubt.
Cushing not in[ . . . ].
2. That is, the husband would have to be joined in the action as a plaintiff.
3. The three cases are probably Slew v. Whipple, No. 38; Newport v. Billing, No. 39; and Margaret v. Muzzy, No. 40.
4. John Lowell, counsel for plaintiff.

Docno: ADMS-05-02-02-0004-0005-0005

Author: Wetmore, William
Date: 1772-06

Wetmore's Minutes of the Argument1

Essex Superior Court, Ipswich, June 1772

Essex Novemr. 1771.
On motion to give property in evidence on non cul. ruled that in this case it must not be, ruled by 3 of the Justices. R[opes] and Cushing gave no Opinion having heard no argument.
Mr. Adams then moved for a repleader. Objected that its grantable not of right but [favor?] and its error when granted or refused wrongfully. Its grantable in cases where the right of the suit cant be determined by the issue.2 Also objected that this is after verdict below.
{ 62 }
J. Trow[bridge]. The diff[iculty?] is that the defendant by repleader deprives the plaintiff of the advantage. Hut[chinson]and Trow[bridge] against it because the plaintiff may lose an advantage. Cushing inclining to replead. J. Ropes says nothing. J. Oliver against a repleader.
Adams moved to ask the plaintiffs witnesses whether the plaintiff was not reputed a Slave and used as such by his master the defendant (in mitigation of Damages).
Proof was given that Taylor owned3 a bargain between Caesar and him for his freedom for £600 O[ld] T[enor] and that part of it had been paid.
Note. J. Trowb[ridge] said in this case that the pleadings allowed the plaintiff to be a person and one able to sue. He is therefore not property which is a thing and a thing can't maintain an action. By English laws a person must be free, else no murder to kill him.
Said by Mr. Adams that Superior Court in J. Sewall's day determined from civil law authorities produced by Mr. Gridley and Pratt, that the children of a woman slave were the property of the master of the mother, and that negroes are in classe rerum and are Slaves in this Country.4
1. Wetmore Notes. Adams Papers, Microfilms, Reel No. 184. The date heading the document refers to the term from which the case was continued, because William Cushing and Nathaniel Ropes were not appointed to the Superior Court until 15 Jan. 1772. Whitmore, Mass. Civil List 70.
2. “Occasionally the Court would order a repleader, that is to say, that the pleadings should start afresh, for it might turn out that owing to some error which had been overlooked the fact on which issue had been joined did not dispose of the questions between the parties, so that the Court was after all not in a position to give judgment either way, no matter how that question of fact had been determined.” Sutton, Personal Actions 134.
3. That is, admitted.
4. Stephen Sewall (1702–1760) was Associate Justice of the SCJ from 1739 to 1752, Chief Justice from 1752 to 1760. The case in question has not been identified. On Jeremy Gridley's use of civil law authority on behalf of the defendant in a slave case, see No. 38.

Docno: ADMS-05-02-02-0004-0005-0006

Author: Adams, John
Date: 1772-06

Adams' Minutes of the Trial1

Essex Superior Court, Ipswich, June 1772

Tayler vs. Caesar. Salem Novr. 1771
Mem. examine civil Law, and Villenage, to see what Rules are to govern these Negro Causes.
{ 63 }
Tim. Fuller. Known Caesar between 20 and 30 years. I bought him, about 12 years old. A new Negro, right from Guinea, could not talk English. Tayler bound him, 3 Years. He came to me to buy him when Hircum owned him. I hired him of Tayler, a Month. He gave me Liberty to hire him, and I paid the Negro. Tayler said if he behaved well and got him his Money, he should be willing to let him have his Time. I said if he did not get the Money by such a Time3
Indian Woman rejected because Caesars Wife.4
Josh. Felt.5 Tayler told me, that he sold him, because he behaved6
Trials Per Pais 538. Regula.7 But read the Cases that follow in Illustration of the Rule, which shew that the Rule takes Place where a Person meddled with the Property of another.8
Wilson 254.9 Court gave Leave to Defendant to withdraw the general Issue and Plead a Justification.
Court determined that the Master should not give in Evidence that Caesar was a slave.
1. Adams Papers, Microfilms, Reel No. 185. Apparently JA wrote the title of this minute and noted the continuance at the Salem Superior Court, Nov. 1771. But the notes seem to have been taken at the Ipswich Superior Court, June 1772.
2. Nathaniel Peaslee Sergeant was Caesar's attorney.
3. The MS breaks off here. The next paragraph is in a clearer hand, suggesting that JA took time off to sharpen or replace his quill.
4. “Husband and Wife cannot be admitted to be Witnesses for or against each other, for if they swear for the Benefit of each other, they are not to be believed, because their Interests are absolutely the same, and therefore they can gain no more Credit when they attest for each other, than when any Man attests for himself.” Gilbert, Evidence 135–136.
5. Josiah Phelps, according to the file. SF 132190.
6. Sentence left incomplete by JA.
7. “Regula. Upon the General Issue, if by the Evidence the Defendant acknowledge that he did the Wrong, and justify this, and gives the Matter that goes to discharge him of the Act by Justification, this Evidence is not good, but he ought to have pleaded it.” 2 Duncombe, Trials Per Pais 538.
8. “This Rule is demonstrated by those Cases, where, upon Not guilty in Trespass, the Defendant would say the Property was in a Stranger, and that by his Commandment, or as his Servant, he took the Goods.” 2 Duncombe, Trials Per Pais 538.
9. Taylor v. Joddrell, 1 Wils. K.B. 254, 95 Eng. Rep. 603 (1749):
“Imprisonment: defendant pleaded the general issue inadvertently, and now moved to withdraw it, and for leave to plead a justification that he was master of a ship, that the plaintiff was making a mutiny therein, and so he imprisoned him. . . . Per curiam: There are many instances of this having been done when the court can prevent the plaintiff from suffering any inconvenience by it, as by obliging the defendant to take short notice of trial, and that if there be a verdict for the plaintiff he shall have judgment as of the present term; therefore let the defendant be at liberty to plead a justification, and the general issue also, if he pleases, upon the terms mentioned.”

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

Author: Wetmore, William
Date: 1773-10

Wetmore's Minutes of the Trial1

Essex Inferior Court, Newburyport, October 1773

Caesar v. Greenleaf
Trespass for inslaving the plaintiff.
Caesar a molatto man (otherwise called Caesar Hendrick) of said N[ewbury] P[ort] labourer in a plea of trespass for that the said R[ichard] G[reenleaf] at said Newbury Port on the 1 of January last, with force and arms assaulted the plaintiff then and there being in our peace, and then and there with force as aforesaid falsely imprisoned him and so with force as aforesaid and against the plaintiffs will hath then held kept and restrained him in servitude as the said Richard's slave from the same day untill the day of the purchase of this writ and many other injuries and enormities the said R.G. to the Plaintiff then and there did against our peace. Damages £50. Dated March 16. 1773.
Plea. And the said R.G. comes and defends when and where &c. and protesting that the said Caesar is his molatto Slave and that by law he is not held to answer to the said Caesar on his declaration aforesaid yet nevertheless the said R. for plea saith (on the plaintiffs agreeing that he the said R.G. may on the trial give any special matter in evidence for his Justification and that the same shall avail as if specially pleaded) he is not guilty in manner and form as the plaintiff hath declared, and thereof puts himself on the Country.
[signed] D. Farnham
And the Plaintiff (agreeing to the above) likewise.
[signed] J. Lowell
The Egyptians, Grecians, Jews, Romans, held many in slavery.
Province law. pa. 82.2 144–5. 152.3 Shew there were many slaves { 65 } in the province at the time of making those laws, held in slavery, and not to be manumitted, without security, &c.
The Defendants plea acknowledgeth him a molatto and therefore must have had a white parent, either father or mother.
Certificate of his baptism and that he is a member of Mr. Parson's church,4 read.
Admitting there are slaves in the province yet the plaintiff may be none and in fact is not one, as he will prove.
Villeins these were known in the English law. We have nothing to do with any other laws. Those of Egypt, Greece or Rome are nothing to Englishmen. At Common law partus non seq. ventrem, otherwise it may be in the civil law—but this law never adopted by English law in this case by the English law Villeins follow the state of the father not of the mother.
But objected by Farnham in Villeinage there was marriage, in this case none, so not applicable.
Matrimony a duty and right, and plaintiff by law of nature must provide for his issue, therefore must be free that he may discharge his duty and enjoy his right. No human tribunal can take away natural rights so fundamental.
The precepts of revealed law, golden rule of the gospel are that we are not to sell our brethren, that we are to do as we would be done unto.
He is a Christian and if held in Slavery may not perform his duties as one. His master did not object to his baptism and becoming a xtian.
Liberty is not to be taken from him by implication of law. There must be express law for it.
The province laws read establish Slavery only by implication if it does at all.
Plaintiff must be free unless a slave by common law, Statutes of G[reat] Britain, or law of the province.
But even villeinage is abolished by English law. The Common law abhors slavery.
Somersett case shews every one setting his foot on English ground to be free, wherever he came from.5
{ 66 }
Usage and custom must be for time whereof memory of man is not to the contrary, and must be reasonable, just, constant and right.
But in this country, in the Colonies, none such because records shew the beginning.
The old Colony law shews no slaves but those made by their own consent or by taking in lawful war.6
Sup[erio]r C[our]t hath determined this country too young for usage and custom time whereof &c.7
Foster Crown law, as to legality of impressing mariners, says impress had been ever Since existence of the nation, at least from William the Conqueror.8 Yet if it was not of public necessity it ought not to be esteemed law but England being an Island there was necessity it must be guarded by ships and seamen and of Course impresses legal. But Hume in his history questions Fosters law.9 And Foster pretends none but temporary right and while exigencies of war require.10
Some Legislatures So[uth]ward in the colonies have enacted, that blacks, as negroes are Slaves.11
{ 67 }
Hobart 87. Act of Parliament. Jura naturae immutabilia. An act of parliament against natural Equity, as to make one Judge in his own cause is void.12
The province law is to be extended only for the purpose mentioned in it, as to manumission, as to charge of supporting them &c. nothing as to the right of enslaving the negroes.
Caesar and Greenleaf (as I suppose) the foregoing case.13
J[udge]Frye.14 The defendant by the province law and by the custom of the country seems to justify his doings. The laws suppose slavery. The master by admitting the baptism &c. seems to have in a measure given the plaintiff his liberty. Shall this humanity be taken against the defendant?
N.B. This case I copied from Mr. P[ynchon's] report of it, and am uncertain whether J. Frye gave the above opinion in this case or some other.
2. “An Act against receiving of Stolen Goods,” Acts and Laws of the Province of Massachusetts Bay 82 (Boston, 1759), 13 June 1698, 1 A&R 325 (receiving stolen money or goods from “Indians, Molattos, Negroes, and other Suspected Persons” made punishable by whipping).
3. See No. 39, at note 5.
4. Almost surely Jonathan Parsons (1705–1776), Yale 1728, of the First Presbyterian Church, Newburyport. 1 Dexter, Yale Graduates 389–393.
5. Somersett's Case, Lofft 1, 19, 98 Eng. Rep. 499, 510, 20 St. Trials (N.S.) 1, 82 (K.B. 1772) in which Lord Mansfield said that slavery could exist in England only by positive law. Somersett had been the slave of Charles Stewart, an officer of the customs in Boston, and accompanied his master to England in 1769. In 1771, when Somersett ran away, Stewart retook him and tried to ship him to Jamaica, there to be sold. Somersett, however, obtained a writ of habeas corpus, on the return of which he was freed. See George H. Moore, Notes on the History of Slavery in Massachusetts 116–117 (N.Y., 1866).
“It is Ordered by this Court and the Authority thereof; That there shall never be any Bondslavery, Villenage or Captivity amongst us, unless it be lawful Captives taken in just Wars, as willingly sell themselves or are sold to us, and such shall have the liberties and Christian usuage which the Law of God established in Israel concerning such persons doth morally require; Provided this exempts none from servitude, who shall be judged thereto by Authority. (1641).” Laws and Liberties of 1672, Colonial Laws of Massachusetts 10 (Boston, ed. William H. Whitmore, 1887).
7. This case has not been identified.
8. Rex v. Broadfoot, Foster, Crown Cases 154 (Recorder's Court, Bristol, 1743). See No. 56, at note 2102.
9. The reference, presumably to David Hume, The History of England, from the Invasion of Julius Caesar to the Revolution in 1688, published in 1754–1762, has not been identified.
10. Rex v. Broadfoot, Foster, Crown Cases 154, 158 (Recorder's Court, Bristol, 1743):
“I think the Crown hath a Right to Command the Service of these People, whenever the publick Safety calleth for it. The same Right that it hath to require the personal Service of every Man able to bear Arms in case of sudden Invasion or formidable Insurrection. The Right in both cases is founded on one and the same Principle, the Necessity of the Case in Order to the Preservation of the Whole.”
11. In an account of his trip to South Carolina in 1773 Josiah Quincy Jr. said:
“The brutality used towards the slaves has a very bad tendency with reference to the manners of the people, but a much worse with regard to the youth. They will plead in their excuse 'this severity is necessary.' But whence did or does this necessity arise? From the necessity of having vast multitudes sunk in barbarism, ignorance, and the basest and most servile employ! . . . From the same cause have their Legislators enacted laws touching negroes, mulattoes, and masters which savor more of the policy of Pandemonium than the English constitution: —laws which will stand eternal records of the depravity and contradiction of the human character: laws which would disgrace the tribunal of Scythian, Arab, Hottentot, and Barbarian are appealed to in decisions upon life limb and liberty by those who assume the name of Englishmen, freemen and Christians: the place of trial no doubt is called a Court of Justice and equity—but the Judges have forgot a maxim of English law—Jura naturalia sunt immutabilia—and they would do well to remember that no laws of the (little) creature supersede the laws of the (great) creator. Can the institutions of man make void the decree of GOD? These are but a small part of the mischiefs of slavery, new ones are every day arising, futurity will produce more and greater.” Howe, ed., “Journal of Josiah Quincy Jr. 1773,” 49 MHS, Procs. 424, 456–457 (1915–1916).
An editorial note states that Quincy's MS has a reference after “Jura naturalia” as follows: “See Hobart's Reports.” Lowell used the same authority. See the following paragraph in the text, and note 12 below.
12. Day v. Savadge, Hob. 85, 87, 80 Eng. Rep. 235, 237 (C.P. 1615). “[E]ven an Act of Parliament, made against naturall equitie, as to make a man Judge in his owne case, is void in it selfe, for Jura naturae sunt immutabilia, And they are leges legum.” See No. 44, note 1971.
13. The sentence is apparently Wetmore's.
14. Peter Frye of Salem (1723–1820), Harvard 1744, was a Judge of the Essex Inferior Court from 15 Jan. 1772 to the Revolution. 11 Sibley-Shipton, Harvard Graduates 399–404; Whitmore, Mass. Civil List 84.

Docno: ADMS-05-02-02-0005-0001-0001

Editorial Note

The courts of Vice Admiralty in the colonies had been established by the Crown in 1697 primarily to provide a forum for enforcement of the Acts of Trade and Navigation, with which England sought to control colonial commerce for the benefit of the Mother Country. The courts were, of course, open for the trial of ordinary civil maritime cases, but in Massachusetts it took the earliest royal Admiralty judges nearly twenty years to overcome hostility aroused by the establishment, and unfamiliarity with the new process. Thus, although by 1720 the Admiralty had a sizable civil business, there had developed a solidly established tradition of common-law competence in maritime matters, which kept the court from realizing its full potential. The court was further hampered by the common-law power to issue writs of prohibition, with which any respondent in a case that did not actually arise on the seas, or concern the wages and discipline of seamen, could stay the Admiralty proceedings. By this means, virtually all contracts for maritime services (other than seamen's wages), as well as torts occurring within a harbor, could be excluded from the jurisdiction.1
Thus, even in its busiest years, the Massachusetts Vice Admiralty Court had had few cases that did not involve seamen, or other matters traditionally within its competence. The bulk of maritime torts and contracts were sued upon at common law. After 1764, when Parliament expanded and strengthened Admiralty jurisdiction of violations of the Acts of Trade, the court's business declined to fifteen or twenty cases a year. Most of these were civil in nature, but the passage of the Townshend duties in 1767 and the heightened enforcement activities of the new American Board of Customs Commissioners beginning in 1768, which sharply increased the number of revenue cases in the court, reduced its civil business to about six or eight cases a year, and, after 1770, to one or two.2
{ 69 }
As far as can be determined, Adams had no case of any kind in the Court of Vice Admiralty before 1768.3 This may well be explained by the fact that the business of the court was so slight and the cases so un-remunerative that there was no room for another advocate at its bar. He had originally brought Doane v. Gage, his first known Admiralty case, at common law, but decided to proceed in Admiralty, apparently for convenience. Probably because of the decline in such business he seems never to have had another civil Admiralty case.
This dispute over the ownership of a whale taken at sea shows that the civil side of the Vice Admiralty Court was not altogether defunct in the 1760's, but the case is chiefly of interest for its wealth of detail on the techniques of whaling. The whale fishery was a major industry in 18th-century Massachusetts. Vessels from Nantucket, Dartmouth, Cape Cod, and Boston had by 1775 ranged the Atlantic from Baffin Bay and Greenland in the north, eastward to the Azores and the coast of Africa, and south to Brazil and the Falkland Islands, producing an annual catch worth about £200,000.4
In 1765 nearly a hundred Massachusetts vessels fished the Gulf of St. Lawrence and the Straits of Belle Isle, which lie between Newfoundland and Labrador. In the fleet were a number of Cape Cod whalers, including ships captained by Joseph Doane of Chatham and Lot Gage of Harwich.5 On 21 June the hunting was good in the Straits; a sizable number of boats from several vessels were in the water, and numerous whales had been sighted. One whale in particular had succeeded in eluding capture, until Asa Nickerson, commanding one of Doane's boats, drove his “iron” into it. The whale sounded with the line. At some point thereafter, Gage himself struck the same whale and Nickerson's line came free. Gage was able to maintain control over the whale, supervise the kill, and bring its marketable parts aboard ship.
{ 70 }
At once a dispute arose between Doane and Gage as to the ownership of the whale. There was much uncertainty as to whether Nickerson had struck it at all, and if he had, whether he had still been “fast” at the time that Gage had struck. The Cape Codders all took sides, some on the basis of long-standing political and social rivalries, others because of financial interest engendered by the flexible and temporary sharing of labor and profit among vessels known as “mateship.”6 Gage remained steadfast in the claim that the whale was entirely his, however, and some time after the return of the fleet to home waters Doane brought action against him.
Suit was commenced at law in the Inferior Court at Barnstable, where an entry in John Adams' docket dated June 1766 records that he was “spoke to,” that is, asked to serve as counsel.7 Numerous depositions were taken, but the case was not disposed of at this stage. It is possible that the common-law court declined to hear a matter so obviously within the Admiralty jurisdiction, but it seems more likely that some practical consideration, such as the desire to avoid a biased local jury, led Adams to withdraw the action at Barnstable in order to proceed in Admiralty.8 In any event, on 6 January 1768 the case of “Joseph Doane v. Lot Gage, rela. a Whale” was entered by Adams on the docket of the Vice Admiralty Court.9 James Otis represented the Gage interests, which apparently included his father, Col. James Otis of Barnstable.10 Adams and Otis agreed that depositions taken for the trial in Barnstable might be used in Admiralty and that further depositions might be taken, but the case was continued from time to time.11 { 71 } Finally, Robert Treat Paine, once briefly a whaler himself,12 joined Otis on Gage's side, and on 22 April 1769 the parties agreed to submit the matter to arbitrators.13 Since no notation to this effect appears in the Vice Admiralty Minute Book, it may be that the agreement was to discontinue and to arrange the arbitration privately rather than under a rule of court.
After a day of hearings in June and a further postponement in August, proceedings before the arbitrators commenced in earnest on 19 October 1769 at Brackett's tavern, with Adams arguing first.14 The chief legal issue was the nature of the right of possession in whales, a question of vital concern to the whaling industry throughout the 19th century and to most first-year law students today. At some point before the hearing Adams had made a series of extracts of civil-law authorities standing for the proposition that property in wild animals is acquired when they are taken into possession, but lost if the animals escape from possession and regain their natural liberty. While civil-law authorities have always been of great weight at common law in such questions, the fact that this was an Admiralty proceeding probably accounts for the exclusive reliance upon them here.15
In the first portion of the arbitration proceedings Adams concentrated on the application of these principles to the practices of the whale fishery. His witnesses to the customary law of whaling testified that a boat was considered in possession of a whale when it was “fast” to it, that is, when its iron was still seated in the whale and the line was still in the boat's control.
A second boat striking the whale while the first was fast was entitled to a one-eighth share if it had come in at a “call” from the first; if the fast boat had not requested assistance the second striker took nothing, even though the whale ultimately cast the first iron.16 If the whale became “loose” without having been struck a second time, the first striker lost possession and { 72 } all claim to the whale, and a subsequent striker had full possession. Except for the grant of an eighth to the second striker, these rules are similar to the code epitomized by Melville in Moby Dick and observed by British and American courts dealing with the Greenland whale fishery then and for a century afterward. Adams' further argument that the adoption of custom strengthened rules designed to prevent disputes has also been followed in the courts.17
The real problems in the case were factual. Adams' evidence tended to show that Nickerson had been fast to the whale when Gage struck, thus giving Doane possession under the rules to which earlier witnesses had testified. Adams also introduced testimony which struck at the validity of Gage's evidence, suggesting physical impossibilities, inconsistencies, and dubious motives. Paine followed Adams, first attacking Doane's case, then putting in evidence to support Gage's theory that he had struck only after Nickerson had lost the whale and was hauling in his iron. When the evidence was in, Otis summed up the testimony presented.
Altogether there had been at least 74 witnesses—34 for Doane and 40 for Gage. Whether in deference to the civil-law procedure followed in the High Court of Admiralty in England, or for convenience in a hearing four years after the event, all of the testimony seems to have been in written form—either depositions or answers to interrogatories, which each side had served upon witnesses whose depositions showed their testimony to be crucial.18 Adams and Paine read these documents, or paraphrases of relevant portions of them, before the arbitrators, embellishing the reading with comments and arguments when appropriate. According to Paine's diary, { 73 } six days were required for the hearing. Finally on 27 October he noted simply, “Whale case finished.”19 No record of the result has been found.
The materials that follow include Adams' notes of authorities (Document I) and his extensive minutes of the arbitration proceedings (Document II), as well as copies of the interrogatories prepared by both sides (Documents III, IV). The latter are of particular interest, because they show the crucial factual issues upon which counsel concentrated at the last stages of a long litigation. On the basis of these documents the reader may be able to form his own judgment as to who was entitled to the whale.
1. For a summary of the development of the jurisdiction in Massachusetts and of the common-law restrictions, see Wroth, “The Massachusetts Vice Admiralty Court,” in George A. Billias, ed., Law and Authority in Colonial America: Selected Essays (Barre, Mass., in press).
2. Complete figures on the court are not available for the years 1745–1765, because virtually all of its records for that period were destroyed in the Stamp Act riot, 1765. See Wroth, “The Massachusetts Vice Admiralty Court,” 6 Am. Jour. Legal Hist. 263–264 (1962). The business of the court, 1765–1772, can be estimated from the Minute Book for those years in the Office of the Clerk of the Supreme Judicial Court for Suffolk County, Boston. See p. 102–104, notes 17, 22, 24 below. Development of the court's revenue jurisdiction is summarized at p. 98–106 below.
3. JA first mentioned being at the Admiralty Court in a diary entry of 30 Jan. 1768, which was after the commencement of Doane v. Gage there. 1 JA, Diary and Autobiography337–338; see text at note 9 below.
4. See Edouard Stackpole, The Sea-Hunters 30–65 (Phila., 1953); Alexander Starbuck, History of the American Whale Fishery 19–77 (Waltham, Mass., 1878). For the market value, see Thomas Jefferson, “Memoranda,” Oct. 1788, 14 Jefferson, Papers, ed. Boyd, 226–234; Thomas Jefferson, “Report to the House on the Cod and Whale Fisheries,” 1 Feb. 1791, in H.R. Misc. Doc. No. 32, 42d Cong., 2d sess. (1872); Obed Macy, The History of Nantucket 70–72, 233 (Boston, 1835). JA was also concerned with the American whaling industry during his diplomatic career. See 3 JA, Diary and Autobiography83–84.
5. See Boston News-Letter, 8 Aug. 1765, p. 3, col. 1. Doane (c. 1720–1778) held a variety of public offices in Chatham, kept a public house there “of great benefit to the fishery,” and found time to participate in the annual whaling voyages. See Alfred A. Doane, The Doane Family 136 (Boston, 1902); 17 A&R 552; 18 A&R 453, 675. He was also involved in two later JA cases, No. 57 and No. 58. Lot Gage was an incorporator of the Second Parish of Harwich in 1746. Frederick Freeman, The History of Cape Cod, 2:513 (Boston, 1869).
6. See Stackpole, Sea-Hunters 42, 51. See also notes 3, 7, 1929, 33, 45, below.
7. JA, Docket, June 1764–Oct. 1767. Adams Papers, Microfilms, Reel No. 182. The entry, which is nearly illegible, may read “Jonathan” Doane, but if that reading is correct, it is probably an error on JA's part. That the case was first entered in the Barnstable court is established by the agreement regarding depositions from that court in note 11 below.
8. Other whale cases in the Superior Court files are inconclusive on the jurisdictional point. Dyer v. Doane, SF 144072, SCJ Rec. 1757–1759, fol. 325 (Barnstable, 1758), was an action of trover for a whale allegedly struck by the plaintiff in Cape Cod Harbor and taken up on shore by the defendant, who won the verdict. In Bassett v. Jenkins, SF 144166, SCJ Rec. 1763–1764, fol. 245 (Barnstable, 1764), trover for a whale struck in the St. Lawrence, the defendant prevailed on a motion in arrest of judgment, apparently on a pleading defect unrelated to the jurisdictional question. The problem of location could be avoided in any event by alleging a fictitious venue within the Province, which was done in Bassett v. Jenkins.
9. Vice Adm. Min. Bk., 6 Jan. 1768.
10. As to Otis, see note 531 below.
11. The agreement, dating from March 1768, provides “That Each Party shall have Liberty to use the Depositions heretofore taken to Be used in the Inferior Court of Common Pleas at Barnstable and all the Evidences heretofore Taken In Perpetuam Reis Memoriam: and to Take any others that may Be Wanted In the same Manner: and that all such Depositions shall be Considered as having the same Weight as If the Deponants were Dead Gone to Sea &c. and were Regularly taken.” A supplement, dated “In Court,” 15 Dec. 1768, provided that any further depositions thought necessary should be taken before two Justices of the Peace in Barnstable, “whether taken in Perpetuam or in the Common form, the Adverse Party to be notified.” MHi:Waterston Collection. See note 284 below. For a discussion of the statutory rules for taking depositions, see p. xlvii above. The continuances through 28 Nov. 1768 appear in Vice Adm. Min. Bk., 6 Jan., 28 Nov. 1768. Paine notes that in Jan. 1769 the court, sitting to hear the case, adjourned until April. Paine Diary, 23 Jan. 1769.
12. On a voyage to Greenland in 1754. See 12 Sibley-Shipton, Harvard Graduates 465.
13. Paine Diary, 19 Jan., 22 April 1769.
14. Paine Diary, 20, 21 June, 10 Aug., 19 Oct. 1769. In his own diary under the last date, JA noted, “The morning at Brackett's upon the Case of the Whale.” 1 JA, Diary and Autobiography344. “Brackett's” was undoubtedly the Cromwell's Head, an inn on School Street in Boston kept by Joshua Bracket, where such proceedings were commonly held. See Rowe, Letters and Diary 127; Thwing, Crooked and Narrow Streets 109; Drake, History and Antiquities of Boston 807. JA apparently had the assistance of an unidentified lawyer, whose notes on the case are found with his. See note 127 below.
15. The common-law position on wild animals is typified by Kent, Commentaries *348–350. As to the Admiralty as a civil-law jurisdiction, see JA's argument in No. 46. From the beginning of his legal career he had read extensively in the civil law. See 1 JA, Diary and Autobiography44, 55–57, 173–174.
16. The statement in 1 JA, Diary and Autobiography 344 note, that Doane as first striker would be entitled only to an eighth upon losing the whale is thus erroneous.
17. Melville's formulation was:
“But though no other nation [except Holland] has ever had any written whaling law, yet the American fishermen have been their own legislators and lawyers in this matter. They have provided a system which for terse comprehensiveness surpasses Justinian's Pandects and the By-laws of the Chinese Society for the Suppression of Meddling with other People's Business. . . .
“I. A Fast-Fish belongs to the party fast to it.
“II. A Loose-Fish is fair game for anybody who can soonest catch it.” Herman Melville, Moby Dick (Chapter 88) 393–394 (N.Y., 1950).
See also William Scoresby, An Account of the Arctic Regions, 2:318–328 (Edinburgh, 1820). Compare Aberdeen Arctic Co. v. Sutter, 4 Macq. 355 (H.L. 1862); Addison v. Row, 3 Paton App. 334 (H.L. 1794). Different whaling areas had local customs differing from those of the Greenland fishery, but the courts have applied them on the theory enunciated by JA. See Oliver Wendell Holmes, The Common Law 167–168 (Cambridge, Mass., ed. Mark DeWolfe Howe, 1963), and cases there cited. See also note 632 below.
18. For the English Admiralty practice, see No. 46, notes 35, 63. Depositions were apparently taken both during the common law proceeding and after, under the agreements cited, note 11 above. See notes 7-933–35 below. The interrogatories were presumably prepared during the pendency of the Admiralty proceeding and were administered to at least one witness some time during 1769. See note 3359 below. In the Suffolk files are two fragments in the hand of James Otis, containing questions to be put to various witnesses. These are probably questions submitted by Otis to whoever was taking depositions in the case, to be asked of the deponent. They are set out in note 3965 below.
19. Paine Diary, 27 Oct. 1769.

Docno: ADMS-05-02-02-0005-0001-0002

Author: Adams, John
Date: 1768

Adams' Notes of Authorities1

Court of Vice Admiralty, Boston, 1768

Doane's Whale.
Grotius B. 2, Chap. 8, §. 2. How long Beasts Birds and Fishes, may be said to be no Body's, admits of some Dispute.2
§. 3. “The Roman Lawyers say, We lose our Property in wild Beasts, as soon as ever they recover their natural Liberty: But in all other Things the Property acquired by Possession does not cease with the Loss of Possession. Nay it gives us a Right even to claim and recover our Possession. And Whether they be taken away from us by another, or get away of themselves, as a fugitive slave, it is all one.”3
Inst. Lib. 2, Tit. 1, §. 12. “De rerum divisione et de [ad]quirendo [ipsarum] dominio. Ferae igitur Bestiae et Volucres, et Pisces, et omnia animalia, quae mari, Coelo, et Terra nascuntur: simulatque ab aliquo capta fuerint, jure gentium, statim illius esse incipiunt. Quod enim ante nullius est, id, naturali Ratione, occupanti conceditur. Quicquid autem eorum ceperis, eousque tuum esse intelligitur, donec tua custodia coercetur. Cum vero tuam evaserit Custodiam, et in Libertatem naturalem sese receperit, tuum esse definit, et rursus occupantis fit. Naturalem autem Libertatem recipere intelligitur, cum vel occulos { 74 } tuos effugerit vel ita sit in Conspectu tuo ut difficilis sit ejus Persecutio.”4
§. 13. “Illud quaesitum est, an si Fera Bestia ita vulnerata sit, ut capi possit, statim tua esse intelligatur. Et, quibusdam placuit, statim esse tuam et eousque tuam videri donec eam persequaris. Quod si defieris persequi: definere esse tuam, et rursus fieri occupantis. Alii vero putaverant non aliter tuam esse quam si eam ceperis. Sed posteriorem sententiam nos confirmamus, quod multa evidere soleant ut eam non capias.”5
Vid. same Law in same Words: Digest Lib. 41. Tit. 1. “De adquirendo Rerum Dominio.”6
§. 5. “Naturalem &c. illud quaesitum est an fera bestia, quae ita vulnerata sit, ut capi possit statim nostra esse intelligatur. Trebatio placuit statim nostram esse, et eo usque nostram videri donec eam persequamur. Quod si defierimus eam persequi: definere nostram esse, et rursus fieri occupantis. Itaque si per hoc tempus, quo eam persequimur, alius eam ceperit eo animo ut ipse lucrifacerit: furtum [videri] { 75 } nobis eum commisisse. Plerique non aliter putaverunt eam nostram esse, quam si eam ceperimus: quia multa accidere possunt, ut eam non capiamus: quod verius est.”7
1. In JA's hand. Adams Papers, Microfilms, Reel No. 184.
2. Hugo Grotius, The Rights of War and Peace (London, 1738). The passage reads: “And to this Head [the Seizure or Possession of Things that have no Owner], in the first Place, is referred the Catching of Beasts, Birds, and Fish. But how long all these may be said to be no Body's, admits of some Dispute.” Id. at 248. The remainder of the section deals with the question whether the owner of an enclosed forest or lake has a property in the wild animals therein.
3. Grotius, War and Peace, bk. 2, ch. 8, §3. Quotation marks supplied.
4. This and the next paragraph are from the Institutes of Justinian, that summa of the Roman law which is the basis of all civilian studies. The edition used by JA cannot be determined, but the fact that he also quoted the Digest, note 625 below, indicates that he had access to a copy of the Corpus Juris Civilis, in which all of the works attributed to Justinian are contained. The passages here have been collated with Corpus Juris Civilis (Altenburg, ed. C. H. Freiesleben, 1751). Quotation marks have been supplied. The translation of the passage quoted here follows, with a sentence omitted by JA given in brackets.
“Of the different kinds of things and of acquiring dominion of them. . . . Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. [So far as the occupant's title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it.” The Institutes of Justinian 37 (Oxford, transl. J. B. Moyle, 1913).
5. The translation of bk. 2, tit. 1, §13 of the Institutes is as follows:
“It has been doubted whether a wild animal becomes your property immediately you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of anyone who catches it: others have been of opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it.” Institutes, transl. Moyle, 37.
6. Justinian, Digest, bk. 41, tit. 1, also collated with the text of Freiesleben, note 423above. The first four paragraphs of Title 1 repeat the beginning of §12 of the Institutes quoted by JA, note 423 above.
7. Digest, bk. 41, tit. I, §5. The sentence which JA sums up as “&c.” is the same as the last sentence of §12 of the Institutes, note 423 above. The remainder of the paragraph is an elaboration of §13 of the Institutes, note 524 above:
“The following question has been asked: when a wild beast is so wounded that it could be taken, does the person [who wounded it] immediately become owner? Trebatius was of opinion that he did immediately, and that he must be held to retain the ownership so long as he kept on following the animal up, but that, if he relinquished the pursuit, his ownership ceased and the animal would once more become the property of whoever took it; so that if, at any moment while the pursuit lasted, some other person should capture it with a view to his own profit, he must be held to have committed a theft on the person first mentioned. A good many authorities hold that the party does not become owner unless he captures it, because there is a considerable chance of the capture not being made; and this is a better view to take.” De Adquirendo: Translation of Justinian's Digest, Book 41, Title 1, 3 (Cambridge, transl. C. H. Monro, 1900).

Docno: ADMS-05-02-02-0005-0001-0003

Author: Adams, John
Date: 1769-10

Adams' Minutes of the Arbitration1

Boston, October 1769

Doane vs. Gage.
Our Depositions2
Silvanus Snow and Amos Knowles. Captains. Have been long acquainted with the Customs of Whaling. If A. strikes a Whale, and B. puts in a 2nd. Iron upon a Call or Swing, from A. or otherwise and A's Iron draws, the Whale is in the Possession of A. the first striker.
Knowles to the Mateship and Value of the Whale.3
Gamaliel and Barzillai Smith. It was the Custom 1765 at Streights of Bellisle, that if A. struck a Whale, and made a Swing, B. getting an Iron in was intituled to an Eighth. Several Instances last Year, of Whales struck with only an Iron and naked Warp, and they that struck em again had 1/8, by arbitration. The Custom also, that if A struck a Whale, and she drawed his Iron he had no Right, except B's Iron was in before she was loose, by a Call. The common Custom, the first Striker is in Possession while he is fast if it were but for a Minute.
{ 76 }
Nathan Hopkins saith, there was a Dispute or Controversy between Doane and Gage, about a Whale killed the day before, and Gage had in Possession. Doane said He was the first Striker and that his Boat was fast to her, when Gage put in his Iron. Gage said she was a loose Whale when he struck her. Doane desired to leave it to Whalemen on the Spot. Gage refused. Doane demanded his Part according to Custom would not be at Charge for Trying, Freight, or Barvell.4 Gage would do nothing, but said his owner might dispute it at Home. Deponent and David Welts called as Witnesses to the offer and Demand. Custom that 2d. Iron called by 1st has an 1/8.
David Welts to the same Purpose.5
These 5 deponents sufficient to ascertain the Custom. The Customs of Whaling are certain Regulations dictated by observation, Experience, of Common Sense among Whalemen. They are the Result of the Common Sense of Whalemen. And this Regulation among the Whalemen at the Streights seems to be a wise, prudent, and equitable one. Some Rule, and Law, they must have, to avoid everlasting Contention. What better Rule can they have than this that the first striker shall have the Game?6
{ 77 }
Witnesses to the Facts. 8 in Point. Jesse Newcomb and John Chase.
Robert Newcomb. Hove his Iron at her, did not fasten, hawled in his Iron. Nickerson shot in, and struck her, his Boat not more than 8 or 10 fathoms from mine. Nickersons Iron Pole the whole length above the Water. Nick. hove over his Coils of Warp and shipped his oars. Whale went down, in about a minute shot up again so near to Gage that I thought she would have stove his Boat. I, 40 yds. distance from Gage. Gage hove his Iron into her. Nothing parting us and Gage from the Whale but Nickersons Boat. Nick and Gage towed away together. About 4 Boat length 104 foot. Both fast to said Whale at the same Time, cant say how long. When Nick. struck her he saw the Whale and Iron Pole go down together.
Silas Newcomb. We hove at a Whale, but did not fasten, so we haled in our Iron. Nick. shot in, and struck her, and hove over his Coils of Warp. The Whale went down, and as she rose, Gage met her, and hove his Iron into her. Nothing parting us and Gage but the Whale and Boat. Nick. and Gage towed away together 2 boats Length. Nick.'s Iron struck the Whale above Water his Boat 12 or 15 fathoms from ours. Gage 40 Yds. when he put his Iron. When Nick. struck I saw the Whale and Iron Pole go down together. I saw the shank of Nick's Iron was bent as if it had been fastend in a Whale.7
{ 78 }
Atkins Smith. In the Boat with Silas Newcomb. Hove and missed and hawled in our Warp. Nick. shot in, and struck her and hove over his Coils of Warp. The Whale went down and as she rose, Gage met her and hove his Iron into her, nothing parting Gage and us, but Whale and Nickersons Boat. I then saw both tow. Then several Questions and answers passed before Gage forbid any Person, and after that We saw Nickerson loose. Saw Nick. Boat come in Tow after the Whale with the oars shipped in. They both towed together, and then I [lookd?] off.8
Edward Cook. In the Boat with Silas Newcomb. Hove and missed. Hawled in the Iron. Nick. shot in and struck her and hove over his Coils of Warp that lay on the Head of the Boat. Then the Whale went down, and as she rose again Gage met her and hove his Iron into her, nothing parting Us, and Gage, but Whale and Nickersons Boat. Saw Nick's Boat come in Tow after the Whale with his oars shipped in, and Nick and Gage towed away together 2 Rods at least while I looked on.
Note these 4. Witnesses, Rob. and Silas Newcomb, Atkins Smith and Ed. Cook. are all direct and possitive to the Point. They were all in one Boat—all very near to the Whale and to Nick. and Gage: it was a Whale that they had hove at but a minute before, and therefore the more likely to observe attentively. They all agree, that they hove at the Whale first, missed and haled in their Iron—that Nickerson instantly upon their missing of her, shot in upon her—hove at her <and> struck her and fastened to her. That the Whale upon being struck by Nickerson went down under Water, and soon after came up near Gage's Boat—so near that they thought she would have stove him as Rob. Newcomb swears—that Gage threw his Iron into her, without any Call from Nick. and both Boats towed away together. They can none of them say exactly how long.
Joseph Cable. In Newcombs Boat. Silas Newcomb steersman and Robert Harponier. Our Harp[oon] hove and misst. Nick. hove his Iron into the Whale and made fast to her. Gage came up, in 2 minutes and hove his in. The Whale run, and both Boats towed sharp for a minute and half. Then Nicks Iron drew. Plain to be seen—within 30 Yds. of the Whale.9
{ 79 }
Edmund Freeman. A Dispute between Doane and Gage. Newcomb said he was close by, and looked right on and saw both under Tow together. Dispute whether an Indian or Nickerson was Endsman, and Newcomb right and Gage wrong. Custom to leave such disputes to Arbitration.
Archelaus Harding. Mayo's Steersman. Nick. struck the Whale sometime before Gage, and continued fast to her untill Gage was fast and sometime after Whale winded Nickersons Boat round, and upon a Turn the Whale hove out Nicks Iron. Still he followd and worked upon her till dead. I viewed her, and found an Iron Hole in which was no Iron. A warps Length off when Nick. struck. Whelden farther off.
From this Deposition it seems that Gages putting in his Iron, made the Whale shift her Course turn Nickersons Boat quite round, and in turning, hove out his Iron. So that Gage's striking the Whale when in Nickersons Possession was the Cause why his Iron drew and if Gage had not struck her Nickerson would probably have continued fast till he could have put in more Irons.
Elisha Linnell in Wheldens Boat with him and Eldridge. Saw Gage put in his Iron, several other Boats near, one of them being Nick. Not above 15 fathoms from Gages Boat when Gage struck the Whale. Never saw Nick hawling in his Iron—nor heard Whelden say so. Not till We arrived at N. England. Nick. pursued and assisted in killing the Whale and insisted she was his Property as the first striker. And fast when Gage put in his Iron.
Vid. Saml. Linnells Deposition vs. this.10
Captn. Joshua Harding. In Conversation with Jno. Wheelden, a few days after the whale was killed Wheelden told him, that if the Dispute was left to him as an Arbitrator, he should give Part of the Whale to Mayhew11 and Part to Doane. He saw an Hole, that he thought and still thinks an Iron Hole.
Josh. Bassitt, Harponier to Jno. Crowell, and belonged to Wheel• { 80 } dens Vessell. Swears, that when the Boats were close upon the Whale, he was 200 Rods distant, and that he could not know one Boat, nor Man from another. Near 30 Boats between him and Whale. And he saw Nickerson, with Gage and others at Work on the Whale after he came up. Heard none of the Crew say, that Nicks Iron was out when Gage struck, or that the whole whale belongd to Gage.12
James Wallace. An oarsman to Crowell. By Reason of the Distance could not know <one Man nor Boat from another, when the whale was struck> who struck the Whale. On his coming on Board, the People in Wheeldens Boat told him the Whale belonged to the Doans. Elisha Linnell told him so in particular.
Captn. Micajah Sears. Wheelden or some of his Head Men on board their Vessell told me, that they were nigh the Whale when struck, and by what they saw, they thought she belonged to Captn. Doane. This was the general Talk on board Captn. Wheeldens Vessell, at that Time, and no Contradiction to it.
Robt. Homer. Master of a Voyage. In a Boat with Seth Baker and Jno. Cash. 1/3 of a Mile off, and 10 or 12 Boats nearer than ours. We were not near enough to distinguish the Persons, or know one Man or Boat from another. Took it to be the opinion of the whole Crew that the whale belongd to the Doans and heard Wheelden and others say so. And fully expected that Wheeldens Evidence would have been for Doane.
Jesse Newcomb, now a Master. He was in the Boat with the 2 Newcombs. Nickerson hove and fastend above Water. Saw 2 Boats tow, one of 'em the Indian Boat.13 I thought I saw the Iron enter the Whale. Saw 2 Boats tow together about 50 Yards. The general Voice of the People it was Doanes Whale in other Boats besides his.
Jno. Chase. Saw Nick, deliver his Iron at the Whale and throw the Coils out of the Head of his Boat. And saw Gage give the 2d. Iron. Then saw Nicks Boat, wheeled or winded round. Heard Gage I think say Nickerson veer out your Warp.14 Both towed away together about 100 yards. Then saw Nick. loose. Nick killed the Whale by lancing her. Saw him launce her in a good Place, and she spouted Blood immediately.
Vid. Depositions of Saml. Howland, Benja. Bussley, Elijah Blush { 81 } vs. Jno. Chase's deposition. Attempts to prove him distracted but no Lyar. Blush says, never heard any Body say but Chase was a Man of Truth.15
David Welts. Heard Doane offer Gage to leave the Dispute to Men.
Additional Evidence. Examine this Deposition if reyled on of the other side.16
Timothy Right, Simeon Tobey and Jona. Child, to be put in Ballance vs. Amos Otis's Deposition.17
Captn. Nat, Ellis. Vox Populi.
Benja. Fessenden. Adams blamed Gage for not leaving the affair to Men because several Persons on the Spot were positive that Nickersons Iron was fast when Gage hove in his. Edd. Dillingham Ditto.
Chillingsworth Foster. Never heard but Chase was a Man of Truth.
Thos. Mayo. Gage took the whale away by Force.
Nathl. Bassett a Deacon, Jabez Crowell and Barnabas Eldridge Depositions vs. Zechariah Smalleys Deposition.
Reuben Doane, Barnabas Chase, and [blank left in MS] against James Gages Deposition about the general Talk and something said by Joseph Doane that he should not have stirred but for setters on.
Saml. Burgess. Gage said there was Nickersons Boat and his and they wanted no Help. And that Nickerson claims Part in the Whale then spouting Blood.
Mem. Captn. Jasher Taylor confessed before the arbitrators last June18 that Richard Godfrey one of Nickersons Mate Boats19 did put an Iron into the Whale after Nickersons drew, and it remained in till she was dead.
David Okelly, one of Gages Depositions20 says that Nicks Boat and Gage's Boat were partly crossing each other, just before he heard { 82 } Captn. Tayler say that Gage was fast. Which agrees with our Witnesses and militates with theirs.
Mr. Paine.21 One Rule in our favor. We are in Possession and Possession is a good Title, untill a Person demands who has an absolute Right.
Q. Who the first Occupant?
Custom. Evidence dont support the Proposition. The Witnesses seem to evade the Point. Odd Custom. (Meaning I suppose not reasonable).
Inconsistencies and Contradictions in our22 Depositions. Sufficient to destroy them.
6 Witnesses in the same Boat, not so good, as in different Boats.
Rob. Newcombs Deposition. Inconsistency in the situation. 40 yards distance. Nothing parting us and Gage from the Whale but Nick[er]sons Boat. In the after Questions,23 We were a little quartering upon the Whale. Answer Gage was a broad side of us. Dont know whether starboard or larboard. How is this possible.
Nickersons24 transient View, of Nickersons halling in his Warp.
Silas Newcombs Account different about parting &c. us and Gage from the Whale, &c.
Confused and disorderly in that Boat, so that they could not observe truly.
Differ about the Distance, the fathoms.
Silas says he never saw the Iron Pole afterwards.
Answer, not till I saw Nickerson hawl it into his Boat. Then the Iron was bent.25 Contradiction.
Robt. saw the Iron Pole the whole Length above Water. This Otis says inconsistent with Silas's Account of the Whale and Iron Pole going down together.26
Silas says 60 or 70 foot from Nick, when he hawl'd in his Iron, 12 or 15 fathom when he struck, 60 or 70 fathom.
{ 83 }
Iron might be bent, i.e. might be fastend and bent and drawn before Gage enterd. Answer true, but prooves the fastening. Might be bent on Purpose. Needle and Barn.27
Silas says 18 yds. Rob. 36. Silas 50. That the 2 Boats towd together.
Arch. Harding. No. 7. Differs from all in Newcombs Boat, about the Position. He says Nick, and Gage met the Whale Head and Head. This Deposition a finished Piece of Cookery.
There might be an Iron Hole, and yet Nick, never fast, for Mayo might have been fast to her.
Mayo did not know who struck. Harding did. How could this be— one says a quarter of Mile, the other a Warps Length.
Jno. Chases dont mention the Whales going down. Whalemen remember as exactly as Hunters.
Their Witnesses to invalidate ours.28
Mayo and Harding. Barnabas Tayler. A Minor. Mayo said He would clear from Doane for a Trifle. Never heard Mayo say he saw an Iron hole. Saw Adams &c. try several Holes &c. Did not hear any Body talk about an Iron Hole.
Jacob Hawes, a Lad. 3 Papers. Tayler desired Doane to come and view and see if he could find an Iron Hole, to claim her by. I search'd, and found no Holes, but what Irons were taken out at. Nick, worked, 'tho forbid. Saw Nick. and Indian change Ends. Saw Godfrey offer to tow, being a Party to Doane's side. Gage refused unless a free will offering.29
Levi Bearse, No. 16, a Lad in Adams's Boat. See Nick'. launce her diverse Times, and heard that Godfrey put an Iron in.
David OKelly, a Lad. No. [ . . . ] Evidence. Whale and Nickersons Boat crossing each other. Militates with Wheelden.30
Josa. Knowles. No. 8. with Syl Hopkins. Silas Newcomb in a Passion. Damning the freemasons.
Thos. Chase. No. 28. Heard Silas Newcomb say, he did say the D—l take the freemasons. Hawld in his steering oars.
{ 84 }
Abner Chase the same as Thos. Chase. Said he did not row any farther to the best of my Remembrance.
Amos Knowles Jnr. No. 22. Robt. and Silas Newcomb both told me, Whale turned off, and Lot Gage struck the Whale directly. Nothing of Nick's striking in March 1766 in Kings Road that Doanes Boat struck her &c. They said that Doane was so unfair with them that they had rather Gage should have the Whale than they.
Amos Otis. Have since understood, that Adams run foul of Lot Gage. And heard a Voice to Adams to veer Warp. The Whale as near again to the Newcombs as they to me. Yet heard the Disturbance in their Boat. Adams told him he ran foul of Gage—did not see Gage fast—that Adams and Gage both in one—Newcomb more noisy than common. Heard several People say there come the crazy Newcombs. Heard Silas was crazy, after he came home.31
Saml. Howland vs. Jno. Chase. Same Boat—thought Nick's was not fast. No Way ahead.32 Saw Nick. hauling Warp when Gage struck. Jno. Chase out of his Head sometimes—jumped overboard. Not a lying fellow—behaved well that day. To the best of my Remembrance he seemed to signify, that Gage had the best Right.33
{ 85 }
Elijah Blush. No. 36 . vs. Jno. Chase. Never call'd a Lyar that I know of.
Lem'. Crocker. Chase got overboard, stripped off his Cloaths &c.
Asa Croker to the same fact.
Jona. Bassett. No. 30. vs. Jno. Chase. With Josa. Godfrey. Jno. Chase Harpoonier. Never heard Chase say that Nick struck. Knew nothing of Chases Truth &c.
<W><Boat came along close to our Boat>
Whale came along with Gage close to our Boat no other fast to her. Saw no 2d Iron put in.
Benja. Busseley No. 17 vs. Jno. Chase. Heard Josa. Godfrey ask who struck first &c. and him and Jno. Chase talk about it after. I heard him Godfrey say, he could not tell who would get the Whale, but he believd it belonged to Gage. Chase said it was devlish strange, they could not tell who struck at first. One time he said he believd that Gage struck the Whale first. Understood by him or others, that Gage was up or near up in the Chase. Paine says he said he was far off.34
Saml. Linnell Junr.[ . . . ] No. 26. vs. Elisha Linnell. Elisha told me that he saw Doanes Boat hawl in his Iron as Gage dart[ed] and that the Whale belonged to Gage.
Their Witnesses off the fact.
John Wheelden. No. 1. 3 Papers. Vid.35 and Vide Micajah Siers. As explicit as any of our side, and Wheelden wasnt.36
{ 86 }
Barnabas Eldridge. No. 2. Not acquainted with Nick at that time. Indian in the Head when I first saw that Boat. Both Nicks and New-combs 6 handed Boats.37
{ 87 }
John Tarrow. No. 3. With Wheelden. The Whale went under Water, 8 or 10 Minutes. Saw no Boat fast when Gage struck.38
Jno. Wheelden Junr. No. 4. Not fast for Boat had no Way a head. The Whale under swift way. Clear that the loose Whale.39
Jno. Crowell.40 No. 5. 3 Papers. In another Boat in the Stern. According to my apprehension Nick. missed, because not under tow. About 50 or 60 fathom, before Gage struck. Wallace's Character not { 88 } good for Truth.41Boats all round cant tell the Number. Afterwards told it was Nickerson. Dispute between Wheelden and Homer.42
Silvanus Hopkins. Conclude missed her because his Iron Pole when [i.e., went?] all under Water. Mem. knows nothing of Nickerson.43
Wm. Clark, same Boat No. 7. Saw Gage fast and no other.44
Seth Baker, in another Boat. Jno. Cash his Harpoonier. Dont know Nick. Knows there was no Boat fast when Gage struck. Vid. this Deposition (Mem. not the same Whale). Saw no Indian in that Boat, that struck and hawld in Iron before Gage struck.
Jno. Cash. 2 Papers. No. 13. Encouraged to row, by being told several had hove and missed. No other Boat fast but Gage, no other towed away with him. Steersman said he saw one quoiling in his Warp. Heard of Difference between Homer and Baker.45
Zechariah Smalley. Nota. And several Depositions vs. this.
Levi Bearse. Additional Evidence, No. 16. A Man said We had better go aboard and git some Victuals for we were never fast. Nick— d—n your Blood hold your Tongue. Q. Who was that Man, that was so hungry. ¼ an Hour after the Whale was dead. Mem. never mentioned it before to any Body.
{ 89 }
Jno. Bartlet, David Rider, Thos. Rider, Jno. Thatcher all to Wheeldens Character. Bartlett rather to shew that he told the same story 3 years before.
Isaiah Eldridge. 14 Years an Endsman, a Boat would go 15 Rods, after the oars still, in a smooth sea.
Nathl. Delano. 12 or 16 Rods and have considerable Force.
Saml. Tayler, a Minor, Son to Jasher. Doane said I would not give a Copper for our Chance, but We may scare 'em and make em leave it to Men. Mem. at Law.
Gideon Baty. Sears said they did not <strike> fasten so as to bring the Boat fairly under tow.
John Lothrop. A Minor. Doane desired Tayler to search the Whale well when he cutt her up.
James Gage. Doane said, if it had not been for setters on he should not have been concerned. Would not give a Copper for an Iron Hole. Brother to Lot Gage.
Jno. Gage Jnr.
Joh. Bassett. Did not know Nick. Explanatory of his Deposition of our side.46 In the Boat with Crowell.
Seth Whelden Jnr. about Homer &c. Dispute between Homer and Whelden.
David Welts.47 Custom vid. &c.
Paine. 2 Boats Newcombs and Wheeldens the most positive.
Our Boat the nearest. In the best situation to observe, calm &c. Newcombs, disappointed, tumultuous and inattentive.
Whelden a Man of good Character for Truth.
Our Witnesses as positive, as explicit, as circumstantial as theirs and more so.
More necessary to suppose our Witnesses perjured, if their accounts not true, than to suppose theirs so, if theirs not.
Iron being bent. Silas mistaken. For no Person takes Notice of this but Silas. Oar crooked coming out of Water.
Calling to Adams or to Nick. [to] veer warp, contradictory and counterpoised.
{ 90 }
The Iron Pole above Water. Mem. Hopkins concluded one missed because his Iron Pole went under Water.
4. Witnesses in Wheeldens Boat, and more to be believed than our 8. <Crowell says that the Whale went 50 or 60 fathom before Gage struck, and concludes Nick missed because> &c.
Hopkins says she was a loose Whale.
Haws saw Nick hawl in his Iron before somebody told him that Gage was fast.
Cash says Whale towed Gage and no other Boat.
Seth Baker says, Gage was the first that fastnd, and that no other Boat was in Tow.
S. Howland in the Boat with Chase—thought Nick. not fast and saw Nick. hawl in his Warp before Gage struck.
11. Witnesses from 5 or 6 Boats. Positive to the fact in Paines favour he says.
All the rest of the Evidence to corroborate or invalidate these Testimonies.
Mayo's Evidence of the Iron hole.
Turning or winding round, she might have a sheer given her.
Doane would not examine for Iron Holes.
Zech. Smalleys Deposition. Vid.
Mr. Otis.<Gage>48 if by Custom then not by Equity.
The Rule about positive and Negative Witnesses,49 has Exceptions, e.g. 20 Witnesses that heard no Pistol 2 did &c.
Our Witnesses have recollected themselves at a great Distance from the Time.
But one Witness that saw the Iron Pole sticking up above Water, and but one that saw the Iron bent. Impossible but that other People should have seen these facts if true.
Towed away together. They speak of this in a manner and in Language that all Whalemen must laugh at.
Eldridge looked round, therefore was up and might have seen the Iron Pole above Water.[ . . . ] Nearest when Gage struck. Whelden so too. Nota. Iron Pole came above Water as we pasd Nickerson. Mistakes Newcombs.
Tarrow, an Indian with Whelden. Missed because not a sufficient way of Head. Mem. liable to mistake Newcombs for Nick. not know• { 91 } ing either at the time. Tarrow dont agree with Whelden about the general Call.
Stray of the Warp, as streight as an arrow, enough for a Rope dancer.
Jesse Newcomb, thinks she ran ¼ of a Mile.
Jno. Crowell in the stern of Jo. Bassetts Boat. Saw a Man which afterwards proved to be Nick. Missed because not way of Head enough. Vid. James Wallace's Deposition.
Syl. Hopkins. Missd. because Iron and Pole went all under Water. Newcombs. Soon after saw Gage. Never saw Nick throw. Proof that he had a very care<full>less View.
Otis says, if Nick. struck so notoriously, he must have seen it and the Iron Pole above Water. I say, it proves he had no good View.50
Josa. Knowles, and a No. of Witnesses swear that Silas was d——g the freemasons and his Boat in Confusion.
David OKelly a Minor with Jasher Tayler. Whale and Nicks Boat crossing each other. Nicks no Way of Head. Tayler desird Doane to come and see her cutt up and search for Iron Holes.
Otis confounds Nick. with Doane, when he blames for not viewing the Whale for Iron Holes.51
Why did not they view the Whale.
We fail in the essential fact that both Boats fast together. No Evidence of this. Answer 8 Witnesses are some Evidence.52
Jacob Hawes. A Minor. At the stern Nick pulling his Iron into the Boat. Saw Newcombs at a considerable distance to the stern of our Boat. Offer to come and view, when cut up, or turnd over.
Saml. Howland in Godfreys Boat with Chase. Very sure Nick hauling in his Warp before Gage struck.
Seth Baker <Harponier> Steersman to Jno. Cash. Whale run a Quarter of a Mile. &c. Knows not Nick nor Gage. Saw em haul in his Iron. Round by the last Boat that hove before Gage, while she was coiling in her Warp in the Bow of the Boat. Much about Robert Homer.
Jno. Cash. Much about Robert Homer. &c.
Amos Otis. These advantageously sit[uate]d. to see. Answer—vid. Homer's Deposition.53
Zech. Smalley. What Nick. told him. Did not care to say, he was fast.
{ 92 }
Levi Bearce, a Minor. In Adam's Boat. About 40 Rods from the Whale when Gage struck. Mayo said if they would give him a Piece he would prove the Doanes were not fast. This Deposition confirmed by OKelly and Haws's.
Busseley to Wheldens Character and Consistency.
Bartlett Ditto.
Josa. Eldridge54 and Delano. Construction of a Whale boat.
Amos Knowles Jnr.
22. to the Character of Whelden and that Newcomb said Gage struck her directly, after they missd her. Rather Gage should have her than Doane.
Saml. Tayler. Doane said he would not give one Copper for our Chances, but We may scare 'em to leave it to Men.
Baty. Something like the former.
Jno. Lothrop. Heard Tayler tell Doane to come and search the Whale, and Doane said Well Well, do you search her well.
Saml. Linnell. Vs. Elisha Linnell. Heard Elisha say he saw Doanes Boat halling in his Iron and that she was Gages clear enough.
Barnabas Tayler. Like OKelly's.
Thos. Chase 28. vs. Silas Newcomb. D—l take the Freemasons. Otis said bro't to shew that Newcomb told a different story. But no such matter.55
Jona. Bassett. Did not see any Boat fast, when Gage struck.
Lem. Crocker 31. vs. Jno. Chase that he was delirious at Times. But no Lyar.
James Gage. General <Gage's> Talk. Dont care for an Iron Hole.
Jno. Gage. The Iron came up at the Stern of the Boat of Newcombs not Nicks.
Jo. Bassett. Both sides.
Elisha Blush.56 General Talk.
37. Seth Whelden. Conversation with Homer and general Talk.
38. David Welts. Custom. I took it from Jno. Wheelden that she belonged to Coll. Otis.
Jno. Lothrop 39. The same day or a day or two after the Whale was killd I heard Whelden say that Gage killed the Whale and that she belonged to him.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 184. Appended to the minutes are notes made by JA and an unidentified assistant on several of Gage's depositions. These have been printed as footnotes at the appropriate points below.
2. That is, depositions in Doane's favor. The text to note 2147 below is apparently the material from which JA argued.
3. That is, Captain Knowles' deposition is also pertinent on these two questions. See JA's Interrogatories (Doc. III) on mateship and custom.
4. Trying: “The process of extracting oil from blubber by heat.” OED. Barvell: “A leather apron.” OED. See Andrews, ed., “'State of the Trade,' 1763,” 19 Col. Soc. Mass., Pubns. 384 note (1918). Presumably here, by extension from the leather apron worn in cutting up the whale, the term means the process of cutting up.
5. Apparently the same David Welts, or Welch, who testified for the other side also. See note 1642 below. The notes of JA's assistant on Welch's deposition for Gage are as follows:
“Davd. Welch. <Otis> Gages witness when summoned by them says some said the whale belonged to Doane some to Gage. He Cant Tell which was the most and at the Time he Gave Evidence before he heard Jno. Whelden say the whale belonged to Coll. Otis—that Disputes used to be settled by arbitration—that Claimers Gave in their Claims and that sometimes bad Judgment was given and that the Doanes was Reconed Just men in the whaleing bussiness—in answer To Coll. Otis's Question. And that when he Claimed by the head of his Iron no boate was fast to the whale and no other thing To Claim by for the whale had Ran Loose above a mile. And that if he had held tow till another Iron was in he need not produced his Iron head. And the 2d striker Could have had no more than his Call or 8th if his Iron had been in before the Deponent's broke or Drawed out. And further says that in the whaleing bussiness he has heard of Instances of puting in Iron on the presumtion of Gaining a Call or 8th but then in that Case it Lyeth with the 1st striker Either To Give or not but saith if he is the first striker and another Iron is put in before he is Loose the possession Remains in the first striker. And that the whale in which his broken Iron was was not mortally wounded. But said Iron, was in the whales small. He Got a Quarter altho she was Cut of when Runing away.” Adams Papers, Microfilms, Reel No. 184.
The small of a whale is “the part of the tail in front of the flukes.”OED.
6. Lord Mansfield was said to have argued similarly for the application of custom: “I remember the first case upon that usage [the Greenland practice], which was tried before Lord Mansfield, who was clear, that every person was bound by it, and said, that were it not for such a custom, there must be a sort of warfare perpetually subsisting between the adventurers.” Fennings v. Lord Grenville, 1 Taunt. 241, 248, 127 Eng. Rep. 825, 828 (C.P. 1808) (Opinion of Chambre, J.), cited in Holmes, Common Law 168. See note 17 above.
7. Compare the deposition of Silas Newcomb, 4 April 1766, SF 172973:
“Silas Newcomb of lawful age testifyeth and saith that he being on a whaling voiage at the Labradore Shore and sometime the latter Part of June or the beginning of July last past I fell in Chase of a whale and we hove at her But did not fasten to her so we hauled in our Iron and Asa Nickerson Shot in upon her and struck her and hove over his Coils of warp. Then the whale went down, and as she Rose again one Gage met her and hove his Iron into her, nothing parting us and Gage But the whale and Boat. And Nickerson and Gage towed away together about Two Boats length. We Rowed up and asked them what they would give and I heard no answer, then we asked again and I heard Gage say I forbid any person to Touch that whale for she was in his Possession. Then we Eased away and I saw that Nickerson was loose from the whale. Further I saw that when Nickerson's Iron struck the whale the Iron hit the whale above water and Judge Nickersons Boat was then about Twelve or fifteen fathoms from our Boat when he said Nickerson Put his Iron Into said Whale and Gage I judge was about forty Yards from our Boat when he put his Iron Into the whale. And further saith that one Thomas Mayo of Harwich struck the same whale in his Judgment before said Nickerson did and held to her near a quarter of a Mile or more before his Iron drew and after that the said whale ran a Mile and half at least before said Nickerson struck her, and further saith that when Nickerson struck said Whale he saw the whale and Iron pole Go down Together and that he did not see said Iron or pole afterwards: further after Gage had forbid any Body's Medling with the whale Jashur Tayler came up, Eased away, and asked who struck the whale and I Told him Asa Nickerson. Then he answered Capt. Gage is fast to her and he is our mate Boat and then pulld away.”
8. See the deposition of Atkins Smith, Truro, 6 March 1766. SF 172962.
9. See the deposition of Joseph Cable, Eastham, 17 Feb. 1768, SF 173117, in which there is the further statement “that the said Newcombs contended about their being fast to the same Whale untill Nickerson Struck her and they saw their own Iron pole at the Stern of the Whale boat.”
10. See Paine's summary of Samuel Linnell's deposition, text following note 3460 below. See also note 3965 below.
11. This probably refers to Thomas Mayo, who was fast to the whale and then lost her before Nickerson struck. See note 733 above.
12. Bassett also gave a deposition for Gage in which he apparently sought to qualify his testimony here. See text at note 4672 below. See Otis' question apparently aimed at Bassett's credibility, note 3965 below.
13. That is, Nickerson's boat, one of the crew of which was an Indian. See note 3763 below.
14. Slack off your line. See OED.
15. See these depositions as summarized by Paine, text at notes 32-3458–60 below. Compare Rowland's interrogatories, note 3359 below.
16. Welts or Welch apparently gave a deposition for each side. See note 531 above.
17. See the deposition of Amos Otis as summarized by Paine, text at note 3157 below.
18. Taylor's earlier appearance was at the two-day hearing held on 20–21 June 1769. See note 14 above. His testimony does not seem to have been relied on by either side, but he would probably have been favorable to Gage. See note 733 above.
19. That is, a boat from a ship with which Nickerson's ship was “mated.” See note 6 above.
20. See O'Kelly's deposition, text at note 3056 below.
21. JA's notes of the arguments of Paine and Otis for Gage comprise the remainder of Doc. II.
22. That is, Doane's.
23. Probably referring to the questions asked during the taking of the deposition, following the deponent's statement.
24. Apparently an inadvertence for Newcomb.
25. Silas Newcomb's deposition, set out, note 733 above, contains only the statement that he never saw the iron afterwards, and not the remark that the iron was bent. JA noted the latter, but not the former, statement, however. See text at note 733 above. The remark is thus either from a subsequent deposition given by Newcomb or, possibly, from his answers to interrogatories, neither of which we have.
26. Apparently James Otis' comment on the testimony.
27. Thus in MS. The reference is unclear.
28. That is, Gage's to invalidate Doane's.
29. JA's assistant says of this deposition: “In the same boate with Clark. Viz. Taylor a party.”
30. See notes on this witness by JA, text at note 2046 above. His assistant's notes on this deposition follow:
“David OKelly a minor in Capt. Jasher Taylors boate millitates with Wheeldens Deposition and all his Company as to the Distance of Nickerson and Gages boates when strikeing the whale together with the scituation of their position and the Distance of time and thereby Corroborates the Newcombs Depositions and their boats Crew &c. Notes made on the Coppy [i.e. of the deposition] more fully. This to compare with Jacob Hawes' Deposition allso.”
31. The notes of JA's assistant on this deposition follow:
“Amos Otis' Deposition proves that the Newcombs was up aboute as near the whale as they say in their Deposition: but it appears he Did not observe when Either Nickerson or Gage struck the whale. See Right Childs and Tobey, Depn.”
32. That is, Nickerson's boat was not making way through the water, which it would have done had it been fast to the moving whale.
33. The notes of JA's assistant on Howland's answers to unidentified interrogatories follow:
“Saml. Howland sworn 1769 has Lived in the midst of the whalers of Gages party aboute 3 years and an half since the Suite was Commenced first and brought to Give his Evidence at Last which Does not appear verey fair and Consistant.
“He says the head of their boate was toward the whale's head. He says he saw Nickerson Dart A. Yes. Did he fasten A. He thought not.
“He Did not see Nickerson Tow and his Answer To Question 9 is Saw Nickerson hawling in his warp Before Gage struck: and his Answer is To Question 10 that to the best of his Remembrance he thinks it was the same whale that Nickerson flung his Iron at and that he is Verey sure of it: and that he saw Gage strike her after he saw Nickerson hawling in his warp, which is his answer To Question 11th. Then he Goes on and says their people wondred the Contending parties Did not Leave the affair to masters of Vessels To settle it as Usual and that their people said they Reconed that the whale was a Loose Whale when Gage struck her but Cant Remember he heard Chase say any thing aboute her nor Cant Remember that Chase was present at the Conversation. Goes on to say that at sometimes John Chase Drank To much and Did not behave well for he Kept a Journal and said he Could Keep as Good a one as the Master. And that he went in to swim with his Cloath on once or twice and that he struck the Deponent with his fist &c. but Cant say Chase's memory is bad nor that he is not a man of Truth &c. nor Can he pretend to say near the Time of Day the whale was first Discovered wether in the morning noon or Towards night. But a Good many boats in pursuit of her near her in Chase upon her allmost up with her. Answer To 42 Question when he first saw the whale she was Comeing Right at us he says and we was Rowing toward her. I saw Gage fast to her and Nickerson hawleing in his warp. He saw him Dart and see him hawleing in his warp. He saw Gage heave in his Iron: he afterwards says he was aboute 80 or 100 fathoms from her. Cant tell whether Rowing or Lying on their oars. Query whether he Could Clearly Distinguish boats and presisely whether a boat Veered warp or halled in Especially in the Direction of head To head, the boats and whale, the oarsmen, back to [i.e. because facing aft].
“He saw no Iron put in after Gages as he says. And he saw her a few minutes after she past them Even To Rowing 80 or 100 fathom. I am at a Lost to know which way the boat Could turn so as for the Deponent not to have a much Clearer View than he had when meeting the whale: Query whether this agrees with the witnesses on the same side that say in aboute 1 minute after Gage struck that Adams second[ed] an Iron. He says he observed Gage from the time he fastened to her. Cant tell whether he made a General Call or not and answers To Question 61 that he is Verry sure he saw Nickerson hawleing in his warp when Gage struck and thinks the warp was in the pins or Chocks. He says it was Verry soon a small space of time after Nickerson hove his Iron when Gage struck but Cant say how Long. Believes the same Riseing of the whale and is pretty sure it was—and never saw the whale Go Down from the Time Nickerson Darted till Gage was fast all which millitates with Wheelden and Tarrow and others of the same side who say the whale Run the Distance of 80 or 100 fathom between Nickersons and Gages Darting at the whale and some of them say a Greater Distance.”
34. Comment by Paine on the testimony.
35. JA's notes on this deposition are as follows:
“Captn. John Wheelden. [Heard?] Barn. Eldridge saw Mayo strike a Whale. She towed sharp ¼ Mile. Iron drew. 2 Whales together when Mayo struck. One kept along shore. I thought it the same Mayo struck. But since found I was mistaken, for Tayler told me no Iron hole. Newcombs Harponier hove at the Whale and missed. As he stoppd to hale in his Iron We got by.
“Nickerson flung at her. His Boat shot ahead a little and then he hawled in his Iron and Warp. As I went by Nickersons Boat, I saw them hawling in their Iron and Warp and think their oars not shipped, and the Iron Pole came above Water as we passed 'em at his stern. The Whale run after that 2 shot of Warp[i.e. two segments of line probably of 120 fathoms each] before Lot Gage put his Iron into her. 140 fathom. Upon his striking he made a general Call. He said get in your Iron as soon as you can, but in less than a Minute Adams seconded in an Iron, and Gage and he towed away together. When Gage fastened, Nickerson 70 fathoms off and Newcombs a great deal farther off. Newcombs did not mention Nickersons striking. Nickerson said he had not his Warp in the Pins, and in such a Hurry he had not Time to call before Gage struck. Saw Nickerson work on her, and Gage forbid him. When Nick. hove, he was about 20 fathoms from Deponent.”
The following comments were appended in the hand of JA's assistant:
“Observe that the whale Runing above 50 Rood after Nickerson was Loose if fact must put the matter in Dispute so Intirely out of the Question that it seems to me Mr. Wheelden must utterly mistake with Respect to the boates Engaged: or must mistake the time when Gage first put his Iron in the Whale. Jno. Wheelden finds himself mistaken aboute 2 whales because Taylor Told him so. Why Did not Whelden Contradict Asa Nickerson when he Queried with him.”
The assistant also commented as follows on Whelden's answers to interrogatories:
“John Wheldins Interogatories
“Observe Wheldens answers. Remarkable with Respects to his particular observations of what Past in the Newcombs boate when in pursuite which Generally is full of noise and bustle and when Whelden was Rowing full speed. He says Robert Whelden Called 3 times the Last time To swear Back on those that had Contradicted his Deposition and so it might be add Infinitum.”
36. Comment by JA.
37. The notes of JA's assistant on this deposition are as follows:
“Barnabas Eldrige Mr. Wheldens Harpooner was in Chase of a whale with Newcombs and others whose Back was Toward the whale in the time of Chase: says that after Sometime Newcombs Harpooner Darted at the whale. Does not observe that he saw it. After which Wheelden told him Nickerson had hove at the whale and was fast. He Looked Round and Replied he was not fast and soon after Wheelden said so too. The Reason of his opinion was Because Nickerson boate had not such way on head as is usual for a fast boate to have. Did not believe he had any head way but what his oars gave him. And the whale Run 60 or 70 fathom before Gage struck her and then is Quite Clear in it that the whale was Loose when Gage struck and that Gage made a Call and in Less than a minute Edwd. Adams shot in a second Iron and Gage and Adams Towed away together. When Gage struck the whale the Deponent was the nearest boate and Does not Remember to have seen Asa Nickerson near at that time and the first time he saw Nickerson afterwards he was behind Gage. He Did not see the Indian untill he saw him in the head.”
The assistant also made the following observations, apparently on Eldridge's answers to interrogatories:
“Barnabas Eldridge says Whelden said Nickerson <Swears the Newcombs Did not> was fast to the whale. The first he saw Nickerson [ . . . ] the Indian was in the head of his boate. He heard on that Day the whale was killed by Samle. Howes one of Gage's mates. The Vessells 4 Leages apart. A sure mark of a boats being fast if she Tows after the whale. And says he Does not Remember that he heard Robt. Homer say any thing aboute it. Cash and Baker men of Probity never Disputed. By the way he allso says Homer is a man of truth. As to the Quarrel knows nothing to the purpose.”
38. The notes of JA's assistant on this deposition are as follows:
“John Tarrow saw somebody thro[w] at a whale which he understood afterward was Asa Nickerson but Concludes Did not fasten because his boate Did not seem to be under such way a head as fast boats have. In two or three minutes after I saw said Nickerson hawling in his Iron. Then in 5 or 6 minutes after saw Gage strike a whale no boate in Tow after her as he saw which he thinks was the same that Nickerson threw at and the Distance of time 8 or 9 minutes after Nickerson hove before Gage struck. His Judgment Is that they was 30 or 40 fathoms from Nickerson when he hove his Iron. And that soon after Gage was fast Wheelden asked him what he would Give. He answered nothing as his mate boates was all Round him and that the Deponent says he Does not know Silas or Robert Newcombs and that he saw no other person thro[w] at said whale but Nickerson before Gage struck her.
“Observe the Deponent Did not know Nickerson in nor Newcombs. So Comparing the Distance of time between the persons throwing his Iron that he afterward <was told>understood to be Nickerson must be the Newcombs. He allso millitates with the other witnesses in Wheeldings boate the same he was in: with Respect to Gages Giveing a Call &c. and Repeats Gages answer when asked for a peice by Wheelden.”
39. Thus in MS. The notes of JA's assistant on this deposition are as follows:
“John Wheelden Jnr. Deposition: says he heard his father say that Newcombs had missed the whale after which he said Asa Nickerson was fast but himself and Eldrige both thought him not fast after which he Gives some matter of othere opinion with Regard to the Distance the whale Run <after> before Gage put in his Iron which he suposes to be a Quarter of a mile but Does not Declare that he saw what passed nor is it Likely he should as his back must be toward the whale.”
See notes in the hand of James Otis (described, note 18 above):
“Questions to aske younge Wheldon wheither he heard any Talke on Board the Vessel while Elisha Lenel [Linnell?] was Present. What it was that was said about her [i.e. the whale?]. Do you think that Stephen Linel's Capacity and Understanding is Equal to Common men in General. Was James Wallis Reconed to be a man of Truth By your vessels Company In General.” SF 173972.
“Question. Are [you] Quite Clear in it that the whale Gage Struck was a loose whale when he fastened to her. Did you during your voiage or Since talke with Joseph Basset about a whale. What did he say to you. Aske Wheldon as to his Conversation with Nickerson why he did not make a General Call. His answer was he could not get his [hemp?] for the [....]” SF 173914 (Verso: “Question to be asked Young Whelden, Joshua Harding, Jesse Newcomb, John Chase”).
40. See an undated deposition by John Crowell 3d, SF 174202, repeating in substance this statement to the phrase “before Gage struck.” JA's assistant says: “John Crowels at a Greate Distance.”
41. Wallace's testimony for Doane appears in text following note 1238 above. See also note 3965 above.
42. See the questions regarding Homer in Gage's interrogatories, Doc. IV. Homer's testimony, indicating a prior inconsistent statement by Wheelden, appears in text following note 1238 above.
43. The notes of JA's assistant on this deposition are as follows:
“Silvanus Hopkins says <he heard> he saw somebody thro[w] at a whale. He Did not see Nickerson neither thro[w] at the whale nor no other. He millitates with John Whelden, Barnabas Eldridge, Jno. Whelden Jnr., and Jno. Tarrow with Regard to the Distance that Newcombs was from Gage when Gage fastened.”
44. The notes of JA's assistant on this deposition are as follows:
“Willm. Clark says in fact nothing to the purpose his Depn. being wholly negitive or hear say with Respect to what the Newcombs said. Viz: that Sometime that Day they or some one in their boat said Gage struck the whale. If he heard such Talk it is Reasonable To Suppose he might mistake them by heareing them say Gage is now fast or to that purpose or might not attend to all that was said.”
The assistant's notes on Clark's answers to interrogatories are:
“Clark swears somebody hove at the whale as his stearsman Told him but Called one boate and another boate but [sentence incomplete in MS].”
45. The notes of JA's assistant on the depositions of Baker and Cash are as follows:
“Seth Baker and John Cash says that he saw several Boats Dart at the whale. He thinks none was fast but Gage when Gage struck but that several boats was near the whale. After some time saw 2 boats Tow away. Did not see when the other put his Iron in. The 2 boats he saw Tow was Likely to be Nickerson and Gage. The Reason is he soon Turned his back To them. His harponeer Cash says he saw no other boats fast at all and he had much the best Chance to see as they Rowd away for his face was then Toward the whale and it was probably the time between Nickersons Iron Drawing and Adams puting in his Iron that Cash perce[ive]d no other boate fast.
“Homers Deposition To Encounter these.”
46. JA's notes of this deposition appear in text following note 1137 above. His assistant's notes on this deposition are as follows:
“Joseph Basset says at a Greate Distance.
“Mere Guess and tho he swears he saw Asa Nickerson miss the whale he says afterward he was told so.”
See note 3965 above.
47. See notes 531, 1642above.
48. This may be an inadvertence for Doane, or JA may not have recorded Otis' thought completely in the following phrase.
49. See Gilbert, Evidence 157: “One affirmative Witness countervails the Proof of several Negative, because the Affirmative may swear true, and the Negative also.”
50. These two sentences are a comment by JA, perhaps for use in rebuttal.
51. Comment by JA.
52. The last phrase is a comment by JA.
53. The last phrase is a comment by JA. For Homer, see note 4268 above.
54. Apparently Isaiah Eldridge, whose testimony appears with that of Delano in text following note 4571 above.
55. The last two sentences are a comment by JA.
56. That is, Elijah Blush. See text following note 3359 above.

Docno: ADMS-05-02-02-0005-0001-0004

Author: Adams, John
Author: Otis, James Jr.
Date: 1768

Interrogatories for Doane1

Court of Vice Admiralty, Boston, 1768

1. Was you on Board a Whale Boat with Asa Nickerson, on or about the 21st. of June 1765, in the Streights of Bellisle, and to what Vessell did said Boat belong, and who was Master of said Vessell?
2. Did you see the said Asa Nickerson, strike any Whale or Whales, on or about that Time in said Streights, if you did in what manner, declare all you know herein.
3. How and from what Circumstances do you know the said Asa did strike a Whale at said Time, declare in particular what you know relating thereto.
4. Was there at that Time any and what Boats near the Boat on which you was, and whose Boats were they, and at what Distance from your Boat, when said Nickerson struck said Whale?
5. Did you afterwards See any other Person put an Iron into said Whale, and who?
6. How long was it after said Nickerson had struck the said Whale, before you saw any other Person put an Iron into her?
7. Was said Nickersons Iron in said Whale when you saw the Iron put into her by Lott Gage, declare all you know herein.
8. Did said Whale, after She was struck tow said Nickersons Boat any Distance, and what other Boat, and for how long did you see them tow together?
9. Did said Nickerson with his Boats Crew, together with any other Boats Crew and what, help to kill said Whale?
10. Did you hear any Person forbid said Nickerson and his Crew to assist in killing said Whale?
11. Did you after said Whale was killed, hear any Person and whom forbid Said Nickerson from towing said Whale?
12. Did you see any Boat after said Whale was struck by said Nickerson foul of Said Nickersons Boat and whose and how long after?
13. †Did the Iron struck into said Whale by said Nickerson, remain any, and what Length of Time, in said Whale. † Omit this Q.
14. How long was it, after said Gage, put his Iron into said Whale, before said Nickersons Iron drew out of her? Declare all you know.
15. At what Distance was you from Nickersons Boat when he struck the whale?
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16. Of What Bigness and Value was said Whale according to your best Judgment?
17. In what Direction was Nickersons Boat to the said Whale when he struck her?
18. Did said Boat shoot a head after the said Nickerson struck said Whale or did she veer round. Was it occasioned by the oars or the towing of the Whale by the way. Declare particularly all you know herein.
19. Have you been for any Time and how long acquainted with the Whale Fishery and the Customs thereof.
20. What, according to the Customs of Whalers, gives the Possession of a Whale? Declare particularly all you know herein.
21. After the first Strike of a Whale, and while his Iron is in her, if any other Person by Calling or Swinging to or of his own accord, put another Iron into her and then the first Strikers Iron Draws, Does the first Striker loose his Possession according to the Customs of Whaling and Right to said Whale? Declare particularly all you know herein. Quaere of this Q.
22. Is it, or is it not necessary, according to said Custom to give the Possession and Right of a Whale to the first Striker, that his Stroke should give her a mortal Wound, or that his Iron should remain in her untill She be dead, declare all you know herein.
23. Did you ever hear Joseph Doane Demand of Lott Gage said Whale and when and where, and what was the Answer of the Said Lott Gage, declare all you know herein.
24. Did you ever hear the Said Joseph Doan request the Said Lott Gage to refer it to indifferent Men, well acquainted with the Customs of Whaling to decide whose Said Whale, immediately on the Spot, and When and Where and what was the answer of Said Gage?
25. Did you see Said Whale after she was dead, did you See any Hole or Holes in Said Whale, made by an Harpoon, or how many or any when the Iron was drawn?
26. Do you know there was a Mateship between Joseph Doane Senr., Joseph Doane Jnr., Stephen Sears, and Thomas Jones, while they were whaling, in the Streights of Bellisle, on the Labradore shore in the Year 1765.
27. Was it generally understood that there was such a Mateship?
Commission [to] David Gorham Esq. and John Freeman, Esq. if [need be].2
1. In JA's hand, undated, SF 172907. See note 18 above.
2. These were Barnstable County justices of the peace before whom the answers could be sworn. See Whitmore, Mass. Civil List 146. Compare note 11 above.

Docno: ADMS-05-02-02-0005-0001-0005

Author: Adams, John
Author: Otis, James JR.
Date: 1768

Interrogatories for Gage1

Court of Vice Admiralty, Boston, 1768

Interrogatories In the Behalf of Lot Gage and Partners In the Case of Joseph Doane and others against him and Partners.
1st. Was you on a Whaling Voyage In the Streights of Bellisle on or about the 21st. of June 1765.
2. What Boat was you in and what Vessel did you belong to.
3. Do you remember that on or about that time there was a Whale Killed by Lot Gage and others the Property of which whale has Since been disputed by Joseph Doane and others.
4. Did you see Lot Gage Faste to said Whale.
5. Was there any other Boat fast to her when Lot Gage Struck her.
6. How Near was you to Said Whale when Gage Struck her.
7. Did you Sit down or stand up tell all you Know about it.
8. Did you see Asa Nickerson that day.
9. Did you See him or his harpooner Dart at said Whale.
10. Did he fasten to her or Not.
11. Did you See him hawling in his Iron and Warp before Gage Struck the Whale he fastned too. Tell all you Know about it.
12. Did you at that time Know Silas and Robert Newcomb.
13. Did you see them at the time Gage was fast to the Whale or before.
14. What was the Newcombs Conduct on that Voyage according to your observation.
15. Did you observe that when you fell in Chase of Whales with the Newcombs they were more Noisey then [than] Common.
16. Did that Boat the Newcombs was in go by the Name of the Crasey Newcombs that Voyage.
17. Did you hear that Silas Newcombs was Crasey since he got home from that Voyage at any time.
18. Did you hear Josiah Godfrey your Stearsman say (at the time Mentioned In your Deposition) any thing on Board your Vessel about this Whale and what he Said.
19. Was Josiah Godfrey your Stearsman present at the Conversation aboard your Vessel as mentioned in your Deposition. Tell what you Know about it.
20. Was Robert Homer a Whaling with you in the Year 1765 at the Streights of Bellisle about the 21st of June.
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21. Had you any Conversation with him about the Whale In Controversy and what was it.
22. What was the Capacity that he went in.
23. Was he Not Looked on as a very Raw hand by your Crew and one that had Little or No knowledge about Whaling.
24. Did he Ever Mention to you or the Crew you belonged to any Conversation that he had with John Whelden or his Crew about this Whale.
25. Did you hear any man on Board the Vessel that John Whelden was in say the Whale In Controversey between Joseph Doane and others and Lot Gage and others belonged to the Doanes.
26. Did you hear any Man say so on Board the Vessel you Belonged to.
27. What was the general opinion while you was on the Voyage of the people a Board your Vessel and John Weldens vessel who said Whale belonged to whether to Gage or to whom.
28. Was you a Whaling with Seth Baker in the Year 1765 at the Streights of Bellisle on or about the 21st of June that Year.
29. What did you hear him say when he Come on Board the Vessel you was in about the Whale In Controversy that Same day said Whale was Kill'd or Soon after. Tell what you Know about it.
30. Did you go in an End of a Boat and which End.
31. What was the General Talk of the People at the Streights of Bellisle about the Whale in Controversy that is who she Belonged to tell all you Know about it.
32. Did you hear Samuel Howes talking with John Whelden about the Whale In Controversy very soon after the Whale was Killed Relate The talk Whelden had about her at that time.
33. Had you ever any Conversation with Silas Newcomb about the Whale in Controversy, tell all you heard him Say about it and when and where it was.
34. Had you Ever any Conversation with Captn. Joseph Doane about the Whale In Controversy. Tell all you remember of it.
35. Are you Acquainted or do you Know Asa Nickerson.
36. Had you Ever any Conversation with him about the Whale In Controversy Between Captn. Joseph Doane and others and Captn. Lot Gage and others. Relate the Conversation and tell what you Remember of it.
37. Did you hear any person in Asa Nickerson Boate at the Time Lot Gage was fast to the Whale now in Controversy say that they the said Nickersons boate was not fast to said Whale and that they had { 97 } Better go on Board their Vessel and Get some Victuals and not Contend about her or words to that Effect. Tell all you know about it.
38. Can you tell how Near Seth Bakers Boate that you was in was to the Whale In Controversy when Lot Gage struck her.
39. Was you at one Oar with your Back Toward the Whale.
40. Was not Robert Homer In the same Boat at the same Time.
41. Did he stand up to Look at the Whale and Boats that you Observed.
42. Do you Know of any Boats Besides Gages that was Nearer to the Whale when he struck then your Boat.
43. Was you Near Enough to Gages Boat or the Whale to Know one man from another.
44. How long after you Perceivd the Whale to be fast before you Quitted the Chace.
45. Did you Ever hear it said on Board your Vessel that the Whale In Controversy Belonged to the Doanes.
46. Did you Ever tell any Body so.
47. Did you hear any of the Crew on Board your Vessel say so.
48. Was it not the General Voice of your Vessels Crew that she Belonged to Gage.
49. Did you Ever Suggest to Robert Homer or say any thing like it that you should or Could be an Evidence in Doans favour.
50. Did you Ever Say to Robt. Homer or in his hearing that said Whale Belonged to the Doanes.
51. Was you in the Boat with John Chase at the Streights of Bellisle on or about the 21st. of June 1765.
52. Did you see any thing of the Transactions of Asa Nickerson or Lot Gage at that time. Relate all you know about them.
53. Do you Know Seth Baker.
54. What is his Charecter as to Probity and Truth.
55. Do you Know John Cash.
56. What is his Charecter as to Probity and Truth.
57. Have you heard of any Contention or Quarrel Between Robert Homer and John Whelden or Family, tell all you Know about it.
1. In an unidentified hand, without date, SF 172906. Endorsed: “Interrogatorys on the Deft's side.” See answers of Samuel Howland to some similar interrogatories, note 3359 above.

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

Editorial Note

The majority of John Adams' cases in the Court of Vice Admiralty involved breaches of the British Acts of Trade. The Acts were a coherent body of legislation, enacted between 1660 and the Revolution, which regulated the flow of colonial trade, laid duties on some aspects of it, and established a system of enforcement. The basic regulatory provisions were: that vessels engaged in the plantation trade had to be English- or colonial-built, owned, or manned; that certain enumerated goods produced in the colonies could be shipped only to England or to another colony; and that most European goods could be shipped to the colonies only from English ports.1
This system was designed primarily to aid the English merchant and shipbuilder by creating monopolies in the colonial trade, but it did benefit colonial shipbuilders, and at least some colonial merchants, by assuring them of markets. The system also was an indirect producer of revenue for the Crown, since goods flowing through English ports were subject to duties to be paid there by the importer or exporter. The only duties levied in the colonies before 1764 had their primary effect as measures to support or encourage trade with England, rather than as direct revenue-producers. Thus, although the Plantation Duties Act of 1673, laying duties upon enumerated goods shipped from one colony to another, had the effect of equalizing the tax burden between English and colonial consumers of colonial goods, its principal aim was to make shipment of these goods to England more economical for the exporter than intercolonial shipment. Similarly, the heavy duties laid upon the importation of foreign colonial sugar products by the Sugar Act of 1733 were designed to put British West Indian sugar producers in a favorable position.2
Enforcement of these measures was in the hands of customs officials in the colonies who were responsible to the Commissioners of the Customs in England.3 The colonial officers administered a complicated documentary control system designed to insure compliance with both regulatory and { 99 } revenue provisions. The basis of the system was the requirement that vessels arriving from or bound for parts beyond the seas enter and clear with the customs officers at each port.4 This practice permitted a constant check on each vessel's compliance with the Acts, as evidenced by certain required documents. For example, the nationality of vessels and crews was controlled through the ship's register, a certified copy of the master's or owner's oath that the vessel was English built, owned, and manned.5 A vessel carrying enumerated goods had to give bond on clearing that they would be landed only in an English or colonial port; if a certificate of compliance were not returned within a certain time, the bond was forfeit.6 To ensure that European goods had been shipped in England, the master was required to submit a manifest, showing the nature, amount, and origin of his cargo before his vessel could enter and unload. The payment of duties was also controlled through the manifest and through certificates of the officers on entry and clearance that duties had been paid.7
To prevent violations, the customs officers had broad powers to search vessels, as well as premises ashore, for contraband, and to seize such goods.8 Violators were subject to a variety of penalties, ranging from small fines for failure to comply with administrative rules to forfeiture of vessel and goods for breach of the substantive requirements of the Acts. Although in England such offenses were within the jurisdiction of the Court of Exchequer, in the colonies many of them could be sued upon in the Courts of Vice Admiralty, which had been established in 1697 primarily for this purpose. The customs officers were allowed to bring suit for penalties and forfeitures, receiving a share of the proceeds upon condemnation. Jurisdiction of these actions was concurrent at common law, but in Massachusetts at least, the officers preferred to proceed in Admiralty, where recovery was not subject to the whim of a jury friendly to the offender.9
{ 100 }
There was some opposition to this system at its inception, but after about 1725 the furor generally died down. Historians have seen this reaction as an indication that the colonists had come to accept the benefits which they received in trade with England as compensation for some of the disadvantages which regulation imposed. This was undoubtedly a factor, but it is clear that colonial acceptance was made easier by the fact that after 1725 English policy seemed to be one of deliberately ignoring violations of the system. Revenue collections from the colonies were small, in part because of the regulatory purpose of the revenue measures, but to an even greater extent because of a widespread laxity of enforcement that was known to and condoned by Parliament. Presumably a similar laxity pervaded the enforcement of other provisions of the Acts.10
Adams came upon the scene just as this policy of laxness was being abandoned. New England's trade with the enemy during the Seven Years' War had reached such heights that the Crown made determined efforts to control it through strict enforcement of the Acts of Trade. There was an immediate reaction among the Boston merchants against the Admiralty court and the customs officials, which manifested itself in several ways, including opposition to the officers' application for writs of assistance (general search warrants). Adams attended the first of two arguments on the question, held before the Superior Court at Boston in February 1761. Although he was not of counsel, he produced a report which was widely circulated and of some importance in later political struggles. Boston's resistance to the application, although unsuccessful, marked the first step in an opposition to the Acts which was to culminate in the American Revolution.11
At the conclusion of the war in 1763 England was both financially strained and sharply aware of the extent of colonial evasion of the Acts of Trade. The American Act of 1764 was directed at both problems. For the first time duties were levied on colonial imports for the express purpose of raising a revenue. To prevent violation of this and other Acts, various holes in the enforcement system were plugged with requirements for ad• { [facing 100] } { [facing 101] } { 101 } ditional bonds and certificates and a closer check by the customs officers. Heavy pecuniary penalties against offenders were set in addition to the previous system of forfeitures, and it was made clear that all violations of the Acts could be sued upon in colonial Admiralty courts. In these suits the prosecuting officers were given certain procedural advantages. Finally a new superior court of Admiralty was created to hear cases from any province.12
Before the effect of these new measures could be felt, Parliament passed the Stamp Act of 1765, a provision for further revenue to be levied by a tax upon a variety of documents and printed matter. Colonial objections to the American Act were submerged in a sudden rush to defy the Stamp Act. In Boston, violence and the threat of violence prevented the distribution of the stamps. One result was that the courts, which required stamped paper for their documents, were closed. Adams appeared before the Governor and Council in December 1765 for the Town of Boston to pray that the courts be opened without stamps. Although his arguments took account of the political nature of the body which he was addressing, his notes show that he backed up rhetoric with authority, relying upon the kind of argument that had earlier been made against writs of assistance. The petition was denied on the ground that the question was a judicial one, but the Inferior Court soon opened in acquiescence to popular pressures. The Superior Court was formally opened, but did only token business until news of the Stamp Act's repeal was received in May 1766.13
Along with repeal, most of the duties of 1764 were reduced to acceptable levels.14 The enforcement provisions were not repealed, however. Calm temporarily prevailed until a change of governments in England brought Charles Townshend, long a proponent of colonial taxation, to the post of Chancellor of the Exchequer. The Townshend Acts of 1767 again laid duties upon American imports, to be used in part to pay colonial officials independently of the legislatures. The Acts renewed the drive for strict enforcement by authorizing the appointment of an American Board of Customs Commissioners to sit at Boston and exercise the powers formerly { 102 } held by the English Commissioners.15 At the same time the superior court created in 1764 was superseded by four new district courts of Admiralty, to sit at Halifax, Boston, Philadelphia, and Charleston, and exercise both original and appellate jurisdiction over surrounding provinces.16
Adams does not seem to have tried a revenue case in the Court of Admiralty before 1768. In that year, however, the activities of the Commissioners inevitably drew him into such matters. Their immediate application of the new enforcement policy increased the number of actions in Admiralty to the point where there was need for additional lawyers. Further, the Commissioners' policy aroused an immediate opposition among the merchants who seemed determined to spare no effort in resistance. Accordingly, Adams' first such case, Folger v. The Cornelia, No. 45, which was a direct confrontation between the Commissioners and those who had found the previous administration more agreeable, marked the beginning of a busy year and a half in the Court of Admiralty.17
The seizure of John Hancock's sloop Liberty in June 1768 provided the focus for the attack upon the Commissioners. Adams was deeply involved in this affair, both as counsel for Hancock in an action brought against him for penalties, and as a draftsman of political manifestos for the Town of Boston.18 At the same time there was a steady stream of less important revenue litigation in which Adams participated, perhaps because he was in court on Hancock's business.19 Although Adams was politically committed to opposition to the Acts of Trade, he was of counsel for Crown officers in two cases in the spring and summer of 1769.20 As a lawyer, he had a right, if not a duty, to give his services to those who sought them. In view of the political situation, however, it is likely that he was under heavy pressure from the Crown to yield a more permanent allegiance. In his Autobiography, Adams wrote that sometime { 103 } during 1768 Jonathan Sewall had asked him to take over his position as advocate general in Admiralty. Adams reported that he had had no trouble in refusing this offer, since he wished to be under no obligation to those whose political principles he opposed. There is other evidence that some such episode took place. Perhaps Adams' legal activities for the Crown indicate that he gave Sewall's proposal more serious consideration than he was later willing to admit.21
The uproar over the Liberty led the Crown to send troops to Boston. The presence of soldiers and continued tension over the Commissioners' activities led at length to the Boston Massacre in March 1770 (Nos. 63, 64). In the aftermath of this episode the troops were withdrawn, and the Commissioners, who were accused of instigating both the Massacre and the earlier shooting of a small boy by their employee Ebenezer Richardson (No. 59), greatly moderated their tactics. The Boston merchants, feeling a revulsion against civil disobedience, in the fall abandoned the policy of nonimportation with which they had reacted to the Townshend Acts. Parliament had contributed to the atmosphere of conciliation in March by repealing all of the Townshend duties except the tax on tea.
So far as is known, Adams had no Admiralty cases for nearly three years after the summer of 1769. Although he may have withdrawn from practice in the court in disgust at the political ramifications, there are other possible explanations. In 1769 his business in the common-law courts drastically increased to the level where it was to remain until the Revolution. At the same time the atmosphere of conciliation following the Massacre had greatly reduced the number of customs cases and diminished the political tension which had surrounded such matters. A balance of interests in favor of the economics of the profession probably accounts for Adams' abandonment of the Admiralty.22
{ 104 }
Whatever the reason, he does not seem to have appeared there again until February 1772, when he was retained in the first appeal brought before the Boston District Court of Admiralty since its creation in 1768. Robert Auchmuty, previously judge for the Province, had been appointed to the new court, but he had apparently continued to sit in his former capacity also, thus rendering appeals of doubtful value in Massachusetts. The decision in this case had been given by Auchmuty's deputy in New Hampshire, however. In his diary Adams noted that “as it is a new Thing the Judge has directed an Argument, and a Search of Books concerning the Nature of Appeals by the civil Law. I found Time to look into Calvins Lexicon Title Appellatio and Provocatio, and into Maranta, who has treated largely of Appeals. Borrowed Ayliff, but there is no Table and could find nothing about the Subject. Domat I could not find.” The appeal and another from the condemnation of a vessel belonging to John Langdon of New Hampshire, were decided in favor of the Crown, presumably in spite of the efforts of Adams, who was probably on the side of the claimants.23
Adams did undertake at least two revenue cases in 1772 and 1773. Although the burning of the revenue cutter Gaspee in Rhode Island and the special tribunal appointed to investigate the incident had awakened political responses in him and in many others, his later cases had no particular political relevance, except as further evidence to the colonists of the oppressiveness of the system.24 The tax on tea, left unrepealed in 1770, finally led to the events which terminated whatever uneasy truce remained and took political dispute beyond the confines of the courtroom. In 1773 Parliament had saved the East India Company from collapse by an Act allowing it a full drawback of English duties on tea shipped to the colonies, and permitting it to ship directly to colonial consignees, instead of dealing through English tea merchants. With these advantages, the Company could now compete with the smugglers who had been evading the duty regularly since 1770. An increase in the sales of legally imported tea meant an increase in duties. More revenues meant more funds to be applied under the Townshend Acts to pay the salaries of royal officials. This threat aroused Boston, and other colonial ports, to action.25
{ 105 }
The first of the tea ships, the Dartmouth, arrived in Boston harbor on 28 November, and, apparently at the request of the Committee of Correspondence, came up to the town on the 30th, taking a berth at Griffin's Wharf the next day. There she was soon joined by other vessels. The ships had apparently entered at the Custom House soon after arrival, but none of the tea was unloaded. The “Body,” the ad hoc mass meeting which purported to speak for Boston, demanded that the ships be sent home with cargo still intact, but the owners were unable to comply. The customs officers refused to issue clearances until the tea had been unloaded, and Governor Hutchinson would not allow the province naval officer to give the vessels a pass to leave the port without a clearance.
In this state of things the owners of the Dartmouth sought counsel from Adams and Sampson Salter Blowers. The owners probably wanted both arguments to use before the customs officials and Hutchinson, and advice on the potential liability of the Dartmouth and her cargo for seizure. The account of the vessel's master shows that Adams and Blowers were paid a total of £7 4s. for “advice,” but no indication of its nature has survived.26 Under the applicable statutes duties were due upon “importation” and goods could be seized if duties remained unpaid twenty days after entry. The principal questions were probably whether there had been an “importation” within the Act when bulk had not been broken, and if there had, whether the customs officers could nevertheless clear out vessel and cargo without payment of duties.27 Before these questions could be raised in any legal proceeding, events made them moot. On 16 December Hutchinson refused a last request for a pass and an immortal band of Indians proceeded to dump the tea into Boston Harbor, in what Adams described in his diary as “the most magnificent Movement of all.”28
In reaction to this act of defiance, Parliament passed the Boston Port Act and other coercive measures designed to punish the Town and its supporters by terminating its trade and abridging provincial self-govern• { 106 } ment.29 Adams does not seem to have had further cases in the Vice Admiralty Court, but he was at least present to report a case in which the Port Act was put to the test there in the summer of 1774 (No. 53). In the meantime the colonies had begun to move toward union, revolution, and independence. The First Continental Congress sat at Philadelphia in September 1774, with Adams among its members.30 Before independence was formally declared, the British sought to bring the colonies to heel by Act of Parliament, extending the Port Act to other colonial ports. Finally Britain laid a total embargo on colonial commerce in a statute that was not an Act of Trade, but a measure regulating the taking and distribution of prizes. Adams' only contact with this later legislation was in the somewhat different context of prize litigation during the Revolution.31
1. These provisions were first enacted in the statutes, 12 Car. 2, c. 18, §§1, 18 (1660), and 15 Car. 2, c. 7, §6 (1663). For a summary of later statutory modifications, see Harper, Navigation Laws 388–390, 395–404. For provisions applicable to colonial manufacturing, see Knollenberg, Origin of the American Revolution 169–171.
2. See the Plantation Duties Act, 25 Car. 2, c. 7, §§2, 4 (1673); the Sugar Act, 6 Geo. 2, c. 13 (1733). For discussion of these Acts and the legislative purpose, see Barrow, Colonial Customs 26–32, 283–286.
3. Provision for a colonial customs service was first made in the Plantation Duties Act, 25 Car. 2, c. 7, §3 (1673). Its existence was confirmed and the officers' powers strengthened by 7 & 8 Will. 3, c. 22 (1696).
4. See 15 Car. 2, c. 7, §8 (1663); 13 & 14 Car. 2, c. 11, §§2, 3 (1662), made applicable in the colonies by 7 & 8 Will. 3, c. 22, §6 (1696). For cases involving the requirement of entry, see No. 46 and No. 48.
5. See 7 & 8 Will. 3, c. 22, §§17–21; No. 51; No. 45, note 334.
6. See 12 Car. 2, c. 18, §19 (1660); 7 & 8 Will. 3, c. 22, §13 (1696); Harper, Navigation Laws 161–165. For further discussion, see No. 45, note 334.
7. See 15 Car. 2, c. 7, §8 (1663); 13 & 14 Car. 2, c. 11, §§2, 3 (1662), made applicable in the colonies by 7 & 8 Will. 3, c. 22, §6 (1696); Instructions by the Commissioners for Managing and Causing to be levyed and collected His Majesty's Customs, Subsidies, and other Duties in England, to who is Established Collector of His Majesty's Customs at [] in America ([London], ca. 1733). For a case on European goods, see No. 52.
8. 13 & 14 Car. 2, c. 11, §§4–11, 15–20, 32–34 (1662), made applicable in the colonies by 7 & 8 Will. 3, c. 22, §6 (1696). See No. 44, No. 45, No. 50.
9. As to the establishment of the Vice Admiralty Courts, see Barrow, Colonial Customs 124–127, 145–150; Wroth, “The Massachusetts Vice Admiralty Court,” in George A. Billias, ed., Law and Authority in Colonial America (Barre, Mass., in press). As to doubts about the scope of the jurisdiction before 1764, see Knollenberg, Origin of the American Revolution 266–268. The various penalties and forfeitures, and the mechanics of suit run through all the statutes and are discussed in most of the cases that follow. See especially No. 46. A search of the records of the Massachusetts Superior Court and the Suffolk County Inferior Court files has revealed no actions at law under the Acts of Trade after 1764. An incomplete search for the earlier period has produced only a few revenue suits, and these were matters in which the power of the Admiralty Court was being tested by writ of prohibition. See, for example, Robinson v. Patriarch, SCJ Rec. 1725–1730, fol. 59 (Suffolk, 1726) (Dismissed on exceptions); Robinson v. Patriarch, SCJ Rec. 1725–1729, fols. 97–99 (Essex, 1726) (Quashed because summons said “Suffolk SS” instead of “Essex SS”); Lambert v. Bardin, SCJ Rec. 1730–1733, fol. 202 (Suffolk, 1732) (Verdict for forfeiture. Vessel ordered sold, with seamen's wages also to be paid). As to distrust of the jury, see No. 46, note 61.
10. For the view that the system of duties and regulation prior to 1764 was agreeable to the colonists and that only changes made in that year and after (notes 12, 15, below) caused opposition, see Harper, Navigation Laws 365–378; Dickerson, Navigation Acts 208. These and earlier studies of the problem are admirably summarized in Barrow, Colonial Customs 1–17, 512–524, where the conclusion is reached that the entire system from 1660 on was inimical to colonial interests, and that lax enforcement between 1725 and 1764 was the key to colonial acceptance. The debt of the editors to this work here and elsewhere should be evident.
11. See No. 44.
12. The American Act, 4 Geo. 3, c. 15 (1764). For a summary of its provisions, see Knollenberg, Origin of the American Revolution 150–152, 176–181; compare Barrow, Colonial Customs 376–390. See also No. 46, No. 47, No. 52. Earlier a wartime practice had been extended by a measure providing for the seizure at sea by naval vessels of offenders against the Acts of Trade. 3 Geo. 3, c. 22, §4 (1763). See No. 51, note 1. As to the new Admiralty court, see Ubbelohde, Vice-Admiralty Courts 44–54. The court was given power to hear appeals from the provincial Admiralty courts by the Stamp Act, 5 Geo. 3, c. 12, §58 (1765).
13. JA's notes of his argument, now in the Adams Papers, are printed in 2 JA, Works 159 note. See also JA's diary entry for 20 Dec. 1765, 1 JA, Diary and Autobiography266–267. Compare Quincy's account of the argument, Quincy, Reports 200–214. For further discussion, see No. 44, note 48; No. 46, note 68. See also Edmund S. and Helen M. Morgan, The Stamp Act Crisis 139–143 (Chapel Hill, 1953).
14. 6 Geo. 3, c. 52 (1766). The Act did tighten enforcement regulations in other respects, and did not affect the duties on wines. See Barrow, Colonial Customs 443–444; No. 46, note 17; No. 47, note 1.
15. 7 Geo. 3, c. 41 (1767); id., c. 46. As to the Commissioners, see No. 45. The Acts also tightened the entry requirements and clarified the status of the writ of assistance. 7 Geo. 3, c. 46, §§9, 10. See No. 44, note 29.
16. 8 Geo. 3, c. 22 (1767). See Ubbelohde, Vice-Admiralty Courts 130–133. See also No. 46, notes 41–43.
17. In 1767 there had been 15 actions on the docket of the Vice Admiralty Court, of which one can be definitely identified as a revenue case and 2 are suits under the White Pine Acts (p. 247–253 below). The rest are presumably ordinary civil maritime actions. In 1768, out of 33 actions, 12 entries were in rem actions under the Acts of Trade, and 12 were in personam actions, the latter the Hancock and Malcom prosecutions (see No. 46, note 26). In 1769, out of 55 actions, 21 were under the White Pine Acts (see No. 54), 18 were in rem actions under the Acts of Trade and 10 were in personam prosecutions, including those arising out of Dowse v. 33 Hogsheads of Molasses, No. 47. See Vice Adm. Min. Bk. To the extent that the figures here and in notes 22, 24, below, differ from those in Wroth, “Massachusetts Vice Admiralty Court,” 6 Am. Jour. Legal Hist. 367, the latter are erroneous.
18. See No. 46.
19. See Nos. 47, 48, 49.
20. See Nos. 50, 54. At the same time JA was of counsel for the accused in Rex v. Corbet, No. 56, a trial before a Special Court of Admiralty for the killing of a naval officer at sea, which had political implications.
21. For the passage in the Autobiography, see 3 JA, Diary and Autobiography287–289. Hutchinson's statement that JA was offered the position of justice of the peace is discussed in id. at 289 note. In his diary for 22 Sept. 1772, JA noted that in the service of his “Country” he had sacrificed “Time, Peace, Health, Money, and Preferment, both of which last have courted my Acceptance, and been inexorably refused, least I should be laid under a Temptation to forsake the Sentiments of the Friends of this Country.” 2 id. at 63. That Sewall was dissatisfied with his post as early as the summer of 1768 seems clear from the story of his dealings with Samuel Venner. In Nov. 1768 he learned that he had been appointed Judge of the new Admiralty court at Halifax, which would have given him valid ground to look for a successor. See No. 46, notes 20, 27, 41–43. He was actually in Halifax on business at the time of the trial in Butler v. The Union, No. 50. Samuel Fitch was finally appointed to the post in March 1770. See No. 51, note 2. For the later relations between JA and Sewall, see 2 JA, Diary and Autobiography67–68, and 1 Adams Family Correspondence135–137.
22. In 1770 there were 13 actions in the Vice Admiralty Court, of which 5 were for breaches of the Acts of Trade and 2 were under the White Pine Acts. In 1771 out of 17 actions, 15 were for breaches of the Acts of Trade. See Vice Adm. Min. Bk. For the end of nonimportation, see Miller, Origins of the American Revolution 309–311. The Townshend Acts repeal was 10 Geo. 3, c. 17 (1770). As to JA's 1769 practice, see vol. 3:335–337 below. He had moved to Braintree in April 1771 after his exhausting defense of the Massacre defendants (Nos. 63, 64). See 2 JA, Diary and Autobiography6–7. Health is usually given as the reason for his departure. See id. at 7 note; 3 id. at 296. Compare 2 id. at 65–66. There is also reason to think, however, that he had had his fill of politics. Id. at 63.
23. See 2 JA, Diary and Autobiography56. As to these cases, see Ubbelohde, Vice-Admiralty Courts 157. See Cutt v. Meservey, Vice Adm. Min. Bk., 23 Jan. 1772; Baker v. Meservey, id., 9 March 1772.
24. For Adams' cases, see Nos. 51, 52. As to the Gaspee, and the reaction to the incident, see No. 46, note 22; Miller, Origins of the American Revolution 325–329. For JA's reactions see 2 JA, Diary and Autobiography73, 75–76. Although the records of the Vice Admiralty court are incomplete, there is some evidence that the Commissioners increased their activities in 1772. The existing docket of the court, through March 1772, shows 16 actions, of which at least 10 were customs cases. Vice Adm. Min. Bk. See also, Receipts from Seizures of Ships, 1772–1773, MBAt:Price Papers, which contains receipts of 19 forfeitures and one composition between May 1772 and Sept. 1773. A check of the Boston newspapers reveals at least 10 seizures between Sept. 1773 and Feb. 1776.
25. The Tea Act was 13 Geo. 3, c. 44 (1773). See generally Benjamin W. Labaree, The Boston Tea Party 58–109 (N.Y., 1964). See also Dickerson, “Use Made of the Revenue from the Tax on Tea,” 31 NEQ 232 (1958).
26. See account of James Hall, in Francis S. Drake, ed., Tea Leaves 352 (Boston, 1884). See generally, Labaree, Boston Tea Party 118–137. For Hutchinson's account, see 3 Hutchinson, Massachusetts Bay, ed. Mayo, 307–312.
27. The basic provision was the Sugar Act, 6 Geo. 2, c. 13, §§2, 3 (1733), incorporated by the Townshend Act, 7 Geo. 3, c. 46, §4 (1767). The High Court of Admiralty had held that under the Act prohibiting European goods “importation” occurred upon arrival. See No. 52, note 5. The Privy Council, however, had held in another case that “importation” did not occur until bulk had been broken. Smith, Appeals to the Privy Council 496. The practice was thus presumably not fixed in the colonies and varied from port to port. That the officers did not consider that they had power in the ordinary course to clear out a vessel in such circumstances appears in an episode in 1774 at Salem, where tea was permitted to be sent on to Halifax only after bond for the duties had been given. Salem Custom Officers to Commissioners, 5 Dec. 1774, Salem Custom House Letter Book Outwards, 1772–1775, Office of the U.S. Collector of Customs, Boston, Mass. For a full discussion of this phase of the question, see Labaree, Boston Tea Party 126–127.
28. For JA's comment, see 2 JA, Diary and Autobiography85. See generally Labaree, Boston Tea Party 137–145.
29. The Port Act was 14 Geo. 3, c. 19. As to the rest of the legislation, see Miller, Origins of the American Revolution 355–376. See also Labaree, Boston Tea Party 178–203.
30. See 2 JA, Diary and Autobiography97–160. Compare No. 53, note 5.
31. As to these Acts and JA's concern with them, see No. 58, notes 14, 23173.

Docno: ADMS-05-02-02-0006-0002-0001

Editorial Note

In February 1761 John Adams was present at an event which his later descriptions have firmly implanted in the mythology of the American Revolution. The arguments of James Otis before the Superior Court on the granting of writs of assistance to royal customs officials are generally known as one of the earliest statements of colonial opposition to parliamentary regulation. The scene itself, so vividly described by Adams in a letter to William Tudor nearly sixty years later, is surely part of the common vision of this period: In the Council Chamber of what is now the Old State House in Boston “near the Fire were seated five Judges, with Lieutenant Governor Hutchinson at their head, as Chief Justice, all in their new fresh Robes of Scarlet English Cloth in their Broad Bands, and immense judicial Wiggs. In this Chamber were seated at a long Table all the Barristers of Boston and its neighbouring County of Middlesex in their Gowns, Bands, and Tye Wiggs. They were not seated on ivory Chairs, but their dress was more solemn and more pompous than that of the Roman Senate, when the Gauls broke in upon them.”
There also sat Samuel Quincy and John Adams. “John was the youngest. He should be painted looking like a short, thick, fat Archbishop of Canterbury, seated at the Table with a pen in his hand, lost in Admiration, now and then minuting those despicable Notes which you know that Jonathan Williams Austin your fellow student in my office, stole from my desk and { 107 } printed in the Massachusetts Spy, with two or three bombastic expressions interpolated by himself; and which your Pupil, Judge Minot has printed in his history.”
Jeremiah Gridley, for the Crown, and Oxenbridge Thacher, for the merchants of Boston, argued well and eloquently, but it was Otis, also for the merchants, whom Adams hailed so many years later. “Otis was a flame of Fire! With the promptitude of Clasical Allusions, a depth of Research, a rapid Summary of Historical Events and dates, a profusion of legal Authorities, a prophetic glare [i.e. glance?] of his eyes into futurity, and a rapid Torrent of impetuous Eloquence, he hurried away all before him; American Independance was then and there born. The seeds of Patriots and Heroes to defend the non sine Diis animosus infans, to defend the vigorous Youth, were then and there sown. Every man of an [immense] crowded Audience appeared to me to go away, as I did, ready to take up Arms against Writts of Assistants. Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independance was born. In fifteen years, i.e. in 1776, he grew up to manhood, declared himself free.”1
By this and other letters to his old student, Adams sought to recreate a great moment of his youth. In the course of his efforts he put into Otis' mouth the entire body of arguments against the power of Parliament developed over the whole of the next decade. The inaccuracies and exaggerations of these letters have been ably summarized elsewhere; further comment on them must await The Adams Papers edition of that portion of Adams' correspondence.2 Here we deal only with the legal situation as it can be recreated from Adams' original notes of the argument and other sources.
The arguments which Adams heard turned on the nature of the writ and the construction of three Acts of Parliament and a Province statute. The term “writ of assistance” had originally been applied to process in favor of a particular litigant in the Exchequer or in Chancery, enabling him to obtain the sheriff's help in collecting a debt or gaining possession of property to which he was entitled.3 The writs sought by the Crown officials { 108 } in Boston in 1761, however, were general standing warrants, good from the date of issue until six months after the death of the issuing sovereign, which permitted the holder to enter any house by day, with a constable or other officer, and there search for smuggled goods without special application to a court.4
The earliest relevant statute, an Act of Parliament passed in 1660, authorized the issuance “to any person or persons” of a warrant to enter any house to search for specific goods, upon oath made of their illegal entry before “the lord treasurer, or any of the barons of the Exchequer, or chief magistrate of the port or place where the offense shall be committed, or the place next adjoining thereto.”5 Both the language and the legislative history of this enactment make reasonably clear that its purpose was to authorize a special search warrant of limited extent, under control of a higher authority.6 The statute central to the controversy was the Act of 1662, which, in setting up a comprehensive scheme of customs administration for the British Isles, first used “writ of assistance” to describe a customs search warrant. The act provided that “any person or persons, authorized by writ of assistance under the seal of his majesty's court of exchequer,” might enter any premises in the day time, with a constable or other officer, using force if necessary, and there seize any contraband goods found.7 It has been argued on the basis of the language and legislative history of this and other contemporary acts, that the Act of 1662 was intended to incorporate no more than the special warrant embodied in the Act of 1660.8 The language of the two statutes is open { 109 } to the contrary construction, however, and, since the parliamentary debates contain no affirmative statement on the precise point in question, contrary inferences may also be drawn from the legislative history.9 The actual intent of Parliament in the Act of 1662 thus cannot be determined.
Whatever the legislative intent, a course of practice under the statute soon developed which was a surer guide to construction in the courts than ambiguous language and incomplete history.10 There are some indications { 110 } that in the years after 1662 searches were carried out under special warrant, probably as a result of an attempt to follow the former practice under the Act of 1660.11 Apparently, however, the view prevailed that the Act of 1662 had created a new process, limited neither by the earlier statute nor by practice under the ancient equitable writ. There is no reported decision on the point prior to the argument at Boston in 1761, but before 1685 a form of the writ granting unlimited powers of general search seems to have been in use in the Exchequer.12 Other evidence indicates that from some time in the first half of the 18th century, the writ was established as a general standing warrant issued by the Exchequer on the application of the Commissioners of Customs, to be held by the principal customs officers for use by them or their subordinates as the occasion demanded. Abuses of the instrument were probably avoided by virtue of the fact that ordinarily the principal officers required the same showing of information and probable cause that a justice would have required for the issue of a special search warrant.13 Furthermore, even with probable { 111 } cause, the officer who searched and found nothing was liable in damages for the trespass.14
The use of the writ in the colonies depended upon a third statute, the Act of 1696, by which colonial customs control was generally strengthened and reorganized, and colonial customs officials were given the powers of their English counterparts, whatever those might be.15 In Massachusetts, both before and after the passage of this act, the powers of search granted to customs officers by statute and inherent in their commissions were exercised, but there is little affirmative evidence that general warrants were issued in support of these powers.16 According to Thomas Hutchinson, however, Governor Shirley, in office from 1741 until 1757, issued what were apparently general warrants to the customs officers. When Hutchinson himself pointed out the illegality of this practice, the Governor directed “the officers to apply for warrants from the superior court; and from that time, writs issued, not exactly in the form, but of the nature of writs of assistance issued from the court of exchequer in England.”17
{ 112 }
This development brought a fourth act into play—a Province law of 1699 which conveyed to the Superior Court the powers of the Exchequer. In 1754 the court had expressly refused to exercise the equitable branch of this jurisdiction, but it seemed to find no objection to the issuance of a writ ancillary to the Exchequer's revenue powers.18 On the application of Charles Paxton a writ of assistance issued in August 1755, and the files of the court reflect that thereafter until 1760 general writs of assistance were granted to seven other officers.19
The death of George II in October 1760 touched off the controversy which led to the argument in 1761. Since the existing writs survived the sovereign's death by only six months, it was necessary for the customs officers to procure new ones.20 The absence of records obscures the procedure by which the case came up, but probably Paxton and several other { 113 } officers applied in the form followed in the prior reign. This time, however, there was opposition, apparently as part of a general attack then being mounted on the customs and the Admiralty under the guidance of Benjamin Barons, disaffected collector of the port, and James Otis.21 Thomas Greene and other Boston merchants petitioned to be heard on the question. Thomas Lechmere, Surveyor General of the Customs, then stepped into the case both for the Crown and his men, petitioning the court “to be heard on the same subject: And that Writs of Assistants may be granted to himself and his officers as usual.” The proceeding seems to have gone forward as a hearing on these petitions, rather than on the application of any single officer.22
{ 114 }
The argument actually began on 24 February 1761, and, according to later accounts, lasted for several days. Whether these recollections are accurate, and if they are, how many hours per day were spent in oratory, cannot now be determined.23 Adams' on-the-spot report indicates that Gridley spoke first for the Crown, but whether through enthrallment, inattention, or nonattendance, Adams took virtually no notes of this portion of the argument. Thacher and Otis then appeared and Gridley gave what was apparently a rebuttal. It is these last three arguments which Adams preserved, at least in part. How much else was said we can only speculate, perhaps more misled than guided by Adams' later recollections.
Gridley's position was clear-cut. Parliament, he argued, had empowered the Exchequer to issue “writs of assistance”; authority showed these to be general writs. Parliament had given colonial customs officers the powers of the English customs; and the Superior Court had the powers of the Exchequer; thus the writ could issue. If the practice seemed to infringe upon individual liberties, there were ample English and colonial precedents for such infringement in the name of the exigencies of collecting the revenue. Thacher cast doubt upon the existence of a proper precedent for the writ and contended that the powers given by the Act of Parliament were too broad to be exercised under a general warrant. The bulk of his argument as recorded by Adams was addressed to the power of the Superior Court to act as the Court of Exchequer. Not only had this jurisdiction been renounced in a prior case, but the Massachusetts court lacked many of the powers with which the Exchequer could control English customs officers.
Otis alone seems to have raised broader questions. After a bombastic introduction, which may be a subsequent contribution by Adams,24 he insisted that, while special writs might be allowed by necessity, a general writ violated the fundamental principle that a man should be secure in { 115 } his own house. He disparaged the source of Gridley's authority, then argued that if it were valid, the courts did not have to follow a precedent offensive to fundamental principles. In an often-cited passage he urged that an Act of Parliament which sought to make the courts act in violation of these principles was void. He then went on to show various flaws in the writ contended for and to argue that on a proper construction the statutes cited authorized only special warrants. He closed with a reiteration of Thacher's attack on the Exchequer powers of the Superior Court.
The only question about which the court seems to have been in doubt was that of the nature of the warrants actually used in England. Accordingly, judgment was suspended pending an inquiry by Hutchinson into the Exchequer practice. The reply was that general writs were granted freely upon the application of the Commissioners of Customs to the clerk of the Exchequer,25 but the whole matter was reargued at Boston in November 1761 at an adjournment of the August term. After the second hearing, the court decided unanimously in favor of the writ.26 No record or minute book entry has been found. The decision seems to have been not an order allowing the issuance of a writ to a specific officer, but a kind of declaratory ruling, in effect granting the prayer of Lechmere's petition, that the writ might thereafter issue upon due application in accordance with the English practice. Thus, the first writ granted after the argument was given to Paxton on 2 December 1761, upon the application of the Surveyor General in his behalf. Similar procedure was followed for each writ subsequently issued in Massachusetts.27
{ 116 }
The importance which Adams attached to this case has been disputed. It has been suggested that oral argument delivered before a relatively small audience could not of itself have had the inspirational effects attributed to it.28 Certainly the efforts of Otis and Thacher did not change the orthodox view of what the law was. Writs were allowed to issue, and the practice was continued thereafter. Moreover, when in 1767 Parliament came to revise the statutes to effect the issuance of writs of assistance in all the colonies, the problem with which it was concerned was not the constitutionality of a general warrant, nor the power of the courts to deal with an unconstitutional Act, nor even the nature of the practice in the Exchequer, but merely an assurance to the high courts of judicature in the colonies that they could exercise Exchequer powers.29
The role of Otis' argument in the larger political and constitutional developments that were to follow is less easily dismissed. It is true that questions of Exchequer practice and Superior Court powers are not the stuff of revolution. As to the validity of general warrants, it is probably also true, as modern historians contend, that continuing colonial opposition to writs of assistance was not a direct response to Otis' oratory at Boston in 1761. Presumably the renewed efforts of customs officers to obtain writs after 1767 produced the widespread resistance to general warrants which led ultimately to the prohibition against unreasonable searches and seizures in the Fourth Amendment to the United States Constitution.30 { 117 } Nevertheless, in this struggle Otis' ideas, published in the newspapers and circulated by the bar, continued to stimulate resistance.31
Otis' argument had its greatest significance in questions of legislative and judicial power. By 1761 the doctrine of absolute parliamentary sovereignty, which is today the foundation of the British constitution, had become generally accepted in England. As Blackstone said in 1765, “if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.”32 In the latter year the doctrine was applied to writs of assistance. Litigation arising out of the problems of John Wilkes and the North Briton had led to a series of rulings in which the English courts held that general warrants were invalid as an intrusion on rights guaranteed by the common law. There had been no statutory authority for the warrants in those cases, however, and in the leading formulation of the position, Lord Mansfield was careful to distinguish writs of assistance as authorized by act of Parliament.33
In the 1761 argument, the theory of parliamentary sovereignty was implicit in the Crown's position.34 Otis, however, urged that acts of Parlia• { 118 } ment “against the Constitution” and “against natural Equity” were void, and that “the executive courts must pass such Acts into disuse.” Adams' notes show that in support of this position Otis cited the well-known language of Coke's opinion in Bonham's Case: “When an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be Void.”35
Modern scholars have concluded that in context this passage states a familiar common law canon of construction, rather than a constitutional theory.36 Coke's view of the constitution was that a supreme Parliament (the “High Court”) and the courts of justice both participated in the process of declaring and applying the same body of unchangeable, preexisting law; a kind of sovereignty, the prerogative, resided in the Crown, subject to the limitations of that law. The issue to which constitutional arguments were directed was the clash between the powers of the Crown on the one hand and the powers of Parliament and the courts on the other.37 Since the power of the Crown was not in question in Bonham's Case, the issue there raised was procedural, not constitutional.
For Coke, Bonham's Case was thus a conflict between private interests regulated by a statute which had to be interpreted, rather than a direct challenge to the power of Parliament to make the statute.38 The standard by which the statute was to be measured was the basic reasonableness, the common sense, of the common law. This quality was not a “higher law” by which Parliament was to be kept in check, but a guide by which statutes, presumably intended by the makers to conform to the reason of the common law, were to be construed. If, in the process of construction, an act was adjudged “void,” the court was not acting as a separate branch of government with a power to control Parliament by declaring acts unconstitutional, but was only applying the law of Parliament, necessarily { 119 } general in effect, so as to do justice in the circumstances of a particular case.
Otis' argument in 1761, by contrast, was a constitutional one, addressed directly to the questions of the limits of legislative power and the power of the judiciary to enforce those limits. In the latter half of the 17th century, as Parliament increasingly acquired the sovereignty formerly attributed to the Crown, Bonham's Case, taken out of its private law context, had often been relied upon in political and constitutional argument to support the proposition that there was a higher law to which Parliament must bow.39 Other authorities cited by Otis indicate that he quoted Coke's words in this constitutional sense, rather than as a canon of construction. The contrast between construction and constitution is emphasized by the fact that Otis also argued in conventional fashion that the statute should be read narrowly to permit only the special search warrant known at common law. If, however, the court insisted on treating the act as “made in the very words of this petition,” that is, as embodying the language of the writ of assistance itself, then he argued that the act would be void not only under Bonham's Case, but by virtue of “natural equity” and “the Constitution.”40
These terms do not denote the “reason of the common law,” but instead refer to fundamental principles of equity and justice embodied in a British constitution that a century and a half of political development had made into a formal, if still invisible, instrument of government. They are thus “higher law” in something like the sense used by modern constitutional theorists. Otis drew these ideas from sources which demonstrate the breadth of his argument. His pamphlet, Rights of the British Colonies, published in 1764, invoked Locke's description of a government in which legislative sovereignty ultimately was a grant from the people and so could not be absolute. In a passage strongly reminiscent of his writs of assistance argument, Otis cited the Swiss publicist Emmerich de Vattel, as well as Bonham's Case and other common law precedents, for the proposition that Parliament could not make a statute against natural equity or the British constitution. In all probability he cited the same authorities and made the same appeal to higher law before the Superior Court in 1761.41
{ 120 }
Both the writs argument and Rights of the British Colonies also suggest that Otis saw the courts in a constitutional role not envisioned in Bonham's Case. The phrase, “the executive courts must pass such acts into disuse,” reported by Adams, contains a hint of a power that went beyond Coke's words. This hint is borne out by a passage in the pamphlet. Otis there argued the existence of two remedies when an act of Parliament clashed with equity and justice. Repeal might be sought, or, “If the reasons that can be given against an act plainly demonstrate that it is against natural equity, the executive courts will adjudge such act void. It may be questioned by some, though I make no doubt of it, whether they are not obliged by their oaths to adjudge such act void. If there is not a right of private judgment to be exercised, so far at least as to petition for a repeal, or to determine the expediency of risking a trial at law, the parliament might make itself arbitrary, which it is conceived it cannot by the constitution.”42 In voiding acts of Parliament, the courts were not merely interpreting statutes incident to the decision of private disputes. They were obligated by the nature of their office to pass judgment on legislation, and this function was itself a vital element of the constitution.
The power which Otis urged for the courts fell short of the later American doctrine of judicial review. His pamphlets show that he still saw Parliament as supreme, and so not bound to yield to a court's decision adverse to a statute. The point was that, although Parliament might err, it was benevolent and sought to act within the constitution; it would therefore accept the judicial determination, even though not compelled to.43 The courts thus did not occupy their modern position as a separate governmental branch of coordinate authority with the legislature, having express power to declare the law. Lacking this power, a court could not { 121 } totally annul an act, but could only decide the case before it. The modern court does no more in form, but its constitutional eminence gives its decisions an effective force beyond the confines of a particular case. Nevertheless, Otis' notion that the courts have some kind of constitutional function in controlling Parliament was surely one source of the modern concept of their power.44
In his argument, Otis was far from proclaiming revolution, and he did not singlehandedly create American constitutional law. He was, however, ahead of the revolutionary pamphleteers in confronting the orthodox idea of Parliamentary sovereignty with the notion that there might be a rule of law superior to Parliament;45 and he did suggest that it might be a function of the courts to enforce compliance with that rule. These ideas appeared in his later writings, but other problems, theoretical, political, and emotional, so obscured them, that Otis undoubtedly did not realize their full import, and certainly did little to argue them in a consistent and coherent manner.46 Nevertheless, he had put them into play. Other writers, more aware of political realities, carried his ideas to their logical extreme—the justification of the overthrow of parliamentary authority and the subsequent establishment of a new government in which the legislature was limited by an express fundamental law.47
The argument of 1761 did not of itself lead to these great ends, but if it marked for Otis a first opportunity to formulate and express ideas which were later to circulate throughout the colonies in his pamphlets, then it { 122 } cannot be said that his words stopped at the door of the Council Chamber. And if, when John Adams said sixty years later that “Then and there the child Independence was born,” he really meant that the suggestion that Parliament's power was not absolute started the intellectual process which was to lead him to the forefront of the revolutionary movement, then surely the argument of 1761 was a vital predecessor of those of 1776.48
The documentary history of the materials which follow is nearly as tortuous as their intellectual history. Document I is the booklet of “despicable notes” which Adams actually took down at the argument. They are hastily written and certainly do not touch all points covered in the course of a hearing of at least several hours' duration. Appended to them are Adams' extracts of the statutes involved and copies of the petition and writ issued to Paxton in 1755. These were apparently made by him for use in the more elaborate abstract of the argument which is reproduced as Document II.
It is this document which creates problems, since no copy of it in Adams' hand has been found. In his diary for 3 April 1761, he reported showing to Colonel Josiah Quincy “an Abstract of the Argument for and against Writts of Assistance.” Quincy cried, “did you take this from those Gentlemen as they delivered it? You can do any Thing! You can do as you please! Gridley did not use that Language. He never was Master of such a style! It is not in him—&c.”49 This description is ambiguous, the more so because it occurs in a passage in which Adams is dubious of the sincerity of the Colonel's flattery on this and other points. It seems, on balance, to refer not to the rough notes made in court but to a more careful treatment written out at a later date. Description of the piece as an “Abstract” seems to imply work of more finished quality than that of notes made on the spot; moreover, praise such as that given by Quincy would have seemed extravagant and suspect in the extreme if applied to the fragmentary jottings that are the notes.50
In his Autobiography, and in the passage from his letter to Tudor quoted at the beginning of this note, Adams spoke of his notes of the argument as having been printed in the Massachusetts Spy and in Minot's History of Massachusetts Bay.51 The material printed is not the rough notes, but a comparison of the texts shows that it was drawn from those notes. Other versions of the arguments, in virtually identical language, exist in { 123 } circumstances linking them to Adams. It therefore may be concluded that Adams composed a longer version of his notes and that it was this work which circulated among the bar and was preserved in the Spy and in Minot's History. On the basis of these conclusions, Document II is offered as the first collation of all known versions of Adams' “Abstract of the Argument.”52
In the “Abstract” Adams has made the remarks of Gridley the opening argument, although from their position in his notes they would seem to have been a rebuttal. This argument and that of Thacher, which follows it, are taken with almost literal exactness from the rough notes. It is in Otis' often reprinted argument that Adams seems to have exercised artistic license. No doubt Otis said all that is attributed to him and much more; but the “Abstract” seems to be a combination of Adams' notes and his impressions of the larger questions that is peculiarly his own. The bones of the legal arguments which appear in the notes are there, but in pruning legal complexities and in adding fervor, Adams created a minor work of political propaganda. Perhaps the inspiration that produced this epitome of a famous address is the best evidence we have of the birth of “the child Independence” in 1761.
Document III is Hutchinson's draft of the writ issued after the November argument.
1. JA to William Tudor, 29 March 1817. LbC, Adams Papers. Printed with some variations and omissions in 10 JA, Works 244–249. The letter had first appeared in 14 Niles' Weekly Register 137–140 (25 March 1818), and was printed again in Novanglus and Massachusettensis 244–247 (Boston, 1819). JA, in a contemporaneous report of the proceedings in Congress on the Declaration of Independence, referred to “the Argument concerning Writs of Assistance, in the Superiour Court, which I have hitherto considered as the Commencement of the Controversy, between Great Britain and America.” JA to AA, 3 July 1776, 2 Adams Family Correspondence 28.
2. As to the inaccuracies, see notes 20, 22, below; they are fully discussed in Horace Gray's appendix to Quincy's Reports [hereinafter to be cited as Quincy, Reports (Appendix)] at p. 408–411, 416–417, 469. See also Joseph R. Frese, Writs of Assistance in the American Colonies, 1660–1776, p. 1–19 (Harvard Univ. doctoral dissertation, 1951). The principal letters are in 10 JA, Works 244–362; see also id. at 362 note.
3. See Quincy, Reports (Appendix) 395–396. The examples cited by Thacher, note 456 below, are writs of this kind, in aid of Chancery decrees. The process is still known in England. See 16 Halsbury's Laws of England, tit. Execution, §100 (London, 3d edn., 1956). In the United States the equitable writ of assistance is found in a number of states and, under Federal Rule of Civil Procedure 70, is available after an order for the delivery of possession. See Note, 8 Arkansas Law Review 92–100 (1954); James W. Moore, Federal Practice, 7:2503 (Albany and N.Y., 2d edn., 1955).
4. See the examples, text at note 48100 below, and Doc. III.
5. 12 Car. 2, c. 19, §1 (1660). The warrant so issued enabled the holder
“with the assistance of a sheriff, justice of peace or constable, to enter into any house in the day-time where such goods are suspected to be concealed, and in case of resistance to break open such houses, and to seize and secure the same goods so concealed; and all officers and ministers of Justice are hereby required to be aiding and assisting thereunto.”
The Act limited entries under it to one month after the offense was supposed to have been committed and gave any party injured by a false information an action of trespass against the informer. Id. §§2, 4.
6. See Frese, “Early Parliamentary Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 318–326 (1959); Frese, Writs of Assistance (dissertation) 41–56.
7. 13 & 14 Car. 2, c. 11, §5(2) (1662), set out in text at note 4092 below as JA copied it. For confusion introduced by variant spellings of “assistance,” see note 4093 below. §4 of the Act provided for search of vessels at any time without a warrant.
8. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 327–352; Frese, Writs of Assistance (dissertation) 97–106. See also Quincy, Reports (Appendix) 530–532.
9. The language of 13 & 14 Car. 2, c. 11, §5(2) (1662), standing alone seems to envision a general warrant, if the term “writ of assistance” is not held to incorporate the ancient process. See note 12 below. The statute, 12 Car. 2, c. 19 (1660), was continued and confirmed long after 1662, however, leading to the conclusion that the Act of 1662 included only the special warrant of the 1660 Act. Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 335; compare Quincy, Reports (Appendix) 531–532. It could nevertheless be argued that the Act of 1660, which provided for the issuance of warrants by officers other than the Barons of the Exchequer (who had the sole power under the 1662 Act), was retained as an additional weapon in the battle against illicit trade. The other Acts chiefly relied upon to support the special warrant theory are 13 & 14 Car. 2, c. 3, §14 (1662), a provision of the Militia Act that general warrants might issue to search for illegal arms; and 13 & 14 Car. 2, c. 33, §§15, 19 (1662), which provided such warrants for searches for unlicensed printed matter. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 336–351. Father Frese points to the contrast between the battle required to pass even these measures, which were limited by numerous exclusions, and the ease with which the less limited writs of assistance provision was passed, as evidence that the latter embodied only special warrants. Id. at 351–352. This difference might also be accounted for by a difference in the nature of the evils sought to be remedied by the various acts. Insurrection and sedition are political crimes; measures designed to control them may affect the liberties of the entire populace. Smuggling is a crime with a financial motive; its suppression is more likely to be localized in effect, harming only those who habitually live close to or beyond a rule of law accepted by the majority. Other legislation of the same Parliament provided for search without special warrant. See 13 & 14 Car. 2, c. 7, §§7, 14 (Search of London leather workers' shops for prohibited leather); 13 & 14 Car. 2, c. 5, §8 (Search of Norfolk and Norwich shops and other locations for defective yarns); 13 & 14 Car. 2, c. 32, §9 (Search of WestRiding shops and other locations for illegally imported cloth). Father Frese argues that the matters involved in these acts are too minor and local to be analogous to the Customs Act; moreover, they do not authorize use of force. Frese, Writs of Assistance (dissertation) 99–104. Although the latter objection has some merit, it could be argued that a customs measure bears greater resemblance to this last class of statutes than to the Militia and Printing Acts, thus accounting for a uniform silence as to the general search powers. In any event, it is clear that the 1662 Parliament did not hesitate to convey such powers when the occasion required.
10. For the general proposition that long-continued usage can control the construction of a statute, see Sir Peter B. Maxwell, The Interpretation of Statutes 308–314 (London, 9th edn., Sir G. H. B. Jackson, 1946). The printed Journals of the House of Commons and House of Lords, upon which Father Frese's legislative history (notes 8–9 above) is chiefly based were published in about 1742, but there is no evidence that they were known in Massachusetts. See L. A. Abraham and S. C. Hawtrey, A Parliamentary Dictionary 104 (London, 1956). Even if the Journals had been available, it is possible that the Massachusetts court might have refused to consider them in construing the statute. The familiar English doctrine barring legislative history as an aid in this process was not clearly formulated until 1769, however, and legislative materials were so used by Lord Camden in Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep. 807 (C.P. 1765), a famous decision against general warrants, handed down in the course of the Wilkes controversy (text at note 33 below), cited in Plucknett, Concise History 335–336; see also Maxwell, Interpretation of Statutes 27–30.
11. Frese, Writs of Assistance (dissertation) 160–161 note.
12. See the form of a writ dating from between 1676 and 1685, published in William Brown, Compendium of the Several Branches of Practice in the Court of the Exchequer 358–361 (London, 1688). It is more fully discussed in notes 557, 1668, below. This form bears little or no resemblance to the ancient writs of assistance (note 3 above). It has been suggested that the source may have been either the sheriff's “Patent of Assistance” (a general command to others to aid this officer), or, by analogy, the general warrants authorized by 13 & 14 Car. 2, c. 33, §15 (note 9 above), which gave the bearers power, “with a constable, to take unto them such assistance as they shall think needful.” See Quincy, Reports (Appendix) 397–398, 530–531 note. “Writs of assistance” were known in the colonies before the Act of 1696 (note 15 below), but these were apparently special warrants. Frese, Writs of Assistance (dissertation) 127–177. In England, however, the evidence is ambiguous. The materials cited by Frese (note 11 above) indicate the use of special warrants, but there was a second edition of Brown's Compendium in 1699, containing the form of the general writ. Reissues of the first edition in 1689 and 1692 presumably were likewise unchanged. See 1 Sweet and Maxwell, Legal Bibliography 319. Since special warrants could still be obtained under 12 Car. 2, c. 19 (1660), note 5 above, it is possible that warrants of both kinds were used during this period.
13. See Hoon, English Customs 63, 272–273; Quincy, Reports (Appendix) 532 note; note 25 below. Writs of assistance were among those processes which would survive the death of the sovereign by six months under 1 Anne, stat. 1, c. 8, §5 (1702), cited in notes 2880, 3385, below. No English case has been found in which the validity of the writs was directly raised, but their existence as general warrants was recognized and seemingly approved in a series of cases after 1765. See text and note 33 below; Quincy, Reports (Appendix) 533–534 note. Gray suggests that the writ first came to the notice of the English judges through Hutchinson's application to the ministry in 1761. Ibid. See also cases cited, notes 759, 1062, below. The writ remained in use in England throughout the 19th century in substantially its earlier form. Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 357–360 (1936–1941). It is today authorized by the Customs and Excise Act of 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 44, §296, which permits entry with a writ by day or night on “reasonable grounds to suspect that anything liable to forfeiture under the customs or excise Acts” is concealed on the premises. The presence of a constable is required only when the entry is at night. The special search warrant is clearly distinguished, being covered in a separate paragraph. For an account of the practice in 1930, when writs were in the custody of principal customs officers for use when circumstances did not permit a special warrant, see Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 362; Ham's Year Book 1930 180 (London, 1930). In Canada the writ is still issued to officers charged with the enforcement of customs, excise, food and drug, and narcotics control acts. See Trasewick, “Search Warrants and Writs of Assistance,” 5 Crim. Law Quart. 341, 345–349, 356–363 (1962).
14. See note 1062 below.
15. 7 & 8 Will. 3, c. 22, §6(2), set out as JA copied it in text at note 4294 below. The legislative history of this provision, while inconclusive, offers no affirmative evidence that Parliament intended to establish warrants in the colonies. See Frese, “Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 352–359. There were, however, several measures in the same Parliament which provided general search powers in commercial situations like those in note 9 above. Frese, Writs of Assistance (dissertation) 117–125.
16. See Frese, Writs of Assistance (dissertation) 127–179. It was later argued that the power to search was actually conveyed by 13 & 14 Car. 2, c. 11, §5(2) (1662), note 7 above, and that the writs were merely for identification purposes. Opinion of Attorney General DeGrey, 20 Aug. 1768, Quincy, Reports (Appendix) 454; compare Frese, Writs of Assistance (dissertation) 171 note. This theory is borne out by the fact that the form of the writ used after 1676 contained authority for searches aboard ship as well as ashore, although the 1662 Act did not require a writ for cases of the former class. See the writ at note 48100 below; compare Doc. III. For a copy of a commission, see Commission of Benjamin Hallowell as Comptroller of Boston, 9 March 1764, Quincy, Reports (Appendix) 433 note. One 18th-century colonial law book contains only a special search warrant for customs officers. Frese, Writs of Assistance (dissertation) 179 note; see Conductor Generalis: or the Office, Duty and Authority of Justices of the Peace 91–92 (Phila., 2d edn., 1749). The latter work, intended for justices of the peace, would not contain the form of the writ of assistance, which could issue only from the Exchequer or an equivalent.
17. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 67. That the writs were general appears from Hutchinson's description of the event. This conclusion is supported by a phrase in Otis' argument at note 1567 below, as well as by Hutchinson's remarks in the second writs of assistance argument in Nov. 1761. Quincy, Reports 52. Shirley was probably acting under the authority given to the governor, or one delegated by him, to seize illegally entered goods under 6 Geo. 2, c. 13, §3 (1733). He may also have relied, as “chief magistrate,” on the provisions of 12 Car. 2, c. 19, §1 (1660), which permitted search of any premises for specific goods. See text at note 5 above.
18. The Province law was the Act of 26 June 1699, c. 3, § 1, 1 A&R 370, set out in note 4698 below. For the 1754 refusal to act, see note 961 below. The Superior Court could be said to have had a jurisdiction equivalent to that of the Exchequer over breaches of the Acts of Trade in England, because the acts applicable to the colonies gave concurrent jurisdiction of breaches there to the Courts of Vice Admiralty and the common-law courts. The Superior Court also had jurisdiction of breaches of provincial revenue acts. See 15 Car. 2, c. 7, §§6, 8 (1663); Act of 31 Jan. 1761, c. 20, §§14, 15, 20, 4 A&R 407. No evidence of a significant exercise of the jurisdiction under the English statutes has been found in the records or files of the Superior Court, however, and there seem to have been few actions under the Province acts. See p. 99, note 9, above; note 3082 below. For Parliament's later efforts to meet the problem of a general colonial lack of Exchequer jurisdiction, see note 29 below.
19. See Paxton's petition and writ in text at notes 4799, 48100, below. For the record references to the allowance of his and the other petitions, see Quincy, Reports (Appendix) 402–406. See also the petition of Francis Waldo, April 1758, SF 78370, and that of James Nevin, Jan. 1759, SF 79409.
20. By virtue of 1 Anne, stat. 1, c. 8, §5 (1702), note 13 above. Hutchinson stated that the argument which followed had been called for in part because Samuel Sewall, “the late chief justice, who was in high esteem, had doubts of the legality of such writs.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68. JA later concurred as to Sewall's doubts and further stated that the February argument was before that Justice. JA to Tudor, 29 March 1817, 10 JA, Works 247. There is some question whether Sewall in fact had doubts. See Malcolm Freiberg, Prelude to Purgatory: Thomas Hutchinson in Provincial Massachusetts Politics, 1760–1770, p. 13 note (Brown Univ. doctoral dissertation, 1950). Whatever his views, he had died in Sept. 1760, so that he could not have heard the Feb. 1761 argument. See Whitmore, Mass. Civil List 70; Quincy, Reports (Appendix) 409. Since Hutchinson was commissioned as chief justice on 13 Nov. 1760 and took his seat on the bench on 30 Dec., only three days after George II's death was known in Boston, it would seem that JA was also in error in stating that Hutchinson was appointed expressly to decide the writs question in the Crown's favor. See Quincy, Reports (Appendix) 408–411 note.
21. Barons, appointed in 1759, had immediately begun to cause trouble, apparently because of a long-standing vendetta with Charles Paxton, surveyor and searcher at Boston. Barrow, Colonial Customs 261–262, 352–353. According to Paxton, Barons was behind not only the opposition to writs of assistance but also the efforts of the merchants to alter the practice whereby the charges of the informer in condemnations in the Court of Admiralty were paid out of the Province share of the proceeds. Quincy, Reports (Appendix) 425–426, 542. In the latter controversy James Otis represented the merchants at legislative hearings in Dec. 1760, which led the General Court to authorize Province Treasurer Harrison Gray to sue Paxton for specific sums he allegedly received in this fashion. Id. at 541–543. See note 28130 below. Gray, with Otis as counsel, first lost on a plea in abatement upheld because he had sued in his own person. See id. at 541–547; 1 JA, Diary and Autobiography210–212; SF 172289, 172353. In a new action in the name of the Province, Paxton obtained verdict and judgment at the Feb. 1762 term of the Superior Court. Quincy, Reports (Appendix) 548–552; SF 100183. At the Aug. 1761 Superior Court, John Erving, a Boston merchant and councilor, had obtained judgment against Collector George Cradock for money paid under a composition (consent decree) of a libel brought in Admiralty for duties—despite the court's instructions that the Admiralty decree was binding. Id. at 553–557. In the meantime, Barons had finally been removed from his post, in June 1761. See No. 45, note 644. Since he had brought three actions against those responsible for his removal which, with Gray v. Paxton and Erving v. Cradock, were all pending in the Suffolk Inferior Court in July 1761, it is little wonder that Governor Bernard saw the entire problem as the result of a plot fomented by Barons, Erving, and Otis. Bernard to Lords of Trade, 6 Aug. 1761, quoted in Quincy, Reports (Appendix) 426, 545, 555. It is more likely, however, that the opposition derived strong support from all the merchants because of their resentment toward a tightening of customs control insisted on by Pitt in Aug. 1760 as a means of halting illicit trade with the enemy. See id. at 407–408; Lawrence H. Gipson, The British Empire before the American Revolution, 10:111–131 (N.Y., 1961); King, “Judicial Flotsam in Massachusetts Bay,” 27 NEQ 366, 371–374 (1954); Freiberg, Prelude to Purgatory 9 note. Otis was allegedly involved against the Crown because of wrath at the appointment of Hutchinson to the Superior Court in lieu of Otis' father. See 11 Sibley-Shipton, Harvard Graduates 252; note 20 above; note 26128 below.
22. JA's “Abstract,” at note 3105 below, reports that the case came up on the petition of James Cockle, Collector at Salem, at the Nov. 1760 term of the Essex Superior Court, an assertion which JA repeated in later writings. See, for example, JA to Tudor, 29 March 1817, 10 JA, Works 246–247. Cockle's petition has not been found, and there is no indication in the appropriate Minute Book that he, or any other officer, had applied for a writ in Nov. 1760. Quincy, Reports (Appendix) 409. Moreover, since the news of George II's death was not received in Boston until 27 Dec. 1760 (Id. at 411), the application certainly was made at a later date. That Paxton was first to apply is indicated by the facts that his was the first writ granted, and that Quincy's account is entitled “Paxton's Case.” See note 27 below. Hutchinson also says that an officer applied first. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68. There are no Minute Books for the 1761 terms of the Suffolk Superior Court, but the files and records support the conclusion that the petitions of Greene et al. and Lechmere were filed at the Feb. term 1761, and that the final decision reached at the Nov. adjournment of the Aug. term was on these petitions. See Petition of Greene et al., Petition of Lechmere, SF 100515b, printed in Quincy, Reports (Appendix) 412–414. See entries, “Greene et al. Petn.,” and “Lechmere, Survr. Genl. his petition,” on otherwise blank leaves, SCJ Rec. 1760–1761, fols. 225–226; and see, generally, Quincy, Reports (Appendix) 412–418.
23. Francis Bernard in 1765 said that the argument lasted three days, but it is unclear whether he referred to the Feb. or Nov. argument. Quincy, Reports (Appendix) 416. JA, in his Autobiography, characterized the argument as “several days” and in a letter in 1818 said that Otis' speech against the Acts of Trade alone lasted four or five hours. 3 JA, Diary and Autobiography276; JA to William Tudor, 1 June 1818, 2 JA, Works 314. The argument has been dated by virtue of the fact that it was held on the second Tuesday of the term. See note 2104 below. The term began on the third Tuesday of the month, 17 Feb. 1761.
24. This portion of Otis' remarks does not appear in JA's actual minutes (Doc. I), but is part of his later “Abstract” (Doc. II).
25. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68; Quincy, Reports (Appendix) 414–416; Freiberg, Prelude to Purgatory 15 note. The inquiry was apparently directed by Hutchinson to William Bollan, former Massachusetts agent in London. According to Bollan's memorial of 1766, seeking preferment from the Duke of Newcastle, Hutchinson desired “to know whether such writs of assistance ever issue from the exchequer, except upon special information, and confined either to particular houses, or to particular goods of which information is made.” Bollan replied by sending him a copy of the writ from the Exchequer, which was similar to that used in Massachusetts in 1755, reproduced in text at note 48100 below. Bollan also noted that “These writs upon any application of the commissioners of the customs to the proper officer of the court of Exchequer are made out of course by him, without any affidavit or order of the court.” Wolkins, “Bollan on Writs of Assistance,” 59 MHS, Procs. 415, 420 (1925–1926). See, as to the English practice, note 13 above.
26. See Quincy, Reports 51–57; compare Boston Gazette, 23 Nov. 1761, reprinted in Quincy, Reports (Appendix) 486–487. A summary of the arguments, apparently by Otis, appeared in the Boston Gazette for 4 Jan. 1762. It is reprinted in Quincy, Reports (Appendix) 488–494.
27. See the applications (1762–1769) in SF 1005150, printed in Quincy, Reports (Appendix) 416–434. Quincy styled the second argument “Paxton's Case of the Writs of Assistance,” but the evidence of the court records suggests that he, like JA in the first argument, simplified the nature of the proceedings. See Quincy, Reports 51; note 22 above. Hutchinson's draft of the writ which issued is printed as Doc. III. For the reaction and subsequent history of the writ in Massachusetts, see Quincy, Reports (Appendix) 416–468, 495–499; Wolkins, “Malcom and Writs of Assistance,” 58 MHS, Procs. 5 (1924–1925); Frese, “James Otis and Writs of Assistance,” 30 NEQ 496, 499–508 (1957); Frese, Writs of Assistance (dissertation) 202–235, 251–257, 273; Freiberg, Prelude to Purgatory 19–22. See also note 30 below.
28. See Dickerson, “Writs of Assistance as a Cause of Revolution,” in R.B. Morris, ed., The Era of the American Revolution 40 (N.Y., 1939). Compare Frese, Writs of Assistance (dissertation) 21–26; Frese, “Otis and Writs of Assistance,” 30 NEQ 496 (1957).
29. The Townshend Act, 7 Geo. 3, c. 46, §10 (1767), provided that, doubts having arisen about the legality of the use of writs of assistance in the colonies through the failure of the Act of 7 & 8 Will. 3, c. 22, to authorize any particular court to issue them, “such writs of assistance . . . shall and may be granted by the said superior or supreme court of justice having jurisdiction within such colony or plantation respectively.” The doubts had been expressed in a series of opinions of the Attorney General in England, which did not squarely face the question presented by the Exchequer jurisdiction of the Massachusetts superior court. See Wolkins, “Malcom and Writs of Assistance,” 58 MHS, Procs. 5 (1924–1925); Frese, “Otis and Writs of Assistance,” 30 NEQ 496, 503–505. Compare Opinion of Attorney General DeGrey, 20 Aug. 1768, Quincy, Reports (Appendix) 452–454.
30. The passage of 7 Geo. 3, c. 46, note 29 above, and the creation of a new board of American Customs Commissioners to enforce it (No. 45, notes 10–14), marked the beginning of a concerted effort by the customs officials in all colonies to obtain and enforce writs of assistance. For the difficulties which they encountered, even with the new enactments, see Dickerson, “Writs of Assistance,” Era of the Revolution 49–75; Frese, Writs of Assistance (dissertation) 225–293. For earlier problems in Massachusetts, see sources and authorities cited in note 27 above. The 14th Article of the Declaration of Rights in the Massachusetts Constitution of 1780, substantially drafted by JA, is an early and explicit demonstration of the reaction:
“Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases and with the formalities prescribed by the laws.” 4 JA, Works 226–227.
As to JA's role in the framing, see id. at 215–217; 2 JA, Diary and Autobiography401 note. The Fourth Amendment to the United States Constitution is of similar purport:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The first United States Customs Act provided that officers might search vessels upon reasonable suspicion at any time without warrant, but that premises ashore could be searched only with a warrant obtained on representation of suspicion to a Justice of the Peace. Act of 31 July 1789, c. 5, §24, 1 Stat. 43.
31. For newspaper publication in Boston after the Nov. 1761 argument and reaction there, see notes 26, 27, above. In many other colonies arguments similar to those of Otis were used; in 1773 JA's version of his argument as printed in the Massachusetts Spy (Doc. II and notes 1103, 20122, below) was sent to the Connecticut Committee of Correspondence. Frese, “Otis and Writs of Assistance,” 30 NEQ 506–508.
32. 1 Blackstone, Commentaries *91. As to the 18th-century position generally, see J. W. Gough, Fundamental Law in English Constitutional History 174–191 (Oxford, rev. edn., 1961); Plucknett, “Bonham's Case and Judicial Review,” 40 Harv. L. Rev. 58–60 (1926). Even Lord Camden, a friend to America, took the same position in 1768. Quincy, Reports (Appendix) 516–517. For the modern British view, see Edward McWhinney, Judicial Review in the English-Speaking World 31–48 (Toronto, 2d edn., 1960).
33. Money v. Leach, 3 Burr. 1742, 1766, 97 Eng. Rep. 1075, 1088 (K.B. 1765). See generally, 10 Holdsworth, History of English Law 659–672. The existence of the writ in England today (note 13 above) emphasizes the continuing force of the constitutional doctrine.
34. See Gridley's arguments, text following note 3183 below; compare his position in Nov. 1761. Quincy, Reports 56–57. Hutchinson expressly adopted this position at a later date. See his charge to the Grand Jury, March 1769, quoted in note 2072 below; Hutchinson to Richard Jackson, 12 Sept. 1765, 26 Mass. Arch. 153, quoted in Quincy, Reports (Appendix) 441 note.
35. Bonham's Case, 8 Co. Rep. 113b, 118a, 77 Eng. Rep. 646, 652 (C.P. 1610), quoted more fully, note 2173 below. For Otis' citation of the case and the other phrases quoted here, see text at notes 19-2171-73 below.
36. See Thorne, “Dr. Bonham's Case,” 54 L.Q. Rev. 543 (1938); MacKay, “Coke Parliamentary Sovereignty or the Supremacy of Law,” 22 Mich. L. Rev. 222–231 (1924); Gough, Fundamental Law 10–11, 31–40. It has also been argued that Coke intended to state a broader proposition of fundamental law. See Plucknett, “Bonham's Case,” 40 Harv. L. Rev. 31–48; Corwin, “The 'Higher Law' Background of American Constitutional Law,” 42 Harv. L. Rev. 373 (1929).
37. See Gough, Fundamental Law 40–65.
38. In a sense, Bonham's Case involved the public interest, since it concerned the statutory powers of the London College of Physicians to license practitioners. However, the form of the proceeding was an action of trespass for false imprisonment brought by Dr. Bonham against the members of the Board of Censors of the College, who had imprisoned him for contempt of their orders; such actions were considered as ordinary civil actions, the concept of review of administrative action by certiorari not having been developed. See Jaffe and Henderson, “Judicial Review and the Rule of Law: Historical Origins,” 72 L.Q. Rev. 350–352 (1956); compare Gough, Fundamental Law 49. See also No. 24, note 4; No. 27, notes 4–9.
39. See Gough, Fundamental Law 104–105, 111; Plucknett, “Bonham's Case,” 40 Harv. L. Rev. 61–63.
40. See text at notes 19–2171–73 below. Compare Adams' “Abstract,” text at note 46148 below.
41. See James Otis, The Rights of the British Colonies Asserted and Proved 72–73 (Boston, 1764), reprinted with the original pagination in Bernard Bailyn, Pamphlets of the American Revolution, 1:419–482 (Cambridge, Mass., 1965):
“Tis hoped it will not be considered as a new doctrine that even the authority of the Parliament of Great Britain is circumscribed by certain bounds which if exceeded their acts become those of mere power without right, and consequently void. The judges of England have declared in favor of these sentiments when they expressly declare that acts of Parliament against natural equity are void. That acts against the fundamental principles of the British constitution are void. This doctrine is agreeable to the law of nature and nations, and to the divine dictates of natural and revealed religion.”
(See also id. at 1870.) In a footnote at the dagger Otis quoted a long passage on legislative power from Emmerich de Vattel, Law of Nations, bk. 1, c. 3, §34 (London, 1760), to the effect that the legislature could not change “the constitution of the state.” The footnote also cited Bonham's Case; Day v. Savadge, Hobart 85, 80 Eng. Rep. 235 (C.P. 1615) (possibly cited in argument; see note 1971 below); Thornby v. Fleetwood, 10 Mod. 113, 88 Eng. Rep. 651 (C.P. 1713); and City of London v. Wood, 12 Mod. 669, 88 Eng. Rep. 1592 (K.B. 1701). The last three were all cases which repeated the Bonham principle. For Otis' reliance on Locke, see, for example, Rights of the British Colonies 22–23; see also Corwin, “Higher Law,” 42 Harv. L. Rev. 399. JA, years later, asserted that Rights of the British Colonies did contain the authorities cited in the writs argument. JA to Tudor, 21 Aug. 1818, 10 JA, Works 351.
42. Otis, Rights of the British Colonies 41. For a passage in JA's “Abstract” which may also convey this idea, see text at note 47149. In a newspaper statement of the arguments, attributed to Otis, Bonham's Case was not cited, and it was merely argued that the English construction of the Act should not be followed in Massachusetts. Boston Gazette, 4 Jan. 1762, printed in Quincy, Reports (Appendix) 491–492.
43. See Otis, Rights of the British Colonies 60, citing Jeremiah Dummer, A Defence of the New England Charters 41 (Boston, 1745). See generally 1 Bailyn, Pamphlets 415–417. Otis' concept of a supreme Parliament complying with law of its own volition is related to Coke's ideas. Id. at 412–413; Gough, Fundamental Law 40–50. For Otis, however, it was the necessity for maintaining the constitution, rather than undefined moral obligation, which enjoined compliance.
44. See Charles G. Haines, The American Doctrine of Judicial Supremacy 22–25 (Berkeley, 1932); Henry Rottschaefer, Handbook of American Constitutional Law 32–36 (St. Paul, Minn., 1939); Andrew C. McLaughlin, A Constitutional History of the United States 26–27 (N.Y., 1935); Corwin, “Higher Law,” 42 Harv. L. Rev. 375, 379, 408–409. Corwin seems to read too much into Adams' report of Otis' words when he says, “Then and there American constitutional law was born, for Otis' contention goes far beyond Coke's: an ordinary court may traverse the specifically enacted will of Parliament, and its condemnation is final.” Id. at 398. The history of judicial review in the colonies suggests many roots, including the activities of the colonial courts and the judicial functions of the Privy Council. See Haines, Judicial Supremacy 44–66; Smith, Appeals to the Privy Council 522–653. For references to the idea in Massachusetts, see Quincy, Reports (Appendix) 527–528 note; note 42 above; note 48 below. JA spoke of “telling the jury the nullity of acts of Parliament,” but this was after the British had left Boston. JA to William Cushing, 9 June 1776, 9 JA, Works 390–391.
45. 1 Bailyn, Pamphlets 121; Charles F. Mullet, Fundamental Law and the American Revolution 80–81 (N.Y., 1933).
46. Otis' writings contained much ambiguity, which gave rise to the correspondingly ambiguous reactions among his contemporaries. See 1 Bailyn, Pamphlets 121–123, 409–417. In Rights of the British Colonies 22–23, he quoted, apparently with approval, Locke's theory that revolution was justified when the sovereign arbitrarily assumed absolute power. He expressly rejected revolution as a solution to the existing problems of the colonies, however. Id. at 50–51. Later he retreated even further. 1 Bailyn, Pamphlets 122, 546–552.
47. See Corwin, “Higher Law,” 42 Harv. L. Rev. 394–409. The power of the courts to enforce the supremacy of the United States Constitution was not express, but was established by Chief Justice Marshall in Marbury v. Madison, 1 Cranch (5 U.S.) 137, 173–180 (1803). See also 1 Bailyn, Pamphlets 102–105.
48. See JA's comment of 3 July 1776 in note 1 above. For an example of his use of the fundamental law principle, see his argument before the Governor and Council on the closing of the courts during the Stamp Act crisis. Quincy, Reports 200–202. JA's own notes for this argument suggest that he was citing Bonham's Case in a narrow sense. 2 JA, Works 159 note. In another well-known case where the validity of an act denying jury trial was in question, JA argued for strict construction only. No. 46, text at notes 65–66.
50. See 1 JA, Diary and Autobiography 211 note; 10 Gipson, British Empire 122–123 note.
51. For the letter, see text at note 1 above. The passage in the Autobiography is in 3 JA, Diary and Autobiography276.
52. Details of the provenance of the materials printed are in note 1103 below. For one example of the “Abstract's” circulation, see note 31 above. Further evidence is provided by the existence of the Hawley and Keith versions, note 1103 below. It is worth noting that the brief accounts of the argument in 3 Hutchinson, Massachusetts Bay, ed. Mayo, 68, and 1 Gordon, History of Independence 141–142, suggest that their authors may have at least read the “Abstract,” probably in the Massachusetts Spy.

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

Author: Adams, John
Date: 1761-02-24

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, 24 February 1761

Writs of Assistance
Gridley. The Constables distraining for Rates.2 More inconsistent with English Rights and Liberties than Writts of assistance. And Necessity authorizes both.
Thatcher. I have searched, in all the ancient Repertories of Prece• { 124 } dents, in Fitzherberts Natura Brevium,3 and in the Register (Q. what the Register is) and have found no such Writt of assistance as this Petition prays. I have found two Writts of assistance in the Register but they are very different from the Writt pray'd for.4
In a Book, intituled the Modern Practice of the Court of Exchequer5 there is indeed one such Writt, and but one.
By the Act of Parliament any other private Person may as well as a Custom House Officer take an officer, a sherriff, or Constable &c. and go into any shop, store &c. and seize: any Person authorized by such a Writt, under the seal of the Court of Exchequer, may. Not Custom House officers only.6 Strange.7
Only a temporary Thing.
The most material Question is, whether the Practice of the Exchequer, will warrant this Court in granting the same.
The Act impowers all the officers of the Revenue to enter and seize in the Plantations, as well as in England. 7. & 8. Wm. 3, c. 22, §6. gives the same as 13. & 14. of C[harles]8 gives in England. The Ground of Mr. Gridleys argument is this, that this Court has the { 125 } Power of the Court of Exchequer. But This Court has renounced the Chancery Jurisdiction, which the Exchequer has in Cases where either Party is the Kings Debtor. Q. into that Case.9
In England all Informations of uncust[om]ed or prohibited Importations, are in the Exchequer. So that the Custom House officers are the officers of that Court. Under the Eye and Direction of the Barons.
The Writ of Assistance is not returnable. If such seisure were brot before your Honours, youd often find a wanton Exercise of their Power.
At home, the officers seise at their Peril even with Probable Cause.10
Otis. This Writ is against the fundamental Principles of Law. The Priviledge of House. A Man, who is quiet, is as secure in his House, as a Prince in his Castle, not with standing all his Debts, and civil Prossesses of any kind.—But
For flagrant Crimes, and in Cases of great public Necessity, the { 126 } Priviledge may be [encroached?]11 on. For Felonies an officer may break upon Prossess, and oath—i.e. by a Special Warrant to search such an House, sworn to be suspected, and good Grounds of suspicion appearing.
Make oath coram Ld. Treasurer, or Exchequer, in England or a Magistrate here, and get a special Warrant, for the public good, to infringe the Priviledge of House.12
General Warrant to search for Felonies, Hawk. Pleas Crown.13 Every petty officer from the highest to the lowest. And if some of em are <comm[issioned], others> uncom[missioned] others are uncomm[issioned].14 Gov[ernor and?] Justices used to issue such perpetual Edicts.15 (Q. with what particular Reference?)
But one Precedent, and that in the Reign of C. 2, when Star { 127 } Chamber Powers, and all Powers but lawful and useful Powers were pushd to Extremity.16
The Authority of this Modern Practice of the Court of Exchequer. It has an Imprimatur. But what may not have? It may be owing to some ignorant Clerk of the Exchequer.17
But all Precedents and this among the Rest are under the Control of the Principles of Law. Ld. Talbot. Better to observe the known Principles of Law than any one Precedent, tho in the House of Lords.18
As to Acts of Parliament. An Act against the Constitution is void: an Act against natural Equity is void: and if an Act of Parliament should be made, in the very Words of this Petition, it would be void.19 { 128 } The executive Courts must pass such Acts into disuse.20 8. Rep. 118. from Viner. Reason of the Common Law to control an Act of Parliament.21 Iron Manufacture. Noble Lord's Proposal, that we should send our Horses to England to be shod.22
If an officer will justify under a Writ he must return it. 12th. Mod. 396.23 Perpetual Writ.
{ 129 }
Stat. C. 2.24 We have all as good Right to inform as Custom House officers. And any Man may have a general, irreturnable <Writ> Commission to break Houses.
By 12. of C. on oath before Ld. Treasurer, Barons of Exchequer, or Chief Magistrate to break with an officer.25 14th. C. to issue a Warrant requiring sherriff &c. to assist the officers to search for Goods not enterd, or prohibited.26 7 & 8th. W. & M. gives officers in Plantation same Powers with officers in England.27
Continuance of Writts and Prossesses proves no more, nor so much as I grant a special Writ of assistance on special oath, for special Purpose.28
Pew indorsd Warrant to Ware. Justice Walley searchd House.29 Law Prov. Bill in Chancery. This Court confind their Chancery Power to Revenue, &c.30
Gridley. By the 7. & 8. of Wm. c. 22. §. 6th.31 This authority, of breaking and Entring ships, Warehouses Cellars &c. given to the Customs House officers in England by the statutes of the 12th. and 14th. of Charl. 2d.32 is extended to the Custom House officers in the Plantations: and by the statute of the 6th. of Anne,33 Writts of assistance { 130 } are continued, in Company with all other legal Proscesses for 6 months after the Demise of the Crown.—Now What this Writ of assistance is, we can know only by Books of Precedents. And We have producd, in a Book intituld the modern Practice of the Court of Exchequer,34 a form of such a Writ of assistance to the officers of the Customs. The Book has the Imprimatur of Wright, C.J. of the King's Bench which is as great a sanction as any Books of Precedents ever have, altho Books of Reports are usually approvd by all the Judges.35 And I take Brown the Author of this Book to have been a very good Collector of Precedents. I have two Volumes of Precedents of his Collection, which I look upon as good as any, except Coke and Rastal.36
And the Power given in this Writ is no greater Infringement of our Liberty, than the Method of collecting Taxes in this Province.37
Every Body knows that the subject has the Priviledge of House only against his fellow subjects, not vs. the King either in matters of Crime or fine.38
{ 131 }
Extracts from the Acts of Parliament.39
14. Car. 2nd.40 “And it shall be lawful to and for any Person or Persons authorized by Writ of assistants,41 under the seal of his Majesties Court of Exchequer, to take a Constable, Headborough, or other public officers inhabiting near unto the Place, and in the day time to enter and go into any House, shop, Cellar, Warehouse or Room or other Place, and in Case of Resistance to break open Doors, Chests, Trunks and other Package, there to seize and from thence to bring any Kind of Goods, or Merchandize what soever prohibited and uncustomed and to put and secure the same in his Majesties store House, in the Port [next] to the Place where such seizure shall be made.”
7. & 8th. Willm. 3rd.42 “And that the officers for collecting and managing his Majesties Revenue and inspecting the Plantation Trade in any of the said Plantations shall have the same Powers and authorities &c.43 as are provided for the officers of his Majesties Customs in { 132 } England by the said last mentioned Act made in the 14th. Year of the Reign of K. Char. 2d. and also to enter Houses or Warehouses to search for and seize any such Goods.44 And that the like assistance shall be given to the said officers in the Execution of their office, as by the said last mentiond Act is provided, for the officers in England.”45
Prov. Law. Page 114.46 Be it enacted &c. that there shall be a Superiour Court of Judicature, Court of Assize and General Goal &c. over this whole Province &c. who shall have Cognizance of all Pleas Real, Personal or mixt, as well all Pleas of the Crown &c. and generally of all other matters as fully and amply to all Intents and Purposes whatsoever as the Courts of Kings Bench, Common Pleas, and Exchequer within his Majesties Kingdom of England, have or ought to have.
Petition. To the honorable &c.47
Humbly shews,
{ [facing 132] } { [facing 133] } { 133 }
That he is lawfully authorized to execute the office of surveyor of all Rates, Duties, and Impositions, arising and growing due to his Majesty, at Boston in this Province and cannot fully exercise said office in such manner as his majesties service and the Laws in such Cases require Unless your Honours, who are vested with the Power of a Court of Exchequer for this Province will please to grant him a Writt of assistants, he therefore prays he and his Deputties may be aided in the Execution of said office within his District by a Writ of assistants under the seal of this superior Court in legal Form and according to Usage in his Majestys Court of Exchequer and in Great Britain.
[signed] C.P.
Province of the Massachusetts BayGeorge the second by the Grace of God of Great Britain France and Ireland King, Defender of the Faith &c.48

[salute] To all and singular Justices of the Peace, sherriffs and Constables, and to all other our officers and subjects within said Province and to each of you

[salute] Greeting.

Whereas the Commissioners of our Customs have by their Deputation dated the 8th. day of Jany. 1752, assignd Charles Paxton Esqr. surveyor of all Rates, Duties, and Impositions arising and growing due within the Port of Boston in said Province as by said Deputation at large appears, We therefore command you and each of you that you permit the said C.P. and his Deputies and servants from Time to time at his or their Wi[ll]49 as well in the day as in the Night to enter and go on board any ship, Boat or other Vessel riding lying or being within or coming to the said Port or any Places or Creeks appertaining to said Port, such ship, Boat or Vessell then and there found to View and search and strait to examine in the same, touching the Customs and subsidies to us due, and also in the day Time together with a Constable or other public officer inhabiting near unto the Place to enter { 134 } and go into any Vaults, Cellars, Warehouses, shops or other Places to search and see, whether any Goods, Wares or Merchandizes, in the same ships, Boats or Vessells, Vaults, Cellars, Warehouses, shops or other Places are or shall be there hid or concealed, having been imported, ship't or laden in order to be exported from or out of the said Port or any Creeks or Places appertaining to the same Port; and to open any Trunks, Chests, Boxes, fardells or Packs made up or in Bulk, whatever in which any Goods, Wares, or Merchandizes are suspected to be packed or concealed and further to do all Things which of Right and according to Law and the statutes in such Cases provided, is in this Part to be done: and We strictly command you and every of you that you, from Time to Time be aiding and assisting to the said C.P. his Deputties and servants and every of them in the Execution of the Premisses in all Things as becometh: Fail not at your Peril:
[signed] Witness Stephen Sewall Esqr.50 &c.
1. In JA's hand, one large sheet folded three times to make a pocket-size gathering of sixteen pages; seven pages are blank. Adams Papers, Microfilms, Reel No. 185. Printed by CFA in 2 JA, Works 521–523, and, with extensive annotation, in Quincy, Reports (Appendix) 469–476. For the dating, see note 23 above.
2. That is, the procedure for taking and selling property for nonpayment of taxes authorized under Province Law. Act of 3 Oct. 1730, c. 1, §§12, 13, 2 A&R 552–553.
3. Anthony Fitzherbert, New Natura Brevium (various edns.: French, ca. 1531–1635; English, 1652–1793).
4. The Registrum Brevium, or Register of Writs, a semi-official compilation based on the medieval manuscript registers kept by clerks of Chancery and practitioners. See Percy H. Winfield, The Chief Sources of English Legal History 298–302 (Cambridge, Mass., 1925). The writs to which Thacher refers are found in Registrum Brevium tam Originalium quam Judicialium, Appendix 46–47 (London, 4th edn., 1687). Gray points out that they direct the sheriff to assist a “party to a suit in chancery to get possession, under a decree of the Court, of lands withheld from him by another party to the suit.” Quincy, Reports (Appendix) 396.
5. As the remarks of Otis and Gridley, notes 1769, 3486, below, indicate, the work referred to here is William Brown's Compendium of the Several Branches of Practice in the Court of Exchequer at Westminster (London, various edns., 1688–1725). The writ in question, found at p. 358–361 in the 1688 edition, is set out in full in Quincy, Reports (Appendix) 398–399. See an extract, note 1769 below. See also notes 12 above, 1668 below. A work entitled The Modern Practice of the Court of Exchequer (London, 1731) contains nothing even resembling a writ of assistance.
6. 13 & 14 Car. 2, c. 11, §5(2) (1662), extracted by JA, text at note 4092 below. The section cited bears Thacher out, but it probably should be read with 13 & 14 Car. 2, c. 11, §15, providing that no goods “shall be seized as forfeited” except by persons authorized by the Customs Commissioners, the Treasury, or the Crown.
7. Presumably Horne v. Boosey, 2 Str. 952, 93 Eng. Rep. 963 (K.B. 1733): Trover held to lie against a tidesman (a minor official charged with searching vessels for prohibited goods), who had seized goods ashore and had them condemned in the Exchequer. The Court noted a distinction between a seizure by “a proper officer,” which could be attacked only in the Exchequer, and the seizure by this defendant, “who could not enter a house without a writ of assistance and a peace officer, the words of his warrant being so restrained.” See Quincy, Reports (Appendix) 470 note.
8. That is, 13 & 14 Car. 2, c. 11, note 658 above. For the Act of 7 & 8 Will. 3, see note 15 above.
9. Gray has identified this case as McNeal v. Brideoak, SCJ Rec. 1754, fol. 150 (Suffolk, Feb. 1754), in which the complainants, Ann and Mary McNeal of Dublin, proceeded as “Debtors and Accountants to his Majesty.” The action, described as a “Bill in Equity,” was dismissed and the complainants were allowed an appeal to the King in Council, of which no record has been found. Quincy, Reports (Appendix) 470–471 note. Compare Quincy, Reports 54. See Min. Bk. 67, SCJ Suffolk, Nov. 1752, N–137; Feb. 1754, C–26. The Exchequer jurisdiction in question, either legal or equitable, arose from a writ known as quominus, because the plaintiff made a fictional allegation that he was debtor to the King for the amount of his claim and was “by which less” able to meet his debt. The court acted by virtue of its power in matters affecting the royal purse. See 3 Blackstone, Commentaries *45–46; Plucknett, Concise History 160–161, 170. The Massachusetts court's refusal to act would seem to be a reflection more of its lack of equity powers than of any desire to disclaim the powers of Exchequer, conferred on it by statute. Act of 26 June, 1699, c. 3 §1, 1 A&R 370, set out, note 4698 below. The writ of assistance was part of the Exchequer's common-law revenue jurisdiction, rather than an equitable process. See Quincy, Reports (Appendix) 538–539; Brown, Compendium 28–29; note 18 above; note 3082 below.
10. Thacher here seems to be citing Leglise v. Champante, 2 Str. 820, 93 Eng. Rep. 871 (K.B. 1728) where in an action at law against a customs officer for the seizure of goods which the Exchequer had found not liable to forfeiture, “it was held, that in these cases the officer seizes at his peril, and that a probable cause is no defense.” The authority of this case is cast in doubt by the statute, 19 Geo. 2, c. 34, §16 (1746), continued to 29 Sept. 1764 by 32 Geo. 2, c. 18, §1 (1759), which made a court's certification of probable cause a bar to any suit against the seizing officer. See 12 Viner, Abridgment 173. It seems to have been well established in England, however, that in case of a wrongful search as distinct from a wrongful seizure, probable cause was not a defense to an action, even when the search had been carried out by virtue of a writ of assistance. See authorities cited in Quincy, Reports (Appendix) 533–534 note. These cases were all decided after 1761, but even if this had clearly been the rule when Thacher argued, it would seem to cut against his position, since it demonstrates that the power given by the writ could be curbed by the courts.
11. Illegible in the MS. Gray's reading is “incroached.” Quincy, Reports (Appendix) 471 note. It is textually more likely, but hardly more satisfactory than CFA's reading of “infringed.” 2 JA, Works 521.
12. For the powers of customs officers to enter on special warrant see 12 Car. 2, c. 19 (1660) quoted, note 5 above. In a number of situations the General Court granted provincial customs and other officers power to obtain a special search warrant to search specific premises upon giving information to a justice of the peace. See for example, Act of 13 Feb. 1760, c. 28, §25, 4 A&R 311 (Collector of excise to search for liquors sold without permit); Act of 3 Feb. 1764, c. 28, §5, 4 A&R 684 (Sheriff or constable to have warrant to search for flesh or skins of moose and deer killed out of season). Prior to the Import Act of 20 April 1756, c. 47, §§18–20, 3 A&R 936, province customs officers had the right to search in all suspected places “for illegally imported goods.” In the 1756 act and thereafter the general provision was retained, but officers with a warrant on oath of information could force an entry to search. Compare Act of 27 June 1755, c. 1, §§18, 19, 3 A&R 845. See Frese, Writs of Assistance (dissertation) 179 note, 181 note.
13. Hawkins, Pleas of the Crown 82.
“But it seems to be very questionable whether a Constable can justify the Execution of a general Warrant to search for Felons or stolen Goods, because such Warrant seems to be illegal in the very face of it; for that it would be extremely hard to leave it to the discretion of a common Officer to arrest what Persons, and search what Houses he thinks fit. And if a Justice cannot legally grant a blank Warrant for the Arrest of a single Person, leaving it to the Party to fill it up, surely he cannot grant such a general Warrant, which might have the effect of an Hundred blank Warrants.”
14. Gray's suggestion that JA meant to write, “If some of em are commissioned others are uncommissioned,” seems sound in context, although the MS also supports CFA's reading of “common” and “uncommon.” Quincy, Reports (Appendix) 472 note; 2 JA, Works 522.
15. This is apparently a reference to the prior practice in Massachusetts. See text and note 17 above. Gray reads the passage as “Government Justices” and suggests that it is a reference to the 17th-century English practice under which justices of the peace would issue warrants authorizing a general search for stolen goods upon the complaint of one who had been robbed. Quincy, Reports (Appendix) 472 note. See also 2 JA, Works 522. There is a passage in JA's “Abstract,” at note 33135 below, in which Otis goes on at some length about the former powers of Justices of the Peace to issue general warrants. The use of the phrase “perpetual Edicts” in the present text, however, surely indicates a writ giving a general power of search, rather than the more limited Justice's warrant.
16. Probably a reference to the form of a writ in Brown's Compendium. See note 557 above, note 3486 below. Although this work was not published until 1688, the form recites that the customs officers therein given writs were commissioned by virtue of Letters Patent dated “anno regni nostri vicesimo septimo” (in the twenty-seventh year of our reign), which could refer to no English monarch ruling between Elizabeth I and George II except Charles II. The date of the form would thus be between 1676 and 1685, the year of Charles II's death.
17. Gray notes that the language of the writ is “so curious a justification of Otis's suggestion” that he reprints it in full. Quincy, Reports (Appendix) 398–399. As the following extract may suggest, it is certainly an interesting example of the degeneration of Latin:
“Ac etiam in tempore diurno unacum Constabular' Praeposito Anglice Headborough aut alio publico officiario prope inhabitan” intrare & ire in aliquas Cellas Anglice Vaults Cellur' Repositor' Anglice Warehouses Shopas vel alia loca scrutare & videre utrum aliqua bon' res vel merchandizas. . . . Ac aperire aliquos riscos Anglice Truncks cistas pixid' fardell' Packs fatt' vel de la Bulke quecunque in quibus aliqua bona res vel merchandiz' erint suspect' fore paccat' vel concelat.'” Id. at 399.
The translated form, issued to Charles Paxton in Massachusetts in 1756, is printed in text at note 48100 below.
18. See Clare v. Clare, Talb. 21, 26–27, 25 Eng. Rep. 638, 640 (Ch. 1734) (Talbot, Lord Chancellor):
“The case of Higgins versus Dowler is very imperfectly reported; and was upon a Demurrer, where Things are not argued with that Nicety which they are upon arguing the Merits of a Cause. That of Stanley and Lee has not been particularly mentioned; so that what we have of it is only upon memory: And I think it much better to stick to the known general rules, than to follow any one particular precedent which may be founded on reasons unknown to us: Such a proceeding would confound all Property. . . . The Case of Lady Lanesborough versus Fox is the strongest authority that can be; and even, had it not been in the House of Lords, I should have thought myself bound to go according to the general and known Rules of Law.”
Compare Quincy, Reports (Appendix) 473 note 17. Otis here makes use of two of the loopholes available in the 18th century to ensure that precedent did not stifle the orderly growth of the law. These were the inadequacy of the source of the asserted precedent and an appeal to principles variously described as those of common law, natural law, reason, and common sense. See 12 Holdsworth, History of English Law 150–158; C. H. S. Fifoot, Lord Mansfield 214–218 (Oxford, 1936).
19. Probably an inadvertence for the writ itself. A statute in the language of the petitions upon which the case came up would have been neither unconstitutional nor effective. See text at note 22 above. The petition of Charles Paxton for a writ in 1755, printed at note 4799 below, even if it had been urged in this case, is scarcely less neutral in tone. But compare Quincy, Reports (Appendix) 474 note. Gray suggests that the phrase “natural equity” means that Otis cited Lord Hobart's language in Day v. Savadge, Hobart 85, 87, 80 Eng. Rep. 235, 237 (C.P. 1615): “Even an act of Parliament, made against naturall equitie, as to make a man judge in his owne case, is void in it selfe, for Jura naturae sunt immutabilia, and they are leges legum.” See Quincy, Reports (Appendix) 521–524. See note 41 above.
20. That is, the courts of justice, which “execute” the law. See Quincy, Reports (Appendix) 474 note; No. 46, text at note 1592. Compare Hutchinson's Charge to the Grand Jury, March Term, Suffolk, 1769:
“We, Gentlemen, who are to execute the Law, are not to enquire into the Reason and Policy of it, or whether it is constitutional or not. . . . We, and you, Gentlemen, as the Executive Body, are to enquire what is Law, and see that the Laws are inforced. If we step over this Line, and judge of the Propriety or Impropriety, the Justice or Injustice of the Laws, we introduce the worst sort of Tyranny:—the most absolute Despotism being formed by a Union of the Legislative and Executive Power.” Quincy, Reports 307–308.
21. Bonham's Case, 8 Co. Rep. 113b, 118, 77 Eng. Rep. 646, 652–653 (C.P. 1610), here cited by Otis from the extract of it in 19 Viner, Abridgment 512–513, tit. Statutes (E. 6, p. 15), which is as follows (variations in Coke's text being indicated in brackets):
“It appears in our Books, That in several [many] Cases the Common Law shall [will] controul Acts of Parliament, and sometimes adjudge them to be utterly void; For when an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law shall[will] controul it, and adjudge it[such act] to be void, and therefore in 8 E. 3. 30. a. b. Thomas Tregor's Case upon the Statute of Westm. 2. cap. 38 & Artic. super Cartas cap. 9 Herle said, that Sometimes [some] Statutes are made contrary to [against] Law and Right which the Makers of [those who made] them perceiving will not put them in Execution.”
For discussion of this passage, see text at notes 35–44 above.
22. The reference has not been identified, but it is presumably to the debates in Parliament on 23 Geo. 2, c. 29 (1750) prohibiting iron manufacture in the colonies. See Quincy, Reports (Appendix) 474 note. This is the only mention of the statutes regulating colonial trade and manufacture in either of JA's contemporary accounts. In his later letters, however, JA described Otis' massive attack of “four or five hours” on these Acts. See 10 JA, Works 315–350. He also told Tudor in a letter of 21 Aug. 1818 that “Mr. Otis asserted all these acts to be null and void by the law of nature, by the English constitution, and by the American charters, because America was not represented in Parliament.” Id. at 351. This statement would not seem to be justified by the bare reference here.
23. Freeman v. Bluet, 12 Mod. 394, 396, 88 Eng. Rep. 1403, 1404 (K.B. 1700), an action against a court officer who had seized goods in replevin under a precept from the sheriff directing a return. In upholding a demurrer to a plea of justification, on the ground that it did not allege a return, Holt, C.J., said,
“in all Capias's ad Respondend, or other mean Process to [the] Sheriff [or other immediate officer], if Trespass or false Imprisonment be brought against him for executing them, he cannot justify without showing a Return . . . for, he that has not shewed to the Court that he has done his Duty in what the Process of the Court required him, shall not be justified by the Process.”
Otis seems to be arguing that since the writ of assistance does not require a return the court has no control over its use. See his argument, text at note 35137 below. Compare Thacher's argument, text at notes 9–1061–62 above.
24. That is, the statutes of Charles II referred to in the next paragraph. Compare Thacher's remark, text at note 658 above.
25. 12 Car. 2, c. 19, §1 (1660), discussed, note 5 above.
26. 13 & 14 Car. 2, c. 11, §5(2) (1662), text at note 4092 below.
27. 7 & 8 Will. 3, c. 22, §6 (1696), text at notes 42–4594–97 below.
28. That is, 1 Anne, stat. 1, c. 8, §5 (1702), providing for continuation of the writ of assistance and other processes after the death of the sovereign. JA's notes may be somewhat garbled, but Otis seems to be saying that this statute is of equal force whether the writs are special or general in nature. See his remarks in JA's “Abstract,” text at notes 32–34134–136, and following note 46148 below.
29. These incidents are more fully described in JA's “Abstract,” text at notes 38–42140–144 below.
30. Otis is here apparently rehearsing Thacher's arguments, text at note 961 above, that the Superior Court had renounced the Exchequer powers given it by province law (note 4698 below). The last sentence, which may be inaccurately reported by JA, seems to mean that the only Exchequer powers which the court retained were those given it by provincial and parliamentary Acts of Trade and Revenue over violations of their provisions. See note 18 above. If this is the argument, it may prove too much. For, while the provincial statutes contained sharply limited search provisions (see note 1264 above), in cases under English statutes it could well be argued that the power to issue writs of assistance was a power incident to the revenue jurisdiction, rather than an inherent chancery power which the court had renounced.
31. At notes 42–4594–97 below.
32. The 12th of Charles II is quoted, note 5 above. For the “14th” (i.e. 13th & 14th) of Charles II, see text at note 4092 below.
33. Apparently an inadvertence for 1 Anne, stat. 1, c. 8, §5 (1702). The confusion, whether in Gridley's argument or JA's reporting, may perhaps be explained by the fact that the duration of Parliament and the Privy Council and the tenure of all Crown officers was extended for six months after the death of the sovereign by 6 Anne, c. 7, §§4, 8 (1707).
34. That is, Brown's Compendium, cited in note 557 above.
35. Under the various Licensing Acts which controlled the British press during the greater part of the 17th century, the imprimatur was a required proof that permission to publish had been granted. See 6 Holdsworth, History of English Law 367–378. Upon occasion, however, the judges used it to convey some opinion of a book's value. See John William Wallace, The Reporters 34 note (Boston, 1882). The Compendium bears no such judgment, but only the statement, “Imprimatur, R. Wright, May 1st, 1688.” This was Sir Robert Wright, Chief Justice of the King's Bench, 1687–1688. Gray suggests that Wright's incompetence weakens the value of his imprimatur, relying largely on the judgment of Roger North, whose brother, Baron Guilford, was Wright's personal enemy. Quincy, Reports (Appendix) 477 note. See 6 Holdsworth, History of English Law 507–508, 530, 534. Both Wright's rise to judicial eminence and his conduct upon the Bench under the Stuarts were politically tainted, as was his end, which came in Newgate in 1689 while under indictment for high treason and bribery. He was nevertheless a lawyer of long experience, having entered Lincoln's Inn in 1654, been made serjeant in 1679, and been appointed a Baron of the Exchequer in 1684. DNB.
36. That is, Sir Edward Coke, Booke of Entries; containing perfect and approved Presidents of Counts, Declarations, etc. (London, 1614), and William Rastell, Colleccion of entrees, of declaracions, of barres, replications, rejoinders, issues, verdits, and divers other matters and fyrst an Epistle, with certayne instructions (London, 1566). As to these two basic works on common law pleading, see 5 Holdsworth, History of English Law 384, 461. The volumes of Brown which Gridley owned were probably his Formula bene placitandi; a Book of Entries, containing Precedents (London, 1671), and Methodus Novissima intrandi Placita Generalia (London, 1699). See 5 Holdsworth, History of English Law 385–386; 6 id. at 600, 683, 686.
37. See note 254 above.
38. See Dalton, Country Justice 404: “The Officer, upon any Warrant from a Justice, either for the Peace or Good Behaviour, or in any other Case where the King is a Party, may by Force break open a Man's House to arrest the Offender.” Compare 2 Hale, Pleas of the Crown 82, 92, to the effect that an officer may break a house to arrest a suspect felon, “for it is a proceeding for the king by persons by law authorized”; but that a private person does so at his peril. But see 2 Hawkins, Pleas of the Crown 86–87: “But where one lies under a probable suspicion only, and is not indicted, it seems the better Opinion at this Day, That no one can justify the Breaking open Doors in Order to apprehend him.”
39. The material following is in a more careful hand and was evidently added to the foregoing by JA at some time after the argument.
40. That is, 13 & 14 Car. 2, c. 11, §5(2) (1662). Quotation marks supplied; italics are JA's.
41. There was considerable confusion between this spelling and “assistance.” In the Nov. 1761 argument Gridley urged that “assistants” was correct, and that it signified the controlling power which a constable could exercise in the search. Quincy, Reports 56–57. Contemporary sources indicate that the original spelling was “assistance.” See, for example, Thomas Manley, ed., A Collection of the Statutes Made in the Reigns of King Charles I and King Charles II 131 (London, 1667); J. Keble, ed., Statutes at Large 1216 (London, 1676); compare 5 Statutes of the Realm 394 (London, 1819). Although this spelling was followed in the index to the 1688 edition of Brown's work on Exchequer practice (note 557 above), “assistants” is found in all editions of the Statutes at Large published between 1681 and 1758. See, for example, Keble, ed., Statutes at Large 1218 (London, 2d edn., 1681); William Hawkins, ed., Statutes at Large, 2:583 (London, 1735). In editions of 1758 and after, however, the spelling is once again “assistance.” See John Cay, Statutes at Large, 2:708 (London, 1758); Owen Ruffhead, Statutes at Large, 3:237 (London, 1763). It seems probable that the confusion was due to an error in Keble's 1681 edition of the Statutes at Large. According to R. C. Jarvis, present Intelligence Officer and Librarian, H.M. Customs and Excise, “assistance” is merely an archaic form of “assistants,” meaning a body of official helpers. Letter of 8 Nov. 1963 and memorandum in Adams Papers editorial files. Compare OED. If this interpretation is correct, Gridley's view is sound, regardless of the spelling adopted.
42. That is, 7 & 8 Will. 3, c. 22, §6(2) (1696). Quotation marks supplied. Passages omitted by JA are set out in notes 4395 and 4496 below from Hawkins, Statutes at Large.
43. JA has here omitted the following: “for visiting and searching of ships, and taking their entries, and for seizing and bringing on Shoar any of the Goods prohibited to be imported or exported into or out of any of the said Plantations or for which any Duties are payable or ought to have been paid, by any of the aforementioned Acts.”
44. JA has here omitted the following:
“And that all the Wharfingers, and Owners of Keys and Wharfs, or any Lightermen, Bargemen, Watermen, Porters, or other Persons assisting in the Conveyance, Concealment or Rescue of any of the said Goods, or in the hindring or Resistance of any of the said Officers in the Performance of their Duty, and the Boats, Barges, Lighters or other Vessels, employed in the Conveyance of such Goods shall be subject to the like Pains and Penalties as are provided by the same Act made in the Fourteenth Year of King Charles the Second, in relation to prohibited or uncustomed Goods in this Kingdom.”
45. The section continues with provisions for penalties upon officers who violate the Act and for special pleading on their behalf in actions brought against them for performance of their duties. See note 1062 above.
46. That is, Act of 26 June 1699, c. 3, §1, 1 A&R 370. JA's reference here may be to the text of the Act in Acts and Laws of His Majesties Province of Massachusetts Bay 114 (Boston, 1726), where it appears as 11 Will. 3, c. 3. The relevant section is as follows:
“[T]here shall be a Superiour Court of Judicature, Court of Assize and General Goal Delivery, over this whole Province, to be Held and Kept Annually at the respective Times and Places in this Act hereafter mentioned and expressed, by One Chief Justice, and Four other Justices to be Appointed and Commissionated for the same. Any Three of whom to be a Quorum, who shall have Cognizance of all Pleas, Real, Personal or Mixt, as well all Pleas of the Crown, and all matters relating to the Conservation of the Peace, and Punishment of Offenders; as Civil Causes or Actions between party and party; and between His Majesty and any of His Subjects, whether the same do concern the Realty, and relate to any Right of Freehold and Inheritance; or whether the same do concern the personalty, and relate to matter of Debt, Contract, Damage or personal Injury; and also all mixt Actions which concern both realty and personalty brought before them by Appeal, Review, Writ of Error, or otherwise as the Law directs. And generally of all other Matters as fully and amply to all intents and purposes whatsoever, as the Courts of Kings Bench, Common Pleas and Exchequer within His Majesty's Kingdom of England, have, or ought to have. And are hereby Impowred to give Judgment therein, and award Execution thereupon.”
47. JA has here copied the form of petition used by Charles Paxton in applying for a writ in 1755. The original, printed by Gray, was captioned, “To the Honourable his Majestys Justices of his Superior Court for said Province to be held at York in and for the County of York on the third Tuesday of June 1755.” The writ was issued by order of the Superior Court in August 1755. See Quincy, Reports (Appendix) 402–403 and notes. The document is now in MHi:Misc. MSS.
48. JA has here copied the form of the writ issued to Paxton. The original has not been found. As Gray, who printed JA's copy, notes, it is a translation of the form in Brown's Compendium, note 557 above. Quincy, Reports (Appendix) 404 note.
49. Missing in worn margin of the MS. This is Gray's reading. The Latin is “volunt'.” Quincy, Reports (Appendix) 399, 404.
50. As to Sewall, see note 20 above.

Docno: ADMS-05-02-02-0006-0002-0003

Author: Adams, John
Date: 1761-04

Adams' “Abstract of the Argument”1

Ca. April 1761

Boston Superior Court February 1761.2
On the second Tuesday of the Court's sitting, appointed by the rule of the Court for argument of special matters, came on the dispute on { 135 } the petition of Mr. Cockle3 and others on the one side, and the Inhabitants of Boston on the other, concerning Writs of Assistance. Mr. Gridley appeared for the former, Mr. Otis for the latter. Mr. Thacher was joined with him at the desire of the Court.
{ 136 }
Mr. Gridley.4 I appear on the behalf of Mr. Cockle and others, who pray “that as they cannot fully exercise their Offices in such a manner as his Majesty's Service and their Laws in such cases require, unless your Honors who are vested with the power of a Court of Exchequer for this Province will please to grant them Writs of Assistance. They therefore pray that they and their Deputies may be aided in the Execution of their Offices by Writs of Assistance under the Seal of this Court and in legal form, and according to the Usage of his Majesty's Court of Exchequer in Great Britain.”
May it please your Honors, it is certain it has been the practice of the Court of Exchequer in England,5 and of this Court in this Province, to grant Writs of Assistance to Custom House Officers. Such Writs are mentioned in several Acts of Parliament, in several Books of Reports; and in a Book called the Modern Practice of the Court of Exchequer, We have a Precedent, a form of a Writ, called a Writ of Assistance for Custom house Officers, of which the following6 a few years past to Mr. Paxton under the Seal of this Court, and tested by the late Chief Justice Sewall is a literal Translation.7
The first Question therefore for your Honors to determine is, whether this practice of the Court of Exchequer in England (which it is certain, has taken place heretofore, how long or short a time soever it continued) is legal or illegal. And the second is, whether the practice of the8 Exchequer (admitting it to be legal) can warrant this Court in the same practice.
In answer to the first, I cannot indeed find the Original of this Writ of Assistance. It may be of very antient, to which I am inclined, or it may be of modern date. This however is certain, that the Stat. of the 14th. Char. 2nd. has established this Writ almost in the words of the Writ itself. “And it shall be lawful to and for any person or persons authorised by Writ of Assistance under the seal of his Majesty's Court of Exchequer to take a Constable, Headborough, or other public Officer, inhabiting near unto the place, and in the day time to enter and go into any house, Shop, Cellar, Warehouse, room, or any other { 137 } place, and in case of Resistance, to break open doors, Chests, Trunks and other Package, and there to seize any kind of Goods or Merchandize whatever prohibited, and to put the same into his Majesty's Warehouse in the Port where Seisure is made.”9
By this act and that of 12 Char. 2nd.10 all the powers in the Writ of Assistance mentioned are given, and it is expressly said, the persons shall be authorised by Writs of Assistance under the seal of the Exchequer. Now the Books in which we should expect to find these Writs, and all that relates to them are Books of Precedents, and Reports in the Exchequer, which are extremely scarce in this Country;11 we have one, and but one that treats of Exchequer matters, and that is called the “Modern practice of the Court of Exchequer,” and in this Book we find one Writ of Assistance, translated above. Books of Reports have commonly the Sanction of all the Judges, but books of Precedents never have more than that of the Chief Justice. Now this Book has the Imprimatur of Wright, who was Chief Justice of the King's Bench,12 and it was wrote by Brown, whom I esteem the best Collector of Precedents; I have Two Volumes of them by him, which I esteem the best except Rastall and Coke. But we have a further proof of the legality of these Writs, and of the settled practice at home of allowing them; because by the Stat. 6th Anne which continues all Processes and Writs after the Demise of the Crown, Writs of Assistance are continued among the Rest.
It being clear therefore that the Court of Exchequer at home has a power by Law of granting these Writs, I think there can be but little doubt, whether this Court as a Court of Exchequer for this Province has this power. By the Statute of the 7th. & 8th. W. 3d., it is enacted “that all the Officers for collecting and managing his Majesty's Revenue, and inspecting the Plantation Trade in any of the said Plantations, shall have the same powers &c. as are provided for the Officers of the Revenue in England; also to enter Houses, or Warehouses, to search for and seize any such Goods, and that the like Assistance shall be given to the said Officers as is the Custom in England.”13
Now what is the Assistance which the Officers of the Revenue are to have here, which is like that they have in England?14 Writs of { 138 } Assistance under the Seal of his Majesty's Court of Exchequer at home will not run here. They must therefore be under the Seal of this Court. For by the law of this Province 2 W. 3d. Ch. 315 “there shall be a Superior Court &c. over the whole Province &c. who shall have cognizance of all pleas &c. and generally of all other matters, as fully and [amply]16 to all intents and purposes as the Courts of King's Bench, Common Pleas and Exchequer within his Majesty's Kingdom of England have or ought to have.”
It is true the common privileges of Englishmen are taken away in this Case, but even their privileges are not so in cases of Crime and fine. 'Tis the necessity of the Case and the benefit of the Revenue that justifies this Writ. Is not the Revenue the sole support of Fleets and Armies abroad, and Ministers at home? without which the Nation could neither be preserved from the Invasions of her foes, nor the Tumults of her own Subjects. Is not this I say infinitely more important, than the imprisonment of Thieves, or even Murderers? yet in these Cases 'tis agreed Houses may be broke open.
In fine the power now under consideration is the same with that given by the Law of this Province to Treasurers towards Collectors, and to them towards the subject. A Collector may when he pleases distrain my goods and Chattels, and in want of them arrest my person, and throw me instantly into Goal. What! shall my property be wrested from me!—shall my Liberty be destroyed by a Collector, for a debt, unadjudged, without the common Indulgence and Lenity of the Law? So it is established, and the necessity of having public taxes effectually and speedily collected is of infinitely greater moment to the whole, than the Liberty of any Individual.
Thacher. In obedience to the Order of this Court I have searched with a good deal of attention all the antient Reports of Precedents, Fitz. N. Brev.17 and the Register, but have not found any such Writ as this Petition prays. In the latter indeed I have found Two Writs which bear the Title of Brev. Assistentice, but these are only to give possession of Houses &c. in cases of Injunctions and Sequestration in Chancery. By the Act of Parliament any private Person as well as { 139 } Custom House Officer may take a Sheriff or Constable and go into any Shop &c. and seize &c. (here Mr. Thacher quoted an Authority from Strange which intended to shew that Writs of Assistance were only temporary things).18
The most material question is whether the practice of the Exchequer is good ground for this Court. But this Court has upon a solemn Argument, which lasted a whole day, renounc'd the Chance of [Chancery]19 Jurisdiction which the Exchequer has in Cases where either party is the King's Debtor.
In England all Informations of uncustomed or prohibited Goods are in the Exchequer, so that the Custom House Officers are the Officers of that Court under the Eye and Direction of the Barons and so accountable for any wanton exercise of power.
The Writ now prayed for is not returnable. If the Seizures were so, before your Honors, and this Court should enquire into them you'd often find a wanton exercise of power. At home they seize at their peril, even with probable Cause.
May it please your Honours,
I was desired by one of the court to look into the books, and consider the question now before the court,21 concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but also in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare, that whether under a fee or not, (for in such a cause as this I despise a fee) I will to my { 140 } dying day oppose, with all the powers and faculties God22 has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is. It appears to me (may it please your honours) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution,23 that ever was found in an English law-book. I must therefore beg your honours patience and attention to the whole range of an argument, that may perhaps appear uncommon in many things, as well as points of learning, that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend,24 and the force of them better felt.
I shall not think much of my pains in this cause as I engaged in it from principle. I was sollicited to engage on the other side.25 I was sollicited to argue this cause as Advocate-General, and because I would not, I have been charged with a desertion of my office; to this charge I can give a very sufficient answer, I renounced that office,26 and I argue this cause from the same principle; and I argue it with the greater pleasure as it is in favour of British liberty, at a time, when we hear the greatest monarch upon earth declaring from his throne, that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown.27 And as it is in opposition to a kind of power, the exercise { 141 } of which in former periods of English history, cost one King of England his head and another his throne. I have taken more pains in this cause, than I ever will take again: Although my engaging in this and another popular cause28 has raised much resentment; but I think I can sincerely declare, that I cheerfully submit myself to every odious name for conscience sake; and from my soul I despise all those whose guilt, malice or folly has made my foes.29 Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy a gentleman, or a man are, to sacrifice estate, ease, health and applause,30 and even life itself to the sacred calls of his country. These manly sentiments in private life make the good citizen, in public life, the patriot31 and the hero.—I do not say, when brought to the test, I shall be invincible; I pray GOD I may never be brought to the melancholy trial; but if ever I should, it would be then known, how far I can reduce to practice principles I know founded in truth.—In the mean time I will proceed to the subject of the writ. In the first,32 may it please your Honours, I will admit, that writs of one kind, may be legal, that is, special writs, directed to special officers, and to search certain houses, &c. especially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person, who asks, that he suspects such goods to be concealed inthose very places he desires to search. The Act of 14th Car. II. which Mr. Gridley mentions proves this. And in this light the writ appears like a warrant from a justice of peace to search for stolen goods. Your Honours will find in the old book, concerning the office of a justice of peace, precedents of general warrants to search suspected houses.33 But in more modern books you will find only special warrants to search such and such houses specially named, in which the complainant has before sworn he suspects his goods are concealed; and you will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition being general is illegal. It is a power { 142 } that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance to search special houses,34 may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself before I proceed to other Acts of Parliament.
In the first place the writ is universal, being directed “to all and singular justices, sheriffs, constables and all other officers and subjects, &c.” So that in short it is directed to every subject in the king's dominions; every one with this writ may be a tyrant: If this commission is legal, a tyrant may, in a legal manner also, controul, imprison or murder any one within the realm.
In the next place, it is perpetual; there's no return, a man is accountable to no person for his doings, every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the arch angel shall excite35 different emotions in his soul.36
In the third place, a person with this writ, in the day time may enter all houses, shops, &c. at will, and command all to assist.
Fourth, by this not only deputies, &c. but even their menial servants are allowed to lord it over us—What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God's creation.37 Now one of the most essential branches of English liberty, is the freedom of one's house. A man's house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom house officers may enter our houses when they please—we are commanded to permit their entry—their menial servants may enter—may break locks, bars and every thing in their way—and whether they break through malice or revenge, no man, no court can inquire—bare suspicion without oath is sufficient. This wanton exercise of this power is no chimerical suggestion of a heated Brain—I will mention some facts. Mr. Pew had one { 143 } of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware, so that these writs are negotiable from one officer to another, and so your Honours have no opportunity of judging the persons to whom this vast power is delegated. Another instance is38 this.—Mr. Justice Wally had called this same Mr. Ware before him by a constable, to answer for a breach of the Sabbath day acts, or that of profane swearing. As soon as he had done,39 Mr. Ware asked him if he had done, he replied, yes. Well then, says he,40 I will shew you a little of my power—I command you to permit me to search your house for unaccustomed41 goods; and went on to search his house from the garret to the cellar, and then served the constable in the same manner.42 But to shew another absurdity in this writ, if it should be established, I insist upon it every person by 14th of Car. II. has this power as well as Custom-house officers; the words are, “it shall be lawful for any person or persons authorized, &c.” What a scene does this open! Every man prompted by revenge, ill humour or wantonness to inspect the inside of his neighbour's house, may get a writ of assistance; others will ask it from self defence; one arbitrary exertion will provoke another, until society will be involved in tumult and in blood. Again these writs are not returned. Writs in their nature are temporary things; when the purposes for which they are issued are answered, they exist no more; but these monsters in the law43 live forever, no one can be called to account. Thus reason and the constitution are both against this writ. Let us see what authority there is for it. No more than one instance can be found of it in all our law books, and that was in the zenith of arbitrary power, viz. In the reign of Car. II. when Star-chamber powers were pushed in extremity by { 144 } some ignorant clerk of the Exchequer. But had this writ been in any book whatever it would have been illegal. All precedents are under the controul of the principles of the44law. Lord Talbot Says, it is better to observe these45 than any precedents though in the House of Lords, the last resort of the subject. No Acts of Parliament can establish such a writ; Though it should be made in the very words of the petition it would be void, “An act against the constitution is void.” Vid. Viner.46 But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The Act of 7th and 8th of William III. that the officers of the plantations shall have the same powers, &c. is confined to this sense, that an officer should show probable grounds, should take his oath on it, should do this before a magistrate, and that such magistrate, if he thinks proper should issue a special warrant to a constable to search the places. That of 6th of Anne can prove no more.47
It is the business of this court to demolish this monster of oppression, and to tear into rags this remnant of Starchamber tyranny—&c.
The court suspended the absolute determination of this matter. I have omitted many authorities; also many fine touches in the order of reasoning, and numberless Rhetorical and popular flourishes.48
1. The text that follows is the most complete rendition possible today of JA's “Abstract of the Argument for and against the Writts of Assistance,” probably made by him sometime in the spring of 1761. See text at note 49 above. Five versions of this famous document are here brought together: (1) The text of the Gridley and Thacher arguments from Israel Keith's Common Place Book, as printed in Quincy, Reports (Appendix) 479–482, from a document then (1864) in the possession of John Newell of Pittsford, Vt., and Boston, which recent extensive search has not located; (2) the text of the Gridley and Otis arguments from the Joseph Hawley Common Place Book now in NN:Hawley Papers; (3) the text of the Otis argument as printed in the Massachusetts Spy, 29 April 1773, p. 3, cols. 1–3; (4) the text of the Otis argument as printed in George Richards Minot, Continuation of the History of the Province of Massachusetts Bay, 2:91–99 (Boston, 1803), with paraphrases of the arguments of Gridley and Thacher; (5) Minot's text of the Otis argument as reprinted by CFA with some further minor corrections and the elimination of phrases which JA had described as interpolations, in 2 JA, Works 523–525. All five versions are closely related. The Spy and Minot texts of Otis differ only in corrections of grammar and style, apparently made by Minot, and CFA follows the latter, except for the interpolations. The Hawley version of Otis and that in the Spy are identical, with the exception of material apparently omitted in copying by Hawley and certain touches of style omitted, perhaps for editorial reasons, from the Spy. Gray did not print Keith's text of Otis, but we have his testimony that it closely followed Minot. Quincy, Reports (Appendix) 482. A similar identity prevails among the various texts of the Gridley and Thacher arguments, including Minot's paraphrase.
Although no copy in JA's hand has been found, the evidence that his was the common parent of these five versions seems overwhelming. The similarity in content and phraseology to JA's rough notes has already been pointed out, as have his later recollections that it was his notes which appeared first in the Spy, then in Minot's History of Massachusetts Bay. See text and note 51 above. For other circulation of the “Abstract,” see note 52 above. The best independent evidence of JA's authorship is the Keith Common Place Book. Keith, Harvard 1771, served in the Continental Army and was admitted an attorney in the Superior Court for Suffolk County in March 1780. No record of his clerkship has been found, but he undoubtedly studied law in Boston both before and after his military service. His Common Place Book was said to contain not only the argument on the writs, but other legal notes known to have come from JA. Quincy, Reports (Appendix) 478. On the basis of this evidence it seems a fair conclusion that Keith copied both the argument and the other materials either from JA's own papers, or from a copy by someone who had clerked for him. The history of the Hawley version cannot be so readily traced, but since Joseph Hawley was JA's friend and contemporary at the bar, it seems likely that he too copied the arguments from JA. The only other reasonable hypothesis would seem to be that the Keith and Hawley texts were copied from a summary of the argument which another (perhaps Jonathan Williams Austin, whom JA accused of the 1773 “theft” of the materials, text at note 1 above) had made on the basis of JA's on-the-spot notes, which are indubitably the source of the longer version. This theory seems refuted by the evidence of the diary entry, note 49 above, and by JA's later taking credit for the Spy and Minot texts.
The basic texts followed here are Gray's rendition of the Keith version of Gridley's and Thacher's arguments, and the Massachusetts Spy version of the Otis argument. These are textually the most complete versions and are probably also closest to the missing original. In the footnotes, variations with the other versions have been noted where they seem significant, either as touches of style that might have been JA's, or as examples of later editorial practice.
2. The following text of Gridley's and Thacher's arguments is from Quincy, Reports (Appendix) 479–482. See note 1103 above. Gray pointed to the first paragraph, placing the argument on the second Tuesday of the term, as corroboration of the Keith document's “antiquity and authenticity,” since an order of court at the August term 1759 had provided that “the special pleadings shall come on the second Tuesday in each term.” Id. at 479; see Min. Bk. 71, SCJ Suffolk, Aug. 1759, following N–73. The Massachusetts Spy's version of the Otis argument began with the first sentence of this introduction (erroneously dated Feb. term, 1771), and added that Gridley “endeavoured to support the legality of Writs of Assistance by force of several statutes and precedents in England, but his chief stay he acknowledged was the necessity of the case, and in the course of his arguments he discovered himself to be an ingenious lawyer.” Massachusetts Spy, 29 April 1773, p. 3, col. 1.
3. James Cockle, Collector of Customs at Salem from 1760 to 1764. See Quincy, Reports (Appendix) 422–424. That Cockle was one of the officers who sought writs seems certain from the fact that one was granted to him shortly after the second argument in Nov. 1761. Id. at 422. Paxton was probably the first to apply, however, and the matter was actually heard on the petitions of the merchants and the Surveyor General. See notes 22, 27, above.
4. The Hawley MS is headed “Substance of Mr. Gridley's Argument Before the Superior Court in favor of Writs of Assistance.” The argument begins: “May it please your honors.”
5. Hawley: “Great Britain” for “England.”
6. Hawley here supplies the inadvertent omission of “given.”
7. Hawley omits the writ. According to Gray, who also omitted it from his rendition of the Keith MS, it was the writ granted to Paxton in 1755, printed in text at note 48100 above, which JA had apparently copied from the court files. See Quincy, Reports (Appendix) 480.
8. Hawley here supplies “Court of.”
9. 13 & 14 Car. 2, c. 11, §5(2). See JA's copy, text at note 4092 above. The text of the statute is omitted by Hawley.
10. 12 Car. 2, c. 19, note 5 above.
11. Hawley: “Province” for “country.”
12. Hawley here adds “&c.” and omits the remainder of the present sentence.
13. 7 & 8 Will. 3, c. 22, §6. See JA's copy, text and notes 42–4594–97 above. Hawley omits some portions quoted here.
14. It has been suggested that “like assistance” in 7 & 8 Will. 3, c. 22, §6, may be a reference to 13 & 14 Car. 2, c. 11, §32, providing that royal officers and others concerned were to “be aiding and assisting” the customs officers in performance of their duties. Frese, “Early Parliamentary Legislation on Writs of Assistance,” 38 Col. Soc. Mass., Pubns. 318, 354 note (1959). While “like assistance” certainly does not literally refer to the writ of assistance, the phrase is broad enough to include it as well as the aid and assistance of other officers.
15. That is, 11 Will. 3, c. 3, 1 A&R 370. See JA's copy, text at note 4698 above.
16. Apparently supplied by Gray. See Quincy, Reports (Appendix) 481.
18. Horne v. Boosey, note 759 above. This helps to establish that the “Abstract” is from JA's rough notes, although the case may not have been cited for this proposition.
19. Correction apparently by Gray. See Quincy, Reports (Appendix) 482. Compare JA's rough notes at note 961 above. Interestingly enough, the same error appears in Minot's paraphrase. 2 Minot, History of Massachusetts Bay 90.
20. The text of Otis' argument, up to the sentence at note 47149 below, is from the Massachusetts Spy, 29 April 1773, p. 3, cols. 1–3. The argument was introduced as follows:
“For the massachusetts spy. mr. thomas, As the public have been lately alarmed with the evil and wicked effects of the power lodged in custom-house officers, by virtue of that most execrable of all precepts, a Writ of Assistance: And as I conceive it to be more immediately destructive of the liberty of the subject, than any other innovation of power: The following is offered to the public, being taken from the mouth of that great American oracle of law, James Otis, Esq; in the meridian of his life.”
Then follows the material quoted in note 2104 above, concluding with “Mr. Otis appearing for the inhabitants of Boston, with his usual zeal for the common liberties of mankind, spoke as follows, viz.”
21. Minot substitutes “them” for “the court,” a change typical of his minor improvements of style, most of which will not be noted herein.
22. Hawley here adds “almighty.”
23. Minot: “law” for “the constitution.”
24. This word apparently is illegible in the original. Hawley read it as “answered.” CFA has changed Minot's reading of “descend” to “discerned,” which is probably correct.
25. Minot omits this sentence.
26. In 1769, Otis published in the Boston Gazette a deposition alleged to be Paxton's, dated 28 Feb. 1761, which indicates that a more direct cause of his resignation as Advocate General of Admiralty was the attack upon the Vice Admiralty Court that resulted in the case of Gray v. Paxton, note 21 above. See Quincy, Reports (Appendix) 542 note. Robert Auchmuty was shortly thereafter appointed to the position. See the latter's biography in 12 Sibley-Shipton, Harvard Graduates 12–16.
27. George III, in his accession speech on 18 Nov. 1760, had actually said:
“Born and educated in this country, I glory in the name of Briton; and the peculiar happiness of my life will ever consist in promoting the welfare of a people, whose loyalty and warm affection to me, I consider as the greatest and most permanent security of my throne; and I doubt not, but their steadiness in those principles will equal the firmness of my invariable resolution to adhere to, and strengthen, this excellent constitution in church and state; and to maintain the toleration inviolable. The civil and religious rights of my loving subjects are equally dear to me with the most valuable prerogatives of my crown: and, as the surest foundation of the whole, and the best means to draw down the divine favour on my reign, it is my fixed purpose to countenance and encourage the practice of true religion and virtue.”
This speech was reprinted in its entirety in the Boston News-Letter, 15 Jan. 1761, p. 1, cols. 2–4. In his diary for 9 Feb. 1761, JA set down his favorable reaction to the speech, concluding “These are sentiments worthy of a King—a Patriot King.” 1 JA, Diary and Autobiography200–201.
28. As Gray points out, this “popular cause” was probably Gray v. Paxton. Quincy, Reports (Appendix) 482. See note 21 above.
29. This clause was rendered by Hawley, “whom guilt, malice or folly has made my foes,” and by Minot, “whose guilt, malice or folly has made them my foes.”
30. Hawley: “worthy a gentleman, a man of sense, or a Christian, are, to sacrifice estate, ease, health, honor, applause.”
31. Hawley: “the patriot, the man and the hero.”
32. Hawley and Minot supply “place.”
33. See text at note 1365 above.
34. Minot: “places” for “houses.”
35. Hawley: “raise” for “excite.”
36. The preceding clause, beginning “until the trump,” is one omitted by CFA, on the basis of JA's comments. The presence of both this and the other omitted passage (note 37139 below) in the Keith and Hawley MSS supports Gray's suggestion that in repudiating them JA “was guided by his taste rather than his notes or his memory.” Quincy, Reports (Appendix) 479. JA's notation that these passages were interpolations may be seen in his copy of Minot's History of Massachusetts Bay at p. 95–96, now among his books in the Boston Public Library.
37. This sentence, beginning “What is this,” is the second passage omitted by CFA because disclaimed by JA. See note 36138 above.
38. Hawley telescopes this entire episode into “where the same Mr. Ware from a principle of revenge went on to search a number of houses from Garret to Cellar.”
39. Minot: “finished.”
40. Minot: “said Mr. Ware.”
41. Minot: “uncustomed” — no doubt a proper correction.
42. Compare the account in the version of the argument in the Boston Gazette for 4 Jan. 1762, attributed to Otis. Quincy, Reports (Appendix) 490. Jonathan Pew (or Pue) (d. 1760) was Searcher and Surveyor of the Port of Boston from 1735 until he was succeeded by Paxton in 1752. At the latter date he entered into the same office at Salem, where he served until his death. Book of Charters, Commissions, Proclamations, &c., fols. 80, 173–175, M-Ar; Wolkins, ed., “The Boston Customs District in 1768,” 58 MHS, Procs. 418, 430 (1924–1925). Nathaniel Ware was Comptroller of Customs for the Port of Boston from 1750 until 1764. Book of Charters, &c., fols. 79–80; Wolkins, “Boston Customs District,” 58 MHS, Procs. 418, 430. Abiel Walley was appointed a Justice of the Quorum in Suffolk County, 5 Nov. 1740. Whitmore, Mass. Civil List 128. No documentation of these incidents has been found.
43. Minot omits “monsters in the law.”
44. Minot omits “THE.”
45. Hawley adds “principles of law.”
46. Hawley omits the remainder of this paragraph.
47. The next sentence appears only in the Hawley MS. See note 1103 above. It may be an elaboration of the well-known passage, “the executive courts must pass such acts into disuse.” See notes 42, 2072, above.
48. This paragraph appears in the Hawley MS. At least the first sentence of it also appears in the Keith MS. Quincy, Reports (Appendix) 482. See note 1103above.

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

Author: Hutchinson, Thomas
Date: 1761-12

Thomas Hutchinson's Draft of a Writ of Assistance1

December 1761

Prov. of Mass. BayGeorge the third by the grace of God of Great Britain France and Ireland King Defender of the faith &c.sealTo all and singular our Justices of the Peace Sheriffs Constables and to all other our Officers and Subjects within our said Province and to each of you Greeting.
{ 145 }
Know ye that whereas in and by an Act of Parliament made in the <thir> fourteenth year of the reign of the late King Charles the second <it is declared> the Officers of our Customs and their Deputies are authorized and impowered to go and enter aboard any Ship or Vessel outward or inward bound and for the Purposes in the said Act mentioned and it is <also> in and by the said Act further enacted and declared that it shall be lawful to or for any person or persons authorized by Writ of assistants under the seal of our Court of Exchequer to take a Constable Headborough or other Publick Officer inhabiting near unto the Place and in the day time to enter and go into any House Shop Cellar Warehouse or Room or other Place and in case of resistance to break open doors chests trunks and other package there to seize and from them to bring any kind of goods or merchandize whatsoever prohibited and uncustomed and to put and secure the same in <his Majestys> our Store house in the port next to the place where such seizure shall be made.2
And where as in and by an Act of Parliament made in the seventh and eighth year of the reign of the late King William the third there is granted to the Officers for collecting and managing our Revenue and inspecting the Plantation trade in any of our Plantations the same powers, and authority for visiting and searching of Ships and also to enter houses or warehouses to search for and seize any Prohibited or uncustomed goods as are provided for the Officers of our Customs in England by the said last mentioned Act made in the fourteenth year of the reign of King Charles the second, and the like assistance is required to be given to the said Officers in the execution of their office as by the said last mentioned Act is provided for the Officers in England.3
And where as in and by an Act of our said Province of Massachusetts bay made in the eleventh year of the reign of the late King William the third it is enacted and declared that our Superior Court of Judicature Court of Assize and General Goal delivery for our said Province shall have cognizance of all matters and things within our said Prov• { 146 } ince as fully and amply to all intents and purposes as our Courts of King's Bench Common Pleas and Exchequer within our Kingdom of England have or ought to have.4
And whereas our Commissioners for managing and causing to be levied and collected our customs subsidies and other duties have by Commission or Deputation under their hands and seal dated at London the 22d. day of May in the first year of our Reign deputed and impowered Charles Paxton Esqr. to be Surveyor and Searcher of all the rates and duties arising and growing due to us at Boston in our Province aforesaid and in and by said Commission or Deputation have given him power to enter into any Ship Bottom Boat or other Vessel and also into any Shop House Warehouse Hostery or other Place whatsoever to make diligent search into any trunk chest pack case truss or any other parcell or package whatsoever for any goods wares or merchandizes prohibited to be imported or exported or whereof the Customs or other Duties have not been duly paid and the same to seize to our use In all things proceeding as the Law directs.5
Therefore we strictly Injoin and Command you and every one of you that, all excuses apart, you and every one of you permit the said Charles Paxton according to the true intent and form of the said commission or deputation and the laws and statutes in that behalf made and provided, as well by night as by day from time to time to enter and go on board any Ship Boat or other Vessel riding lying or being within or coming to the said Port of Boston or any Places or Creeks thereunto appertaining such Ship Boat or Vessel then and there found to search and oversee and the persons therein being strictly to examine touching the Premises aforesaid and also <according to the form effect and true intent of the said commission or deputation> in the day time to enter and go into the vaults cellars warehouses shops and other places where any prohibited goods wares or merchandizes or any goods wares or merchandizes for which the customs or other duties shall not have been duly and truly satisfied and paid lye concealed or are suspected to be concealed, according to the true intent of the law to inspect and oversee and search for the said goods wares and merchandizes, And further to do and execute all things which of right and according to the laws and statutes in this behalf shall be to be done. And we further strictly Injoin and Command you and every one of you that to the said Charles Paxton Esqr. you and every one of you from time to time be aiding assisting and helping in the execution of { 147 } the premises as is meet. And this you or any of you in no wise omit at your Perils. Witness Thomas Hutchinson Esq. at Boston the day of December in the Second year of our Reign Annoque Dom. 1761.6
[signed] By order of Court
N.H. Cler.7
1. In Hutchinson's hand, Dec. 1761. Adams Papers, Microfilms, Reel No. 185. It is unclear how this document found its way into the Adams Papers. Gray printed it, identifying it as from the court files. Notations on the back of the writ as to the issuance of writs to individuals between 1763 and 1769, in the hand of Superior Court Clerk Samuel Winthrop, not printed here, confirm this suggestion. Perhaps Gray, who had access both to the court files and to the Adams Papers, inadvertently effected a transfer. See Quincy, Reports (Appendix) 418–421, 434. It is photographically reproduced in Wolkins, “Writs of Assistance in England,” 66 MHS, Procs. 362 (1936–1941). See Freiberg, Prelude to Purgatory 18 note. Hutchinson's draft was undoubtedly used as the basis for all subsequent writs issued. Compare the writ issued to Nathaniel Hatch, 3 June 1762, in SF 100515b.
2. 13 & 14 Car. 2, c. 11, §5(2), text at note 4092 above.
3. 7 & 8 Will. 3, c. 22, §6(2), text at notes 42–4594–97 above.
4. Act of 26 June 1699, 1 A&R 370, text at note 4698 above.
5. As to Paxton's commission, see Quincy, Reports (Appendix) 421 note.
6. The last three words are in another hand, perhaps that of Nathaniel Hatch, a clerk of the Superior Court. See Quincy, Reports (Appendix) 418.
7. The initials (standing for Nathaniel Hatch) are in Hutchinson's hand, but “Cler.” (for Clerk) is not; Gray suggests it is in Samuel Winthrop's hand. See Quincy, Reports (Appendix) 418.

Docno: ADMS-05-02-02-0006-0003-0001

Editorial Note

In this, Adams' earliest known appearance in an Admiralty action for a violation of the Acts of Trade, he and James Otis argued for Timothy Folger, Searcher and Preventive Officer at Nantucket. The lawyers were not engaged on the side of royal authority, however. Folger was a native of the island, sympathetic to Massachusetts mercantile interests. Arrayed against him were the customs officers of the port of Boston, backed by the newly created American Board of Customs Commissioners.
The Boston customs establishment, like that in other English and colonial ports, was under the joint control of a Collector and a Comptroller. Until 1767 these officers were appointed by the Commissioners of Customs in England,1 and were responsible to John Temple, Surveyor General of the Customs for the Northern District, also an appointee of the Com• { 148 } missioners. Temple was empowered to exercise disciplinary control over inferior officers and add his efforts to theirs in the control of illicit trade throughout the northern colonies. Acting in this capacity, he had commissioned Folger to serve at Nantucket in 1764.2
The Boston officers, Joseph Harrison, Collector, and Benjamin Hallowell, Comptroller, later claimed that they had always disapproved of Folger's position,3 and there is reason to believe that this claim was not entirely the product of hindsight. In the first place, there was a serious legal question whether Temple had power to appoint such an officer. Secondly, on a more immediate level, Nantucket was traditionally within the port of Boston, so that Folger's presence deprived Harrison and Hallowell of a portion of the income from fees and forfeitures which was a substantial part of their compensation.4
Finally, and most important, Folger represented a threat to the security of the revenue. Temple, who took office at the time of the writs of assistance controversy in 1761 (No. 44), had at first won a reputation as a dedicated and successful officer. From the beginning he had shown sympathy with the position of the Boston merchants, however, and his feelings soon manifested themselves in an open feud with Governor Bernard of Massachusetts and in doubts of the wisdom and efficacy of parliamentary efforts to raise a revenue in the colonies. Yet, although his brush with Bernard, in which he had dismissed James Cockle, Collector at Salem, on charges of corruption, had won him the acclaim of the merchants, it had also been approved by his superiors in England.5
{ 149 }
While Temple thus remained in favor, his appointment of Folger in 1764 is consistent with an intent to use his powers to mitigate the effect of the new duties and enforcement measures imposed by the American Act of that year.6 There was both practical justification and precedent for the appointment of an officer at Nantucket. The distance of the island from Boston made customs enforcement difficult and meant a long voyage around Cape Cod for vessels seeking to enter or clear. As a result, for at least forty years an officer appointed either by the Surveyor General or the Collector of Boston had been stationed there.7 Folger's background suggests other purposes, however. Descended from one of Nantucket's oldest families and deep in local politics, he had been master or part-owner in numerous whaling and trading voyages, and kept a store in which imported goods were sold. In addition he was engaged in extensive dealings in whale oil with various merchants, including John Hancock.8 Whether Temple in• { 150 } tended it or not, there now existed at Nantucket a sizable loophole for evaders of the Acts of Trade.
If the Boston customs officers had borne Folger's appointment with misgivings, they had made no formal protest. Temple was not only their superior, but a dangerous opponent, as his contest with Bernard had shown. Moreover, the political lines were still vague enough so that, despite his opinions, Temple could not be characterized as an enemy of the revenue.9 The Townshend Acts, passed in the summer of 1767, changed both of these conditions. Temple's post as Surveyor General was eliminated in the creation of the American Board of Customs Commissioners, a five-man body which was to sit at Boston and carry out the functions of control and management previously within the province of the English Customs Commissioners. Temple was made a Commissioner, but his former authority was now to be exercised by a majority of the Board.10
At the same time the political situation was solidified by the colonial reaction to the import duties laid by the Acts.11 Inspired by the vote of the Boston town meeting in the fall of 1767, a drive for the nonimportation of British goods developed, uniting and defining the opposition to royal authority. Folger, elected to an unruly House of Representatives in 1767, was clearly a part of this opposition. In January 1767 Temple had married Elizabeth, daughter of James Bowdoin, a prominent merchant and member of the Council, who became one of the leaders in the fight for nonimportation. Whatever his prior vacillations, Temple too was now definitely aligned with the Boston faction.12 The other Commissioners saw as their first duty { 151 } the plugging of procedural loopholes that encouraged smuggling. Temple, who felt that compliance could be obtained without undue restrictions, was from the beginning of their deliberations an articulate but ineffective minority of one.13 The Boston customs officers now had both higher authority to support them in opposing Folger and a clear-cut political basis for doing so.
After the Commissioners took office on 16 November 1767 they occupied themselves in clarifying the scope of the new statutes, which were to take effect on 20 November, and in determining the extent of their new domain and the current state of the customs establishment. From the moment when three of them arrived from England on 5 November in the midst of a well-behaved but hostile Pope Day celebration, they had been aware of the opposition to them; they thus seemed determined to move carefully.14
The first call to action came on 29 January 1768 when Folger reported that a week previously he had seized the sloop Cornelia, William Summers master, at Tarpaulin Cove in the Elizabeth Islands, the easterly boundary of Buzzards Bay. The vessel was ostensibly bound for New York from the Dutch island of St. Eustatia with a cargo of eighteen casks of Bohea tea, a commodity that could be imported only by way of England and upon pay• { 152 } ment of the new duties.15 He had brought the Cornelia to Nantucket, sequestered her cargo in his house, and now sought advice on how to proceed. The Commissioners referred him to their solicitor, Samuel Fitch, for legal assistance and directed him to report the seizure to Harrison and Hallowell.16
These officers at once raised the question of Folger's authority to seize the vessel and, after consulting with Jonathan Sewall, Advocate General in Admiralty, informed Folger that his commission was invalid and that the seizure would fail if a claim were entered for the vessel or cargo. They offered, however, to let him accompany them to Nantucket to seize her again under proper authority. According to Harrison's later account, Folger agreed to do so and to join with them in the forfeiture proceedings in exchange for a substantial share as informer. When the time came to leave for the island, however, Folger backed out, explaining that his “friends” had advised him not to join, and that he was determined to file an information in his own right. Knowing that James Otis was one of Folger's “friends,” Harrison immediately dispatched Hallowell and George Lyde, Surveyor and Searcher of the port, to Nantucket, where they seized the Cornelia and cargo. Upon their return they found that Folger had, on 4 February, filed his information in the court of Admiralty. A new attempt to win him over failed, and, on 12 February, Harrison, Hallowell, and Lyde joined in a second information against vessel and tea.17
{ 153 }
Hearings in both actions were set for 29 February, then continued.18 In the meantime other pressures were building up. On 26 February, with Folger voting in the majority, the House approved nonimportation resolutions, which pledged it, among other things, “to discountenance the use of foreign superfluities, and to encourage the manufactures of this province.”19 The Customs Commissioners met on 7 March and dismissed Folger, determining that a nominee of the Boston collector should be appointed in his stead. There was an immediate outcry in the press that Folger had been dismissed solely because of his vote on the resolves. The Board, in a later statement of its position, admitted asking him about his vote, but insisted that “he had been before charged with being concerned in Trade, and he was only told that the Board had no further service for him.” The Commissioners also suggested that direct opposition to the principal officers of the port and open alliance with the antigovernment faction did not constitute the conduct expected in the customs service.20 For whatever reason, Folger was no longer searcher and preventive officer when the case of the Cornelia came to trial.
Both proceedings were tried in the court of Admiralty on 21 and 26 March before Judge Robert Auchmuty, probably in a combined hearing.21 { 154 } No claim for vessel or goods appears to have been filed in either suit, but Adams and Otis were opposed by Jonathan Sewall, who had intervened in Folger's proceeding on behalf of the Crown and was doubtless of counsel for Harrison and his associates in their information. Adams' role is perhaps unfairly minimized in the later report of the Commissioners that Folger “having Mr. Otis for his Lawyer, the Cause was contested with great Spirit.”22
The three documents printed here are: (I) Adams' minutes on the depositions of several witnesses as to Folger's performance of his functions; (II) Adams' minutes of the arguments on both sides; and (III) Auchmuty's opinion and decree in the case, an unusual report which summarizes the arguments and deals with the questions involved in great detail.
Sewall's position was, first, that by statute only a duly commissioned customs officer could seize; second, that Folger had not been duly commissioned; and, third, that if his commission were valid, it had been terminated when Temple's office was merged in that of the American Board of Customs Commissioners. In reply Adams and Otis contended that no commission was necessary for the seizure, first, because under applicable statutes evidence of reputation as an officer was sufficient; second, because Folger had been a de facto officer whose acts were valid despite lack of authority. Then they argued in the alternative that Folger's commission was properly given by Temple, did empower him to make seizures, and was still in force despite the establishment of the American Customs Commissioners.
On 2 April, Auchmuty handed down his opinion and decree, dismissing Folger's information. He found that the statutes allowing reputation evidence created only a presumption, rebutted by the production of the invalid commission under which Folger had acted. Further, the common law rules validating the acts of a de facto officer were intended to protect innocent third parties who had relied upon the officer's apparent status; they could not be taken advantage of for his own profit by the officer himself. As for the commission, Auchmuty held that Temple had no power to create new officers, and, although he might have created a deputy, he had not done so in this case, thus making it unnecessary to consider in detail the effect of the creation of the American Commissioners.
Auchmuty's argument on the reputation statutes seems a proper construction. As for the de facto argument, he managed to turn Otis' own authority against him in pointing out the distinction between Folger's case and the cases chiefly relied on. If the arguments that Folger acted in good faith and that the proceeds of the forfeiture were a kind of compensation for his efforts might have altered the result, at least in a modern view, they do not seem to have been made by counsel.23
{ 155 }
The question of the commission is more difficult. As Adams seems to have argued, the statutes establishing the customs were vague as to the types and duties of officers, and ambiguous as to the source of the power to appoint.24 Temple's general powers probably could have been read as implying an authority to create lesser officers to implement them; if so, it would seem unduly restrictive to require that this authority be exercised only through the formal creation of a deputy surveyor general. The real question was whether an officer so created had the power to seize, in view of the statutory limitation on that power. As an original matter, the language of that limitation, “officers of his majesty's customs for the time being,”25 could be stretched to include a person situated as Folger was, but the point does not seem to have been pressed by Adams or Otis, and Auchmuty did not address himself to the question. Even if Folger were duly empowered to seize, however, another ground supported Auchmuty's decision.
This ground was the fact that not only had Temple been removed from office but that the office itself had been abolished. The analogy to officers whose powers survive the death of the principal, urged by Otis, was thus inapposite. Here, the existence of the authority which had created the lesser office, rather than the life of the individual who had made the appointment, had terminated; it seems obvious that lesser offices also should cease to exist, barring express confirmation or ratification.26 Adams and Otis urged certain statutes as confirmatory, but these acts clearly applied only to appointments by the English Commissioners. They apparently did not argue that the American Commissioners had ratified Folger's appointment by keeping him on after November 1767, or even by dismissing him as unfit, rather than as a usurper. Thus, despite the obvious political advantage in a finding against Folger, Auchmuty's opinion seems on the merits to be sound.
Having dismissed Folger's information, Auchmuty on 4 April decreed in favor of Harrison, Hallowell, and Lyde in the other proceeding.27 Fol• { 156 } ger appealed both decisions to the High Court of Admiralty, but the result is not known. In any event, the vessel was sold, and the governor received his one-third share.28 The victory can have been small consolation to the Commissioners, however; they were almost at once embroiled in the disastrous consequences of the seizure of John Hancock's sloop Liberty (No. 46), which demonstrated that countering colonial resistance was more than a matter of plugging loopholes.
Not satisfied with the ordinary appellate process, Folger sailed to England in August 1768. There he petitioned the Lords of the Treasury for relief, asserting that the Cornelia and his position had both been unjustly taken away from him and that, as he had given up his position as shipmaster to serve as a customs officer, he was “now out of all employ whatsoever.” The last was a manifest exaggeration since he had been master on the voyage that brought him to England.29 His memorial was referred to the American Board of Customs Commissioners, who finally replied on 24 July 1769, denying the validity of Folger's complaints and pointing out his relations with the antigovernment faction.30 No record has been found of further action on the matter, but Folger was doubtless able to survive his losses, thanks to various maritime and mercantile ventures, which, despite his protestations, he never seems to have abandoned completely. That he did not fall out of political favor altogether appears in his appointment as { 157 } Justice of the Peace for Nantucket County in 1771. Thereafter, he went on to play a leading role in that peculiar mixture of seamanship and diplomatic intrigue which was Nantucket's brief flirtation with neutrality during, and for a decade or so after, the Revolution.31
1. For the statutory authority of the Commissioners, see notes 1351 and 1452 below. The collector was primarily responsible for gathering the revenue; entering, registering, bonding, and clearing vessels; and prosecuting violations of the Acts. The comptroller checked the collector's performance of these duties and audited his accounts. In Boston these officers were assisted by a surveyor and searcher and a tide surveyor (both also commissioned by the Customs Commissioners), who were charged with boarding and searching vessels for illegal goods. There were also a deputy collector and about a dozen waiters, tidesmen, boatmen and the like, all appointed locally. See Instructions by the Commissioners of His Majesty's Customs to [] who is established Collector of His Majesty's Customs at[] 4 (London, ca. 1764); 4 Andrews, Colonial Period 204–212; letter of Joseph Harrison and Benjamin Hallowell to American Customs Commissioners, 30 April 1768, PRO, Treas. 1:465, fols. 179–193, printed in Wolkins, ed., “The Boston Customs District in 1768,” 58 MHS, Procs. 418, 429–432 (1924–1925). As JA suggests, text at note 240 below, the statutes did not even attempt to limit the numbers of these officers or to define their duties. Their titles and functions were modeled on the English establishment, which had evolved from medieval administrative practice without benefit of parliamentary control. See Hoon, English Customs 5–25; 4 Andrews, Colonial Period 178–221.
2. As to the surveyor general's powers, see 4 Andrews, Colonial Period 202–204. This office was also modeled on the English system. See Hoon, English Customs 113–114, 190–191. For Folger's deputation, see note 745 below.
3. In April 1768, after Folger had been dismissed, and again in July 1769, Harrison and Hallowell reported that their doubts of Folger stemmed from the beginning of his tenure. Wolkins, “Boston Customs District,” 58 MHS, Procs. 433–434; Harrison to Commissioners, 27 July 1769, PRO, Treas. 1:471, fols. 189–190.
4. The legal problems are discussed in text at notes 24–26 below. The position of Nantucket is described in Wolkins, “Boston Customs District,” 58 MHS, Procs. 421, 428–429. For the importance of fees, see id. at 438, 445; Harrison to Temple, 30 May 1766, 1 Bowdoin-Temple Papers (9 MHS, Colls., 6th ser.) 74–75 (1897); Barrow, Colonial Customs 272–274; Instructions by the Commissioners 1 (1764); 6 W. & M., c. 1, §5 (1694); 5 Geo. 3, c. 45, §27 (1765). Compare Sewall's comment, text at note 2765 below.
5. Temple, born in Boston, but raised in England, was appointed surveyor general in Dec. 1760, but did not arrive in Boston until Nov. 1761. Treasury Warrant, 1 Dec. 1760, PRO, Treas. 11:26, p. 5 (a reference furnished the editors by Thomas C. Barrow). See 1 Bowdoin-Temple Papers xv–xvii; Quincy, Reports (Appendix) 428 note; Temple to Commissioners, Jan. 1762, Temple Letter Book, 1762–1768, fols. 7–9, MHi; Temple's Memorial, undated, id. at fol. 187. His early zeal is commended in Thomas Whately to Temple, 18 June 1764, id. at fols. 19–21. For the Cockle-Bernard affair, see Barrow, Colonial Customs 406–408; Ubbelohde, Vice Admiralty Courts 58–60; Whately to Temple, 5 Nov. 1764, 1 Bowdoin-Temple Papers 36–39; Joseph Harrison to Temple, 12 June 1765, id. at 57–58; Commissioners to Temple, 9 March 1765, 1 Bowdoin-Temple MSS, fol. 60, MHi. The feud with Bernard and opposition to the customs service seem to have begun with Temple's sympathy toward Benjamin Barons, dismissed as Collector in 1761. See note 644 below; Barrow, Colonial Customs 358–359; No. 44, note 21. For Temple's adverse reactions to the American Act, 4 Geo. 3, c. 15 (1764), and the Stamp Act, 5 Geo. 3, c. 12 (1765), see Temple to Whately, 10 Sept. 1764, 1 Bowdoin-Temple Papers 24–28. Temple and Bernard also could not agree on procedures for clearing vessels without stamps. See Edmund S. and Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution 134–139 (Chapel Hill, 1953).
6. 4 Geo. 3, c. 15 (1764). Folger was commissioned on 17 Aug. 1764. See note 745 below. For fears of the Boston customs officers, expressed in April 1768, see Wolkins, “Boston Customs District,” 58 MHS, Procs. 434–435. Temple had previously appointed several minor functionaries in the port of Boston, and had made one “Mr. Hubbard” deputy collector at Stamford, Conn., but these seem to have been ordinary dispensations of patronage. See id. at 418, 431–432; Harrison to Temple, 30 May 1766, 1 Bowdoin-Temple Papers 74–75. In 1764 and 1765, in addition to Folger, he appointed his brother-in-law, John Fenton, deputy collector at Albany; Edward Winslow, deputy collector at Plymouth; James McCobb, searcher and preventive officer at “the port of Kennebec”; and other similar officers at Charleston, Annapolis, Cape Breton, and Canso. Wolkins, “Boston Customs District,” 58 MHS, Procs. 418, 435–436; 1 Bowdoin-Temple Papers 66–70; PRO, Treas. 1:471, fols. 192–193; Book of Commissions, 1677–1774, fols. 44–45, 48, M-Ar; Temple to Commissioners, 10 April 1766, Temple Letter Book, 1762–1768, fol. 155. MHi. His appointments may all represent an effort to place favorably disposed men in strategic locations. For Temple's defense of the appointments, see Temple to Treasury, 10 Aug. 1769, 7 Bowdoin-Temple MSS 18–27, MHi.
7. Wolkins, “Boston Customs District,” 58 MHS, Procs. 432–433. See note 1878 below.
8. On the Folger family, see Alexander Starbuck, The History of Nantucket 113, 740–755 (Boston, 1924), where the Timothy Folger in question here (1732–1814) is genealogically confused with his uncle at p. 749. Compare 1 Vital Records of Nantucket, Massachusetts, to the Year 1850 509 (Boston, 1925); 3 id. at 472 (Boston, 1927); 5 id. at 280 (Boston, 1928). Folger was appointed coroner in 1762. Whitmore, Mass. Civil List 159. His mercantile interests are catalogued in Joseph Harrison's Report to the American Customs Commissioners on Folger's memorial, PRO, Treas. 1:471, fols. 472–474. See also 1 Commerce of Rhode Island (69 MHS, Colls.) 97–98 (1914). For the connection with Hancock, see, for example, Folger to Hancock, 28 June 1764, 2 Hancock Papers 165, MB; list of debts to Hancock, 4 May 1769, id. at 227. See also W. T. Baxter, The House of Hancock 169–174, 226–231 (Cambridge, Mass., 1945); Abram E. Brown, John Hancock His Book 274 (Boston, 1898); Edouard A. Stackpole, The Sea-Hunters 88 (N.Y., 1953). For his subsequent career, see note 31 below.
9. Harrison, appointed collector in 1766, was doubtless further inhibited by the fact that he had obtained his position in part through Temple's influence, and had assisted in presenting Temple's case in the matter of Cockle in England. See Temple to Whately, 3 Oct. 1764, 1 Bowdoin-Temple Papers 29; Harrison to Temple, 12 Jan. 1765, id. at 42–45; 12 July 1765, id. at 62–64. Moreover, Harrison may have had some sympathy for the colonial view himself. See William Molineux to——, June 1768, 3 Chalmers New England MSS 1, MH. Temple's strength was dependent in great part upon his family connection with the Grenvilles, who had been his patrons during his early years in England and continued to ease the way for him. See 1 Bowdoin-Temple Papers 1, and materials cited in note 5 above. See also Charles Paxton to George Townshend, 6 Nov. 1769, 56 MHS, Procs. 351–352 (1922–1923).
10. The Commissioners were authorized by 7 Geo. 3, c. 41 (1767). For their commission, see note 341 below. See also Clark, “The American Board of Customs, 1767–1783,” 45 AHR 777–785 (1940). The offices of all the colonial surveyors general were abolished and their commissions revoked when the Board was commissioned. Id. at 783; Samuel Venner to Thomas Bradshaw, 28 March 1768, PRO, Treas. 1:465, fols. 250–251.
11. 7 Geo. 3, c. 46, §§1–7 (1767)
12. On nonimportation, see Arthur M. Schlesinger, The Colonial Merchants and the American Revolution, 1763–1776 106–111 (N.Y., 1918). Folger sat for a single term in the House at this time. Starbuck, History of Nantucket 635; 18 A&R 225. For Temple's marriage, see 30 Boston Record Commissioners, Reports 329 (1903); 1 Bowdoin-Temple Papers 80–81. The Commissioners and Hutchinson both blamed Temple's opposition on his marriage, which brought him also into close relationship with James Pitts and John Erving, patriot members of the Council. See Hutchinson to ——, Dec. 1769, 26 Mass. Arch. 417; Commissioners to Treasury, 6 Jan. 1769, PRO, Treas. 1:471, fols. 438–439, 452.
13. For the disputes between Temple and the Commissioners, see Clark, “American Board of Customs,” 45 AHR 782, 790–791. Temple dissented in the Board's determination to flee to Castle William after the Liberty riots in June 1768 (No. 46) and in the dismissal of John Fisher, collector at Salem, for corruption in July 1768. In the latter case, he was upheld by the Lords of the Treasury, who ordered Fisher reinstated. See No. 47, note 7. Finally in Feb. 1769 the other four members of the Board complained formally and at length to the Treasury about Temple's continuing opposition to their doings. PRO, Treas. 1:471, fols. 429–430. See also sources on Temple's marriage, note 12 above. For a sympathetic view of Temple's position, see Memorial of Samuel Venner to the Duke of Grafton, 1 May 1769, PRO, Treas. 1:471, fols. 495, 497. As to Venner, see note 16 below. Temple was finally dismissed in the fall of 1770, but he soon obtained a position in the English customs and lived to be British consul at New York after the Revolution. Clark, “American Board of Customs,” 45 AHR 791; 1 Bowdoin-Temple Papers xvi–xvii, 151–152, 281–282.
14. See Commissioners to Lords of Treasury, 12 Feb. 1768, PRO, Treas. 1:465, fols. 330–334; Charles Paxton to George Townshend, 24 Feb. 1768, 56 MHS, Procs. 348–349 (1922–1923). For examples of their activities, see opinions of the solicitor general on construction of the statutes, 15 Dec. 1767 and 18 Jan. 1768, PRO, Treas. 1:465, fols. 138–144; extracts of general letters to the collector of each port, 10 Dec. 1767 and 11 Jan. 1768, id., 1:471, fols. 177, 179. The Minute Book of the Vice Admiralty Court shows that no seizures were prosecuted between Nov. 1767 and the entry of Folger's suit, note 17below. The arrival of the Commissioners is described in Clark, “American Board of Customs,” 45 AHR 785–786. Following the formula prescribed for the English Commissioners in 6 W. & M., c. 1, §5 (1694), Temple and Henry Hulton, “the first two named in the Commission,” took oath in the Superior Court, “before the Barons of the Exchequer,” on 16 Nov. 1767. See Minutes of the Commissioners, 16 Nov. 1767, 7 Bowdoin-Temple MSS 147, MHi; compare Min. Bk. 86, SCJ Suffolk, Aug. 1767, following N–115.
15. The import restrictions were laid by 7 Geo. 1, Stat. 1, c. 21, §9 (1721), and the duties by 7 Geo. 3, c. 46 (1767).
16. Letters of Folger to Commissioners, 29 Jan., 1 Feb. 1768, PRO, Treas. 1:471, fols. 171–174; Minutes of the Commissioners, 29 Jan., 1 Feb. 1768, 7 Bowdoin-Temple MSS 147, MHi. Compare the account of the Commissioners replying to Folger, 24 July 1769, PRO, 1:471, fol. 363. According to Samuel Venner, writing after his dismissal as secretary to the Commissioners (No. 46, notes 20, 27), almost as soon as the Board was constituted, the Commissioners had begun a concerted attack on Temple by questioning the legality of a list of his former appointments which he had submitted. Upon the seizure of the Cornelia,
“the Board having consulted Mr. Samuel Fitch, then acting as their Soliciter, he reported that a Libell should be filed in the Court of Vice Admiralty against the Vessel and Goods. But the Commissioners apprehending that this would give a Sanction to such Officers [i.e.Temple's appointees], immediately declared that Mr. Folger had no Power to make such Seizure, and directed the Collector and Comptroller of the Port of Boston to reseize the Vessel and Cargo.” Venner to Duke of Grafton, 1 May 1769, PRO, Treas. 1:471, fol. 496.
The chief materials cited here and in note 17, above, supporting the view that Harrison and Hallowell took the initiative to reseize, were prepared by the Commissioners or the officers, and are thus as liable to prejudice as Venner's account. Temple's own copy of the Commissioners' Minutes indicates that he did not submit a list of his appointees until 14 March, however. 7 Bowdoin-Temple MSS 151, MHi. Folger's Memorial to the Treasury, 24 Nov. 1768, states that it was the collector and comptroller who declared the seizure illegal. PRO, Treas. 1:471, fols. 366–367. Although the Commissioners were probably unofficially aware of what was going on, the fairest conclusion seems to be that their opposition to Temple's appointments was brought about by Folger's case, rather than that the opposition to Folger was a calculated part of a scheme directed against Temple.
17. Folger v. The Cornelia and 18 Casks of Tea, Vice Adm. Min. Bk., 4 Feb. 1768; Harrison v. The Cornelia and 18 Casks of Tea, id., 12 Feb. 1768. See notices of monitions, Boston Gazette, 18 Feb. 1768, p. 1, col. 1. For accounts of the maneuvering prior to the filing of suit, see the materials cited above, note 16; Harrison and Hallowell to Commissioners (extract), 8 March 1768, PRO, Treas. 1:471, fols. 181–182; Folger's Memorial, 24 Nov. 1768, id., fols. 366–367; Harrison to Commissioners, 21 June 1769, id., fols. 472–475. Harrison's fears about Otis are substantiated by the latter's familiarity with Folger's commission in the incident of 11 Feb., described below, note 2260. It was Harrison's letter of 21 June 1769, containing the reference to Folger's “friends,” which started the bad blood between Otis and the customs officials leading to Otis' disastrous fight with Commissioner John Robinson. See Minutes of the Commissioners, 4 Aug. 1769, 7 Bowdoin-Temple MSS 188, MHi. As to the fight and subsequent litigation in which JA was of counsel for Otis, see 2 JA, Diary and Autobiography47–48.
18. Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768.
19. Mass. House Jour. 1767–1768, p. 198–199. Boston Gazette, 29 Feb. 1768, p. 2, col. 2. See American Commissioners to Lords of Treasury, 28 March 1768, PRO, Treas. 1:465, fols. 363–364.
20. See Minutes of Commissioners, 7 March 1768, PRO, Treas. 1:471, fol. 159; Boston Gazette, 14 March 1768, p. 3, col. 1; Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fols. 364–365. Compare Hutchinson to ——, Dec. 1769, 26 Mass. Arch. 417, 418. Temple did not dissent from Folger's dismissal, but on 10 May 1768, he wrote a testimonial for him. PRO, Treas. 1:465, fols. 248–250. There was a specific prohibition against engaging in trade and an injunction to report any such activity by inferior officers in the Collector's instructions. Instructions by the Commissioners 6 (1764). Most of Temple's other appointees were reappointed. See note 1878 below. As late as 12 March the Commissioners were willing to offer Folger a settlement. Minutes of the Commissioners, 12 March 1768, 7 Bowdoin-Temple MSS 153, MHi.
21. Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768. See Rowe, Letters and Diary 157, 158. Interrogatories on Folger's behalf were served on the Commissioners. After taking Fitch's advice, they directed him to except to the interrogatories. Minutes of the Commissioners, 24, 25 March 1768, 7 Bowdoin-Temple MSS 155–157, MHi. It is not known whether the exceptions were filed, or what the result was.
22. Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fol. 364.
23. The rule at common law in the United States in the 19th century was that a de facto officer was not entitled to compensation (except, perhaps, his expenses), even when he had acted in good faith. Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers §§331–334, 342 (Chicago, 1890). More recently some courts have allowed compensation, even where there is a rightful claimant, if the de facto officer has acted in good faith. Eugene McQuillin, The Law of Municipal Corporations, vol. 4, §12.181 (Chicago, 3d edn., 1949); Charles S. Rhyne, Municipal Law 145 (Washington, 1957).
24. See JA's argument, text at notes 2–640–44 below. The statutes, 25 Car. 2, c. 7, §3 (1673), and 7 & 8 Will. 3, c. 22, §11 (1696), which deal with the power of the English Commissioners over the colonial customs, are quoted in notes 1351, 1452, below. For the narrower question whether the Commissioners themselves were authorized to appoint under these Acts without warrant from the Treasury, see No. 50 at notes 3–8.
25. 13 & 14 Car. 2, c. 11, §15 (1662), quoted in note 22 below.
26. There was authority to this effect in the 18th century. See 16 Viner, Abridgment, tit. Officers and Offices, O. 4, pl. 7. For similar modern authority, see Mechem, Public Offices §407; 3 McQuillin, Municipal Corporations §§12.115, 12.121.
27. Vice Adm. Min. Bk., 12 Feb. 1768. See Harrison and Hallowell to Commissioners, 8 April 1768, PRO, Treas. 1:471, fol. 183.
28. Vice Adm. Min. Bk., 4 Feb., 12 Feb. 1768. See order of sale, Massachusetts Gazette, 15 April 1768, p. 3, col. 2. Andrews suggested that the Minute Book must be in error in recording that this appeal was to the High Court, because he believed that after 1766 Vice Admiralty appeals lay only to the Privy Council. Andrews, “Vice Admiralty Courts in the Colonies,” in Records of the Vice Admiralty Court of Rhode Island, 1716–1752 22 note (Washington, ed. Dorothy S. Towle, 1936). Subsequent research has disclosed that the High Court and the Privy Council continued to exercise concurrent jurisdiction in appeals, at least in cases under the Acts of Trade, after 1766. See Smith, Appeals to the Privy Council 191–192. A newspaper correspondent reported that “The first Civilian in this Kingdom has undertaken for Capt. Folgier in his Appeal from your [i.e. the Boston] Court of Admiralty; and it is expected that he will not only succeed in the appeal, but also have a handsome appointment.” Boston News-Letter, 12 Jan. 1769, p. 2, col. 2.
29. Rowe, Letters and Diary 173. Boston News-Letter, 25 Aug. 1768, p. 2, col. 3. Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fol. 365. Folger's memorial, received on 24 Nov. 1768, is found in id. at fols. 366–368. It was accompanied by Temple's testimonial, note 20 above.
30. American Commissioners to Treasury, 24 July 1769, PRO, Treas. 1:471, fols. 363–365. The reply was accompanied by much documentation, including statements of the customs officers, earlier letters from their records concerning the surveyor general's powers, and Auchmuty's opinion and decree (Doc. III). The documents, which have been heavily relied on in this account, are scattered throughout PRO, Treas. 1:465, 471. Folger returned to Massachusetts in April 1769. Massachusetts Gazette, 27 April 1769, p. 1, col. 3. In June he applied to the Commissioners for reinstatement, but action was deferred pending reply to the Memorial. Minutes of the Commissioners, 6, 20 June 1769, 7 Bowdoin-Temple MSS 180, MHi. Temple, who apparently saw the attack on Folger as an attack on himself, wrote at length to the Treasury in Folger's behalf, asserting the power of the surveyor general to appoint inferior officers and the legality of seizures made under such appointments. Temple to Bradshaw, 10 Aug. 1769, 7 Bowdoin-Temple MSS 18–27, MHi.
31. As to Folger's commercial activities, see notes 8, 29, above. For his appointment as Justice, see Whitmore, Mass. Civil List 148. The adventures of Folger and Nantucket from 1775 to 1795 are chronicled in Stackpole, Sea Hunters 66–144. See also Starbuck, History of Nantucket 206–259, 384–414. In 1785 Folger served again as a Representative to the General Court. Id. at 636. He was related to Benjamin Franklin and in 1771 provided him with a map of the Gulf Stream, upon which Franklin relied in later scientific writings. Id. at 374–375. For Folger's later contact with JA, see No. 58, note 9.

Docno: ADMS-05-02-02-0006-0003-0002

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Testimony1

Court of Vice Admiralty, Boston, March 1768

Folger vs. Tea
James Athern Esqr.
Joshua Gardiner.2 Folger has entered and cleared Vessell I am concerned in to and from London. Commonly reputed a Custom House Officer at Nantucket. Have seen a Plantation Certificate signed by him, the Governor and Peleg Gardiner Naval Officer.3
{ 158 }
Jno. Handcock Esqr.4 Cleared two Vessells that Deponent is concernd in for London, since the arrival of the Commissioners.5 And has acted in all Respects, with the Regard to my Navigation at Nantucket, as the officers of the Customs do here. Commonly reputed an officer of the Customs. I know of his Acting, by his clearing my Vessells. I cant say I ever saw a Clearance of his signing, or saw him sign one. I know of his Clearing my Vessells by the Consequences for that the Vessells were admitted to an Entry in London. And others here by the Officers here.
Thos. Gray. Dep. vide
Mr. Sheaf. Have seen Papers of his signing, as Searcher and preventive Officer at Nantucket. Coasting Clearances. I acted under Sir H. Frankland, as Deputy Collector for this Port, for some Years.6 Mr. Harrison the present Collector, wrote a Letter to Mr. Folger giving him Instructions about a Vessell with sugars at Nantucket.7
Captn. Partridge. Used [to] London Trade. Made many Voyages there. Papers are demanded of Us, on our Arrival by the Custom House Officers. Clearance from the Customs demanded. Once admitted to an Entry without producing my Clearance, but was soon sent for by the Clerk and told by the Clerk that he had done wrong, and that the Clearance was his only Security, for Entering me. Never { 159 } admitted upon Producing Manifest and Register, except in the above Instance.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. The deponent may have been the junior partner in Folger & Gardner, Folger's whale oil business. See sources in note 8 above.
3. The term “Plantation Certificate” may here refer to the certificate of registry, required for every vessel by the statute 7 & 8 Will. 3, c. 22, §§17, 18 (1696), in which the governor and collector attested that oath of the vessel's place of construction and ownership had been made by the master or owner before them. Although there was no requirement that the naval officer join in this procedure, that official was the governor's appointee charged with general responsibility for maritime matters and oath was often actually taken before him, the governor's name probably being affixed to certificates in blank beforehand. See Register of the Lusanna, 28 June 1773, cited in No. 58, note 16; compare 3 Hutchinson, Massachusetts Bay, ed. Mayo, 311–312; Instructions by the Commissioners, Form I (1764). As to the naval officer, see generally, 4 Andrews, Colonial Period 187–189. It is perhaps more likely that the reference is to one of the certificates that bond had been given or other export requirements complied with, issued as part of the vessel's clearance. 7 & 8 Will. 3, c. 22, §13; 4 Geo. 3, c. 15, §24 (1764). The term seems to have been so used on occasion. See Instructions by the Commissioners for Managing and Causing to Be Levyed and Collected His Majesty's Customs, Subsidies, and other Duties in England, to [] who is established Collector of His Majesty's Customs at [] in America 13 (London, ca. 1733). The signature of the governor was required only on the certificates attesting that pig iron, hemp and flax, and hewn timber were the produce of the colonies. 23 Geo. 2, c. 29, §5 (1750); 4 Geo. 3, c. 26, §3 (1764); 5 Geo. 3, c. 45, §2 (1765); Instructions by the Commissioners, Forms XXVII, XXIX (1764). In the more usual certificates the collector and naval officer alone seem to have signed. See certificates of the Lusanna, cited in No. 58, note 17; compare certificates of the Rebecca, Pensacola, 28 Feb. 1765, SF 101107.
4. For Hancock's business relations with Folger, see note 8 above.
5. The American Board of Customs Commissioners, who landed on 5 Nov. 1767 and took office on 16 November. See text and note 14 above.
6. William Sheaffe (1706–1771), Harvard 1723, a familiar figure in the Boston customs office since 1731. Not only had he served as Frankland's deputy, but after the latter's dismissal in 1759 he acted as collector until Benjamin Barons was appointed to the post by the English Commissioners. In Jan. 1762, in the aftermath of Barons' dismissal (note 644 below), Sheaffe was again made acting collector, this time by John Temple. This tenure was also brief, Roger Hale taking office under an appointment from the Commissioners in July. Sheaffe served as deputy to both Hale and his successor, Joseph Harrison. He was also appointed a port waiter by Temple sometime before Oct. 1766 and was acting in both capacities at the time of this proceeding. In 1769, he was placed upon the establishment as an “Officer of the Customs,” and remained deputy collector until his death. See Quincy, Reports (Appendix) 424–429; Stark, Loyalists of Mass. 439; Wolkins, “Boston Customs District,” 58 MHS, Procs. 431, 436; PRO, Treas. 1:471, fol. 161, 461–463; 7 Sibley-Shipton, Harvard Graduates 253.
7. Perhaps a reference to an episode in April 1767 in which Folger sought to collect the duties on a vessel arrived at Nantucket from the Spanish sugar port of Monti Christi, which had not entered at Boston. When Harrison asked Temple for guidance, the latter replied,
“Capt. Folger has no Authority to Enter or clear any Goods that are Dutiable and the Vessel he mentions I think ought to be Entered at Boston before anything is discharged; after she is so Entered, I have no objection to her unloading at Nantucket under the Inspection of Mr. Folger, or if you think necessary send an Officer from Boston to inspect her unlading, which Officer they must pay.” Letters of Harrison and Temple, both dated 13 April 1767, PRO, Treas. 1:471, fols. 185, 188.

Docno: ADMS-05-02-02-0006-0003-0003

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Argument1

Court of Vice Admiralty, Boston, March 1768

Folger vs. Hallowell.
The Affairs and Transactions of the Customs and Revenue, are very loose. Customs and Duties and subsidies, have from Time to Time been granted by Parliament to his Majesty and the Collection and Management of them has been committed by Parliament to his Majesty, in short the Crown seems to have been entrusted with a discretionary Power <by the Parli> of appointing as many Sorts of Officers and as many in Number, as are or shall be thought convenient. We hear of Surveyors, Collectors, Searchers, and Comptrollers but there is not any act of Parliament, which describes and limits their Provinces and Powers.2
Compare the Commission of the Commissioners with the Act of Parliament on which it is grounded. How small the Foundation! How mighty the super Structure! Are there no Powers in the Commission which are not pointed out in the Act?3
{ 160 }
Compare the Act that empowers the King to constitute Commissioners at Home, with the Powers exercisd by them,4 and by the late Surveyors General as Representatives of them.5 The Commission empowers to suspend, and remove &c. Does the Act of Parliament enable the K. to give such Powers to Commissioners?
Where did Mr. Lechmere get his Authority to suspend Mr. Barons as Collector of this Port? He claimed an Authority, and exercised it of suspending.6 Yet there is no Act of Parliament in the whole Statute Book, that enables the K. or Commissioners of Customs or any Body else to create such an officer as Surveyor General.
Folgiers Commission. Preventive officer. In my behalf.7 All Temples { 161 } Authority ceased, on Arrival of Commissioners. Made vs. Claimers.8 Exclusion of officers and [their?] dues.9
Reputation and Exercise sufficient. 6. G. 1, c. 21, §24.10 11. G. 1, c. 30, §32.11
{ 162 }
Continuance of Deputations &c. after Death of Commissioners. 12. Ann. St. 2, c. 8, §13.12
Comrs. of Customs. 25th. Car. 2, Chap. 7 §3.13
Comrs. of Customs and Lds. of Treasury to appoint officers. 7. & 8. W. 3. Chapt. 22§11.14
{ 163 }
7. G. 3d15
Mr. Otis. Admitted an officer De Facto, and therfore have given up their Cause. Distinction between King De Jure and De Facto.16 Maxim officers to be favoured.
Viners Abridgment Tit. Officers, and Offices G, Plea 2. Keeper of Goal De Facto, and De Jure.17 Mayor De Facto.18 G. 4, Plea 2. All Judicial Acts shall be good.19Colour of Election all Judicial and Ministerial Acts good.20
{ 164 }
Evidence that he was in Fact an officer, an officer De Facto.
If it should appear that the King was deceived21 in his Grant and issued a Commission to the Commissioners that was void, would it be pretended that all their Acts and Orders through the Continent were void? No. Their Reputation And Exercise, sufficient to make their Acts and orders good.
All the Officers Comptrollers, Searchers Inspectors and even Commissioners them selves are only Preventive officers, none of them are to collect his Majesty's Duties.
Wonderfull Parenthesis (in my Behalf).22 These Words cant make Folger a Deputy, merely Surplussage, currente Calamo, and may go out again without injuring the Commission.
If not rejected as surplusage, yet capable of several Constructions that will not vitiate or render void the Commission.
Whether the Surveyor General had, and the Commissioners have a Power to dismember a Port, or to make any Alterations in a Port, Yet if they will undertake to do it, it must be good till set aside by superiour Authority.
Lechmere went to England and appointed Coll. Brinley his Deputy in his Absence, and many of the officers got him to allow them salaries &c. Wages, Fees or some thing that they never could get before, and particularly the present Commissioner Paxton got a large sum at that Time.23
{ 165 }
A Deputy Sherriff would be liable to an Action if he should act after the death of his Principal, but this is not the Case of the Custom House officers. Their Deputations or other Authorities, are not nullified by the Demise of the Crown, any more than the Judges.24
2 Lev. 131. 10. Co.——.25
Sewall. General Question, whether Mr. Folger had any Authority to make the Seizure.
The supposition of his having another Commission besides this from Temple.
Q. whether I have not offered such Evidence of his Having no Authority, as shall oblige Folger to produce <his> some other Commission.
The Act of 6. G. 1, c. 21, §24.26 intended for the security of the Officers and off the Revenue. It is inconsistent with Common sense to suppose that the Legislature had any such Case in View, as this before your Honour.
This Act not extended to America.
I believe there is no Bottom to this Affair of the Customs.
By fair Contract the officers entituled to all the Fees within Their District.27
{ 166 }
In my Behalf, intended to make him Deputy, not to make a new office or officer. No Person can make a Deputy but the Principal. No Surveyor General can make a Deputy Collector, any more than I, as Advocate can make a Deputy Judge of Admiralty, or than your Honour can make Deputy Advocate General.
Surveyor and Searcher.28
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The first four paragraphs seem to be JA's notes for an argument that in the absence of specific statutory language an officer's authority was to be found in his commission or in customary practice. See the statutes in notes 1351 and 1452, below. Compare note 1 above. The notes were probably written out at leisure before Sewall's argument, which ensues.
2. See note 1 above.
3. Presumably the American Board of Customs Commissioners, notes 10, 14, above. The act authorizing their positions provided that the customs in the plantations might “be put under the management and direction of such commissioners, to reside in the said plantations, as his Majesty, his heirs, and successors, by his or their commission or commissions under the great seal of Great Britain, shall judge to be most for the advantage of trade, and security of the revenue of the said British colonies.” The commissioners, “or any three or more of them,” were to “have the same powers and authorities for carrying into execution the several laws relating to the revenues and trade” of the colonies as other acts gave to the English commissioners, and it was to be lawful for the King “in such commission or commissions, to make provision for putting in execution the several laws relating to the customs and trade of the said British colonies.” 7 Geo. 3, c. 41, §§1, 2 (1767). Their commission, which is set out in Book of Commissions, 1677–1774, fols. 83–92, M-Ar, was detailed, providing not only the general powers conveyed by the Act, but power to appoint and suspend inferior officers (see No. 50, note 15); power to apply the funds collected to rewards and salaries; power to administer oaths, to enter and search vessels and buildings, to compound forfeitures, to compel obedience from inferior officers and assistance from other officials; and authority to oversee the accounts of the entire system. In addition the Commissioners were granted salaries, were relieved of liability for the defaults of inferior officers, and were freed from obligations for jury service and other local offices. Part of the text is quoted in No. 50, notes 15, 16.
4. The English Customs Commissioners were first appointed by royal patent in 1671 and seem to have functioned by that authority until the passage of 9 Geo. 1, c. 21, §1 (1722), which, to remedy a defect in the Act of Union with Scotland of 1707, provided that
“the customs and other duties, now under the management of the several and respective commissioners of the customs of England and Scotland, shall and may be put under the management of one commission of the customs for the whole united kingdom, or under the management of several commissions of the customs for England and Scotland respectively, from time to time, as his Majesty shall judge to be most for the advantage of trade and security of his revenues.”
The Act also made it lawful for the King “in such commission or commissions to make provision for putting in execution the several laws relating to the customs.” id. §2. See Hoon, English Customs 56–57. The very extensive powers actually granted in the commissioners' patents, including the appointment and dismissal of inferior officers, are summarized in id. at 59–60. For their authority over the colonial customs, see notes 1351, 1452, below.
5. That is, John Temple and the surveyors general for the other continental districts, whose commissions were revoked upon the appointment of the American Board of Customs Commissioners. See note 10 above. For their powers, see text at note 2 above.
6. Benjamin Barons, appointed Collector in 1759, was already on bad terms with the rest of the customs establishment, and sought to turn the system to his own profit by allying himself with the Boston merchants. In June 1761 he was dismissed by Thomas Lechmere, the Surveyor General, on charges of interfering with the Admiralty courts and the customs officers; he was not reinstated, despite the appeals of the merchants and the tacit support of Temple, who succeeded Lechmere in the midst of the squabble. See notes 5, 637, above. The dispute produced extensive litigation, including the case of the writs of assistance (No. 44), and the cases of Gray v. Paxton and Erving v. Cradock. Quincy, Reports (Appendix) 425–426, 541–557. See generally Barrow, Colonial Customs 262, 352–360; see also No. 44, note 21. As to the Surveyor General's power to suspend and appoint, see note 1177 below.
7. The text of Folger's commission, dated at Boston, 17 Aug. 1764, and signed by Temple, is as follows:
“To all People to whom these presents shall come, Know ye, That I the Surveyor General of his Majesty's Customs in the Northern District of America, By Vertue of the Power and Authority to me given, Do hereby appoint Timothy Folger to be Searcher and preventive Officer in his Majesty's Customs at the Island of Nantucket in the Province of Massachusetts Bay and by Vertue of these presents he hath Power to enter any Ship, Bottom, Boat, or any other Vessel, as also into any Shop, House, Warehouse, Hostry, or other Place whatsoever, to make diligent Search into any Trunk, Chest, Pack, Case, Truss, or any other Parcel or Package whatsoever, for any Goods, Wares or Merchandize, prohibited to be Imported or Exported, or whereof the Customs or other Duties have not been duly paid, and the same to Seize (in my behalf) to his Majesty's Use, and also put in Execution all other the lawful Powers and Authorities for discharging the Trust reposed in him as an Officer of the Customs In all things proceeding as the Law directs; Hereby praying and requiring all Officers both Civil and Military In the Province of the Massachusetts Bay to be aiding and assisting to him the said Timothy Folger in all things as becometh.” Book of Commissions, 1677–1774, fol. 39, M-Ar.
Folger took the necessary oaths before Governor Bernard on 18 August. Ibid.
8. Probably an argument by Sewall that Folger's defenses under the Acts of 6 and 11 Geo. 1, notes 1048, 1149, below, might properly have been made against parties claiming the vessel, but were not valid against other royal officials. Compare Auchmuty's opinion, text following note 571 below.
9. The reference is not clear. The phrase may simply echo the thought expressed in text at note 2765 below, or it may refer to the practice of exempting customs officers from local obligations such as the payment of provincial taxes, jury duty, and military service. See note 341 above. See the complaint of the Commissioners to the Lords of the Treasury that the Province assessors were seeking to levy on their salaries, 27 July 1769, PRO, Treas. 1:471, fols. 459–460; see also 4 Andrews, Colonial Period 204.
There follows a gap of half a page in the MS. The materials which follow in text through note 53 were probably JA's notes for his own argument.
10. 6 Geo. 1, c. 21, §24 (1719), provided that
“if upon trial or trials of or in any information, action, suit or prosecution whatsoever relating to his Majesty's duties of customs and excise, or to either of them, or to any other his duties whatsoever, or to any seizure or seizures, penalty or penalties, forfeiture or forfeitures, relating to the said duties, or any of them, or if upon any trial or trials of or in any action, suit or prosecution whatsoever against any person or persons, for anything done by virtue or in pursuance of any act or acts of parliament relating to the said duties, any or either of them, any question or questions shall be made, or any doubt or doubts, dispute or disputes, shall arise or happen, touching or concerning the keeping of any office or offices of excise in any city or cities, town or towns, or touching or concerning any one or more defendants being an officer or officers of or for the said duties, any or either of them, that in every such case and cases proof shall and may be made, or evidence given, either of the actual keeping of such office or offices of excise in such city or cities, town or towns, or of such one or more defendants actually exercising of and being employed and intrusted in such office or offices respectively, before and at the respective time and times when the matter or matters in question upon such trial or trials shall happen to have been done or committed, or omitted, or neglected to have been done or performed, without producing any particular person or persons to prove the names of the particular and respective commissioners to any commissions in the respective cases before-mentioned, any or either of them, to be of their own hand-writing; and that in every such case and cases respectively such proof and evidence shall be deemed and taken to be legal and sufficient evidence, unless or until by other evidence the contrary shall or do appear.”
11. 11 Geo. 1, c. 30, §32 (1724), simplified the language and clarified the coverage and procedure of the Act of 6 Geo. 1, note 1048 above. After reciting the failure of the earlier act, it provided that if, in the same categories of actions, as well as
“upon the trial of any information or indictment for assaulting, resisting or obstructing any officer or officers of the customs, excise or duties upon salt, or other duties due and payable to his Majesty, in the execution of his or their respective office or offices, or for rescuing any goods or merchandizes seized or to be seized by any such officer or officers; any question shall arise, whether any person be an officer of his Majesty, his heirs or successors, of or for any of the said duties: in every of the said cases, proof shall and may be made and admitted, that such person was reputed to be and had acted in, and in fact exercised such office, and at the respective time and times, when the matter or matters in controversy upon such trial or trials shall happen to have been done or committed, or omitted to have been done or performed, without producing or proving the particular commission, deputation, or other authority, whereby such officer was constituted and appointed, and that in every such case such proof shall be deemed and taken by the judges or justices before whom any such trial shall be had, to be good and legal evidence, unless by other evidence the contrary shall be made to appear; any law or usage to the contrary hereof notwithstanding.”
12. 12 Anne, Stat. 2, c. 8, §13 (1713), continued by 5 Geo. 1, c. 7 (1718), provided that all “collectors, surveyors, or other inferior officers” appointed by the Commissioners of the Customs “shall be deemed to remain and continue in their respective offices and imployments, notwithstanding the death or removal of any of the commissioners of the customs who deputed and appointed such officers, until the deputations of such officers respectively shall be by the said commissioners, or any other superior authority, revoked, annulled, or made void.”
13. An undated MS copy of this section in JA's hand reads:
“And for the better Collection of the several Rates and Duties aforesaid imposed by this Act, be it enacted and it is hereby further enacted by the Authority aforesaid, that this whole Business shall be ordered and managed, and the several Duties hereby imposed shall be caused to be levyed by the Commissioners of the Customs in England now and for the Time being, by and under the Authority and Directions of the Lord Treasurer of England or Commissioners of the Treasury for the Time being.” Adams Papers, Microfilms, Reel No. 185.
The section is part of the Act of 1673 which first imposed duties to be collected in the colonies; it served as the basis for the first organized establishment of a colonial customs service, although isolated officials had been sent out before. See A. Berriedale Keith, Constitutional History of the First British Empire 76 (Oxford, 1930); Barrow, Colonial Customs 37–41.
14. An undated MS copy of the relevant portion of this section in JA's hand reads:
“And for the better executing the several Acts of Parliament relating to the Plantation Trade, be it enacted, that the Ld. Treasurer, Commissioners of the Treasury, and the Commissioners of the Customs in England for the Time being, shall and may constitute and appoint such and so many officers of the Customs in any City, Town, River, Port, Harbour, or Creek, of or belonging to any of the Islands Tracts of Land and Properties, when and as often as to them shall seem needfull.” Adams Papers, Microfilms, Reel No. 185.
This statute, passed in 1696, consolidated and defined the authority of the colonial customs service, gave its officers the powers and duties of their English counterparts, and facilitated placing them upon the English establishment. See Barrow, Colonial Customs 118–130, 133–136; 4 Andrews, Colonial Period 163–165, 213–215; No. 44.
15. Presumably a reference to 7 Geo. 3, c. 41, §3 (1767), which provided that
“all deputations, and other authorities, granted by the commissioners of the customs in England before the passing of this act, or which may be granted by them before any commission or commissions shall issue in pursuance of this act, to any officer or officers acting in the said colonies or plantations, shall continue in force as fully, to all intents and purposes, as if this act had not been made, until the deputations or other authorities, so granted to such officer or officers respectively, shall be revoked, annulled, or made void, by the high treasurer of Great Britain, or commissioners of the treasury for the time being.”
See Auchmuty's discussion of this point, text at note 1979 below.
16. According to Blackstone, when Edward IV assumed the throne,
“after a breach of succession that continued for three descents, and above threescore years, the distinction of a king de jure, and a king de facto began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to disherison of the rightful heir.”
1 Blackstone, Commentaries *204; see also 4 id. at *77–78; compare 1 Hale, Pleas of the Crown 101–103 notes. If Otis here referred to Blackstone's formulation, he was on treacherous ground, since the doctrine seems intended to protect those who had relied upon a usurper, but not to support the claims of the usurper against those of the rightful “heir”—in this case the de jure officers.
17. “The Words Sheriff, Gaoler, &c. in the Statute 13 E. 1. cap. 11. extend to all Keepers of Gaols; and therefore if one hath the keeping of a Gaol by Wrong or De facto, and suffers an Escape, he is within this Statute as much as he that has the keeping of it De Jure. 2 Inst. 381, 382.” 16 Viner, Abridgment, tit. [Officers and] Offices, G. 3, pl. 2.
18. “An Action will lie against a Mayor de Facto for a false Return upon a Writ of Mandamus. Lutw. 519. Trin. 6 W. & M. in Case of Knight v. the Corporation of Wells.” 16 Viner, Abridgment, tit. [Officers and] Offices, G. 3, pl. 3.
“Acts done by an Officer De Facto, and not De Jure, are good; As if one being created Bishop, the former Bishop not being deprived or removed, admits one to a Benefice upon a Presentation, or collates by lapse, these are good and not avoidable. Arg. Quod Curia Concessit; for the Law favours Acts of one in a reputed Authority, and the inferior shall never inquire if his Authority be lawful. Cro. E. 699. Mich. 41 & 42 Eliz. B.R. in Case of Harris v. Jays. [In the margin:] S.P. Where the Bishop De Facto made a Lease which was confirmed by the Dean and Chapter, and after the Bishop De Jure died in the Life of the Bishop De Facto; it was resolved, that he not being lawful Bishop, and this Lease being to charge the Possessions of the Bishoprick, it is void; altho' all Judicial Acts, as Admissions, Institutions, Certificates, &c. shall be good; but not such voluntary Acts as tend to the Depauperation of the Successor, and so affirmed a Judgement given in B.R. in Ireland. Cro. J. 552, 554. Reuan Obrian & al. v. Knivan.” 16 Viner, Abridgment, tit. [Officers and] Offices, G. 4, pl. 2.
“If one is elected Mayor of a Corporation without being duly qualified according to a late Charter, to be chose into that Office, and after such Election he puts the Seal of the Corporation to a Bond, this Obligation is good: For by his coming into the Office by Colour of an Election, he was thereby Mayor De Facto, and all Judicial and Ministerial Acts done by him are good; and tho' the Corporation might have removed and displaced him, yet this not being done he had Power to seal the Bond. Lutw. 508. 519. Trin. 6 W. & M. Knight v. the Corporation of Wells.” 16 Viner, Abridgment, tit. [Officers and] Offices, G. 4, pl. 3.
21. For this usage, see No. 55, note 814.
22. That is, the parenthetical phrase in Folger's commission, note 745 above. Otis had earlier had to defend this phrase in a coffeehouse gathering when William Molineux, the radical leader, attacked Temple and Folger, asserting that the latter had been appointed only to provide profit for the former. When a question was raised as to the validity of Folger's commission,
“Mr. Otis said the commission, he thought, was very Good, but that there was one Expression in it that some People Hesitated about and Repeated the Sentence in the Commission which Runs thus—and in my Behalf to seize for his Majesty's Use—Upon repeating of this Sentence Mr. Mollineux [said] 'Now Gentlemen, you see that I am Right in what I said,' and seemed to lay great Stress upon these words—in my Behalf—signifying that whatever seizures were made by Folger, he, the said Folger, was not to have the profit arising from such seizures but the Surveyor General and that the Surveyor General gave him his Commission on these terms.” Rowe, Letters and Diary 150–151 (11 Feb. 1768).
The commissions which Temple gave to Edward Winslow as deputy collector at Plymouth and James McCobb as searcher and preventive officer at Kennebec omitted the phrase. Book of Commissions, 1677–1774, fols. 44–45, 48, M-Ar.
23. Further documentation of this incident has not been found. Brinley was undoubtedly Col. Thomas Brinley (d. 1765), a leading resident of Roxbury, whose son, Thomas, Harvard 1744, was a loyalist who fled to Halifax in 1776. 11 Sibley-Shipton, Harvard Graduates 366–367. Since Lechmere should have obtained permission from England for his trip and the appointment of a deputy, it is possible that Brinley was acting with the sanction of the Commissioners. See Barrow, Colonial Customs 296–298.
24. By statute every “office or employment, civil or military,” was continued for six months after the death of the sovereign, unless revoked by the successor. 1 Anne, stat. 1, c. 8, §2 (1701). A requirement subsequently imposed by 6 Anne, c. 7, §18 (1707), that all such officers take a new oath before continuing in office was replaced by 1 Geo. 2, c. 5, §2 (1727), and id., stat. 2, c. 23, §7 (1728). See Samuel Baldwin, A Survey of the British Customs, part 2, p. 195 (London, 1770). Compare 12 Anne, stat. 2, c. 8, §13, note1250 above.
25. Otto v. Selwin, 2 Lev. 131, 83 Eng. Rep. 483 (K.B. 1675), citing The Case of the Marshalsea, 10 Co. Rep. 68b, 77 Eng. Rep. 1027 (C.P. 1612). Otto held, per Hale, C.J., that an officer of the Court of Admiralty, pleading the warrant of that court in justification in an action of trespass and false imprisonment against him, need not plead and prove that the Admiralty had jurisdiction of the original cause. The Case of the Marshalsea had held that the warrant of a court lacking jurisdiction of the cause was not a defense in an action of false imprisonment; Hale distinguished that case on the ground that the lack of jurisdiction had there appeared (it was in fact conceded arguendo). Otis seems to be citing Otto for the proposition that when the actions of an officer are justified by a document regular on its face, the burden of proving an underlying irregularity lies with the opposing party.
26. Note 1048 above.
27. That is, the officers appointed by the English Customs Commissioners are entitled to all the fees without competition from officers appointed by other sources. See text and note 4 above.
28. The MS breaks off here and the reference is unexplained. The office of Surveyor and Searcher is described in note 1 above. George Lyde, the incumbent, had accompanied Hallowell in reseizing the Cornelia and was a party to the action. See text at note 17 above.

Docno: ADMS-05-02-02-0006-0003-0004

Author: Auchmuty, Robert
Date: 1768-04-02

Auchmuty's Opinion and Decree1

Court of Vice Admiralty, Boston, 2 April 1768

Timothy Folger vs. Sloop Cornelia and Eighteen Casks Tea. On this information the Advocate general in behalf of the King intervened.
In determining this cause, I shall consider the matters on each side of the question principally relied on by the Gentlemen in their arguments and much in the same order as proposed.
The Advocate general in behalf of the King urged, that none but the Officers of the Customs could seize in cases similar to this, relying on the 14 Car. 2d. for this point.2 That the informer, who in the information, calls himself searcher and preventive Officer in the Island of Nantuckett never was an Officer of the Customs, and that granting he was, his Authority ceased on the commissioners of the Customs in North America entering upon the Execution of their Office. Because the Informer was authorized and appointed, as by an authenticated copy of his Commission exhibited by the said advocate appears, by the { 167 } Honble. John Temple Esqr. late surveyor general of the northern district; whose office was entirely vacated and made void by the said commissioners executing their said Office, which was prior to the seizure set fourth in said Information. That the three known principal officers of the Customs in the port of Boston, of which the said island of Nantuckett is a member, had seized and informed against the same vessel and goods which information was pending in this Court; wherefore on his Majesty's behalf said advocate prayed that the libel of the said informer might be dismissed unless he could shew his authority to seize.
To all which it was answer'd by James Otis and John Adams Esqrs. advocates for the informer, first that he was not held to produce any commission to authorize him to make or hold said seizure, because it was sufficient to prove himself a reputed Officer of the Customs, by acting as such at the time of seizing. To support which the statutes of the 6 Geo. 1 and the 11. of the same reign were produced.3 Secondly, that considering the exhibits, proofs and Advocate's concession in the case, it evidently appeared, the Informer was either an Officer of the Customs de facto, or de jure or both. If the latter a right of seizing must undoubtedly have been in him. If only the informer,4 yet even by the rules of the common law, without the aid of the Statutes, it was sufficient. Thirdly, that the Informer was an Officer de jure by his commission from the said late surveyor general, produced by the advocate and by the Court allowed to be filed as evidence and lastly, that the Authority granted by said commission did not cease on the Surveyor generals office being vacated by the appointment of the Commissioners of the customs in North America, and their Executing their office. To prove which the 12. Ann. and the 7. Geo. 3. were cited and relied on.5
The force and operation of the two statutes of Geo. 1. must be considered in order to determine whether the same comprehend the present case, Those were formed to guard the revenue, by protecting the real Officers thereof against certain inconveniences. A construction therefore of the statutes different from that design or exceeding such Inconveniences must be erroneous: In the first act by the perview which immediately relates to the section under consideration it clearly appears, the mischiefs intended to be remedied were, the trouble and expence Officers were necessarily at in procuring the condemnation of { 168 } Goods seized, and in consequence thereof the enacting part enables officers to give proof of their actually exercising and being imployed and entrusted in an Office, without producing evidence to prove the names of the Commissioners to any Commission to be their hand writing. But there are only two Cases in which such proof of reputation is Admissible, First, when the trial is between the Officer seizing and the Claimer. Secondly when the Officer is prosecuted for any thing done by virtue of any act relating to duties. If therefore the present dispute is not such an instance as is pointed out by the Act, it cannot be within it Because this Act, which is enlarged by the 11. Geo. 1. but for the same purposes, gives a remedy not known at common law, in particular cases. Therefore by the rules of law relative to the constructions of Acts, such remedies cannot be extended to alter the Common law in any others than those particular instances mentioned in the Act. This rule is founded on the deference always justly paid to the common law by the Judges in construing statutes and by which the common law is preserved from Constructive innovations. It is indisputable that the present controversy is not a Trial between an Officer and Claimer, or a civil action or other process brought against an Officer by a Subject, but a litigation founded on the intervention of the Kings Advocate in behalf of his Majesty, The point is now between the King and one who claims to be an Officer of the Customs under his Majesty: therefore to extend the said Acts or either of them to such a case would be both absurd and illegal. Illegal, because by so construing the Act, the King himself would be thereby affected, tho' not mentioned therein, and tho' considering the nature and tendency of the Act, he cannot consistently with the rules of law, be constructively included. Absurd because it would be foreclosing his Majesty from whom all the powers of Officers mediately or immediately flow from trying whether one asserting to be his Officer was so, and notwithstanding the admission of such an enquiry, it appears to me, the letter as well as the spirit of the Acts will be preserved entire; and so no reason presents why it should not be granted. I am sensible, it is objected that the trial now is founded on an information, and relates to a seizure, and from thence concluded to be within the express words of the Acts. To this it may be answered, that those Acts are not to be construed by the different modes of prosecution therein enumerated, nor by the general expressions pointing out the causes of such prosecutions; but by the mischeifs intended to be remedied, and not guarded against by the common law, and therefore, tho' a Case in one sense may depend on a seizure and information, yet if none of the mischeifs mentioned { 169 } in and designed to be redressed by said acts, attend it, the law will not adjudge such a Case to be within the Acts. It is an established rule that tho' a Case be within the letter of an Act, if not within the real meaning thereof, it cannot be included therein, A construction different from that I have given would make said Acts productive of a very great repugnancy, by forcing the same to operate in favour of persons, without an enquiry whether they were or were not properly Officers of the Crown to the prejudice of others duly appointed, for the protection and advantage of whom said statutes most undoubtedly were designed. And lastly, that by the duly authenticated Copy of the Informers commission exhibited by the Advocate, evidence appears to the contrary of the informers being an Officer of right at the time of making the seizure, as far as a negative can. The reservation in the Acts made in these Words, “unless by other Evidence the contrary shall be made to appear,” entitles even a claimer, a fortiori his Majesty, to prove if he can; that the Officer seizing, notwithstanding his being reputed and acting as such, really was not, otherwise the statutes are justly chargable with one of the greatest irregularities known in the law, in preferring the lowest kind of evidence to the highest. To support the words “other evidence to the contrary” intend to confine the evidence to a persons being an Officer de facto, in exclusion of an enquiry if one de jure, must render the Acts totally ridiculous. Because when once the fact of his being an Officer de facto is established by positive evidence, it must be impossible negatively to prove the contrary. In short, tho' the acts give great releif to Officers even claimers are not by force thereof left remediless, nor do the Acts place persons proving their reputation as Officers absolutely beyond the inspection and reach of law. But the burthen of Strict legal proof is by force of the same acts removed from the Officer, in certain Cases; and if the Claimer or prosecutor would avail himself against the proof resulting from reputation, he is obliged to produce legal evidence, that notwithstanding such reputation the person seizing either was never commissioned, or if he was, the authority thereby conferred was determined, or he had exceeded his Authority. Therefore I do adjudge and decree, that said Acts are not sufficient to authorize the informer to prosecute said information without shewing a further right so to do.
I shall next determine what influence the rules of the common law touching Officers de facto ought to have in this cause.
Those rules appear to me to be calculated only to make such as presume to act as Marshall or Mayor &c. without being completely qualified, answerable for their own misconduct, in cases where the Interest { 170 } of others is concerned, but not to extend to such as immediately tend to their own private advantage.6 They are institutions to prevent mischeifs happening to some, through an undue exercise of power by others, rather than to give a sanction to it for the sole benefit of the Actors. It is but just that he who undertakes as a publick Officer the Execution of any thing without a full Authority for so doing, and of which he is to be the judge in the first instance, and does it in such a manner as renders another a sufferer, should be adjudged accountable therefor. But It by no means follows that such an undertaker should advance his own Interest by his own wrong Act, in direct opposition to the legal Officer: Therefore the law cases above alluded to and the one in trial materially differ from each other. Also the cases of the parson and bishop appear to me not applicable to the present dispute, for the same and other reasons.7 In both the latter instances their acts which may be considered as judicial, are allowed good for the benefit of others their inferiours in the law sense and so not obliged to know the legality of the induction of the parson, or the deprivation or removal of the Bishop; Where a Bishop de facto does an act which charges the possession of the bishoprick, as a lease of lands, it is void.8 The true reason of which I take to be, he shall not by any act advance his own private interest, and thereby deprive an Officer de jure of his. This case is more applicable to the present dispute than any of the others. And indeed without observing this rule all distinction between Officers de facto and de jure must cease. But to close this subject the very making of the acts9 evidently shew that at common law, Officers of the Customs could not be sufficiently guarded by proving themselves such de facto: then consequently none of those rules abstractedly were able to support the doings of such an Officer, even when the contest was not between him and the King, but a Claimer. So that tho' by the Exhibits in the case it is both proved and granted that the informer was { 171 } an Officer de facto, yet as the Statutes allow of proof being made against his being one de jure, and the common law does not avail him in this point, I am next to enquire what proof there is of his being the latter.
The proof of this point arises out of his Commission and the Authority of the late surveyor general to grant the same. It is certain the informer was by said commission created, if any thing, either a New Officer, or deputy surveyor general. It could not be a deputation as searcher and preventive Officer, if there had been any such Office known, because the surveyor general could not make a deputy to another Officer, that power being lodged only in the principal. As to the first, considering that the Island of Nantuckett is a member of the port of Boston, it is necessary to examine whether the late surveyor general had any authority, without positive orders or instructions from the Commissioners of the Customs in England under the direction of the Commissioners of the treasury to create new Officers, when there were proper Officers of the port duly commissioned and acting; and secondly if not, whether by the said Commission the Informer was deputy surveyor general.
As the statute did confine the appointment of the Officers of the Customs to the Lord treasurer Commissioners of the treasury and Commissioners of the Customs in England for the time being,10 it is impossible that any surveyor general could legally appoint or create new Offices and Officers without an authority for so doing from those who by the law had that power. It was said in the argument, that the late surveyor general had equal authority with the Commissioners of the Customs in England but it was neither attempted or possible to be proved on an inspection of his instructions as far as relate to this enquiery and consideration thereof.11 I do not perceive any thing which { 172 } proves or has a tendency to prove a power in him to create new Offices or Officers. His power of suspending for misbehavior, and appointing others in the places of the persons so suspended or of such as decease by no means can be extended to create new officers ad libitum. The former is a contracted and limitted power, and was usually lodged with all surveyor generals by the Commissioners of the Customs, and founded in necessity. The latter comprehends almost all the powers of both the Commissioners of the treasury and Customs and it is not to be supposed they ever delegated such Authority to any person whatsoever, there being neither necessity or law for so doing. It was urged in favor of such appointments of the Surveyor generals, that great inconveniences will follow if they are not adjudged valid, as many have been made, particularly one at Plymouth a member of this port.12 If the fact is so, of which there is no evidence excepting the instance at Plymouth, it ought not to regulate a judgment on the validity of such appointments, because that would be Establishing a practice not founded in law, in opposition to law. Nor can I conceive it the duty of [a] judge to depart from the law to cure inconveniences resulting from the misapprehensions of any other Officer, without something very express to warrant his so doing. Secondly if the late surveyor general had authority to appoint a deputy, which is very supposeable though not proved, it is clear he has not executed that power in the appointment of the informer, but attempted one entirely different, and therefore it is not a deputation as Surveyor general. These two points being determined makes a minute enquiry into the objection of the said commissions being superceded by the appointment of the Commissioners of the Customs in North America and { 173 } their exercise of that Office, needless; I shall therefore only say, that neither the statute of Ann, or of his present Majesty extend to any deputations save those granted by the Commissioners of the Customs in England.13 These acts also prove the legislature never conceived of or had in contemplation any other appointments then such as were made by the Commissioners of the Customs in England as aforesaid. If they had, doubtless the death and removal of surveyor generals would have been guarded against, as well as that of the commissioners. Those who made the last act must certainly have known, that the Office of surveyor general was merged in that of the Commissioners: therefore it is against reason to imagine, it was intended first to destroy the Office of principal, and secondly, to secure his deputys, or to extend the words of the proviso expressly mentioning certain Officers, to others probably not known, and if known, certainly not noticed. Therefore haveing fully heard the Kings Advocate and the Advocates for the informer and after a mature consideration of their arguments and of all the statutes and authoritys quoted and used, proofs allegations and exhibits adduced in the cause, I decree the information against the aforesaid sloop and tea filed by the said Timothy Folger to be dismissed.
[signed] Rob[ert] Auchmuty Judge
1. MS, endorsed: “Copy. Decree in the Court of Admiralty at Boston in the Case of Folger &ca. vs. Sloop Cornelia, and 18 Casks of Tea.” Subscribed: “A true copy. Att[estatu]r Ez. Price D. Regr.” PRO, Treas. 1:471, fols. 152–158 (photostats in DLC:British Reproductions).
2. 13 & 14 Car. 2, c. 11, §15 (1662) provided that no ship or goods were to be seized for violations of the Acts of Trade
“but by the person or persons who are or shall be appointed by his majesty to manage his customs, or officers of his majesty's customs for the time being, or such other person or persons as shall be deputed and authorized thereunto by warrant from the lord treasurer or under-treasurer, or by special commission from his majesty under the great or privy seal.”
Seizures by others were to be void. This section was presumably made applicable in the colonies by 7 & 8 Will. 3, c. 22, §7 (1696). It was interpreted strictly in England. See Hoon, English Customs 271–272.
3. Notes 1048, 1149, above.
4. Apparently an inadvertence for “former.”
5. Notes 1250, 1553, above.
6. A reference to the cases from Viner cited by Otis, notes 17–2055–58 above. At the same place in the Abridgment it is also stated, “He who occupies as Marshal in B.R. be he Officer of Right or by Tort, shall be charged with the Escapes. Br. Escape, pl. 18, cites 39 H. 6. 33.” 16 Viner, Abridgment, tit. [Officers and] Offices, G. 3, pl. 1.
7. The case of the parson is evidently the following passage in Viner not taken down by JA:
“Where an Abbot or Parson is inducted erroneously, and makes a Grant or Obligation, and after is deprived or dereigned for Precontract or such like, this shall bind; because he was an Abbot or Parson in Possession, but a Usurper who usurps before Installation, or Induction, or Presentation, where another Abbot or Parson is Rightfully in Possession, or if one enters, and occupies in the Time of Vacation without any Election or Presentation, the Deed of such is void. Br. Non est Factum, pl. 3, cites 9 H. 6. 32.” 16 Viner, Abridgment, tit. [Officers and] Offices, G. 4, pl. 1.
8. See note 1957 above.
9. The statutes of Geo. 1, notes 1048, 1149, above.
10. 7 & 8 Will. 3, c. 22, §11 (1696), note 1452 above. Compare No. 50.
11. Temple's instructions and commission have unfortunately not been found. For the powers of surveyors general, see note 2 above.
When Temple's predecessor, Thomas Lechmere, suspended Benjamin Barons in 1759 (prior to his dismissal in 1761, note 644 above), he appointed George Cradock temporary collector, relying on the powers given him by the Commissioners of Customs “for managing and causing to be levied and collected His Majesty's customs,” and “to appoint officers that may be for the service of His Majesty's Revenue.” See Cradock's commission, 13 Dec. 1759, SF 172363. Lechmere used this formula in other appointments. See Book of Commissions, 1756–1767, fols. 80–81, 203, M-Ar. Temple contented himself with reciting “the Powers and Authority to me given.” See Folger's commission, note 745 above, and examples cited, note 6 above. Accompanying the American Commissioners' reply to the Treasury on Folger's memorial in 1769 (note 30 above), were extracts from letters of the English Commissioners in 1740 and 1765 in which they had questioned not the Surveyor General's authority to appoint deputy collectors, but the wisdom and propriety of his doing so without consulting them. PRO, Treas. 1:471, fols. 192–193; Wolkins, “Boston Customs District,” 58 MHS, Procs. 432–433. This material does not seem to have been put in evidence, perhaps because it dealt with the office of collector, rather than that of preventive officer.
12. See Temple's appointments, including that of Edward Winslow at Plymouth, in note 6 above. The “inconvenience” was simple enough to remedy. The Commissioners confirmed Winslow in his office and either confirmed or replaced other Temple appointees. Samuel Proctor was appointed to Folger's place, but was forced from the island in the fall of 1768. PRO, Treas. 1:471, fols. 461–463; Boston News-Letter, 11 Aug. 1768, p. 2, col. 1; Minutes of the Commissioners, 15 March 1768, 7 Bowdoin-Temple MSS 151–153, MHi; Massachusetts Gazette, 3 Nov. 1768, p. 1, col. 3. Although it does not seem to have been put in evidence, Temple's predecessors had been appointing officers at Nantucket since at least 1740, a fact which was relied on in this case by both sides in their memorials to the Treasury. Folger claimed that it showed the antiquity of the practice; the Commissioners pointed out that the English Commissioners had often rejected such appointments. See Wolkins, “Boston Customs District,” 58 MHS, Procs. 432–433; PRO, Treas. 1:471, fols. 363–365, 366–367; Minutes of Commissioners, 15 March 1768, 7 Bowdoin-Temple MSS 152–153, MHi.
13. 12 Anne, Stat. 2, c. 8, §13 (1713), note 1250 above; 7 Geo. 3, c. 41, §3 (1767), note 1553 above.

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
{ 182 }
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,