This Vessell was seized merely for the omission of an Indorsement upon her Register.

7. & 8. W. 3d, c. 22. An Act for preventing Frauds and regulating Abuses in the Plantation Trade.

§.2: Be it enacted, that after 25th March 1698— “No Goods or Merchandises, shall be imported into or exported out of, any Colony or Plantation, to his Majesty in Asia, Africa, or America, belonging, or in his Possession, or which may hereafter belong unto, or be in the Possession of his Majesty, his Heirs or Successors, or shall be laden in, or carryed from any one Port or Place in the said Colonies or Plantations, to any other Port or Place in the same, the Kingdom of England, Dominion of Wales, or Town of Berwick upon Tweed, in any Ship or Bottom but what is, or shall be of the built of England, or of the Built of Ireland or the said Colonies or Plantations, and wholly owned by the People thereof, or any of them, and navigated with the Masters, and three fourths of the Mariners of the said Places only” (except Prize ships &c. and foreign ships employed for 3 years to bring in naval Stores) “Under Pain of Forfeiture of Ship and Goods” 1/3 to the King, 1/3 to the Governor, 1/3 to the Informer.2

§.17. “For the more effectual Prevention of Frauds which may be used to elude the Intention of this Act by colouring Foreign Ships under English Names;” be it further enacted, &c. that, “No Ship, or Vessell, shall be deemed or pass, as a Ship of the Built of England, Ireland, Wales, Berwick, Guernsey, Jersey, or any of his Majestys Plantations in America so as to be qualified to Trade to, from, or in, any of the said Plantations untill the Person, or Persons, claiming Property in such Ship or Vessell shall register the same as follows, that is to say, if the Ship, at the Time of such Register doth belong to { 226 } any Port in England, Ireland, Wales, or to the Town of Berwick upon Tweed, then Proof shall be made upon oath of one or more of the owners of such Ship or Vessell, before the Collector, and Comptroller, of his Majestys Customs in such Port; or if at the Time of such Register, the Ship belong to any of his Majestys Plantations in America, or to the Islands of Guernsey or Jersey, then the like Proof to be made before the Governor, together with the Principal officer of his Majesty's Revenue residing on such Plantation or Island” &c.

§.18. “Which Oath, being attested by the Governor or Custom officer, respectively who administered the same, under their Hands and Seals, shall after having been registered by them, be delivered to the Master of the Ship for the Security of her Navigation, a Duplicate of which Register shall be immediately transmitted to the Commissioners of Customs in the Port of London, in order to be entered in a general Register to be there kept for this Purpose, with Penalty upon any Ship or Vessell trading to, from, or in any of his Majesty's Plantations in America” &c. “and not having made Proof of her Built and Property, as is here directed that she shall be liable, and she is hereby made liable, to such Prosecution and Forfeiture, as any foreign ship” (except Prizes &c.) “would for trading with those Plantations by this Law be liable to.”4

Prize ships to be registered &c.5 Fisher Boats, Hoys &c. Lighters &c. not to be registered.6

§. 21. “That No Ships Name registered shall be afterwards changed, without registering such Ship de Novo, which is hereby required to be done, upon any Transfer of Property to another Port, and delivering up the former Certificate to be cancelled, under the same Penalties, { 227 } and in the like Method, as is herein before directed; and that in Case there be any alteration of Property in the same Port, by the Sale of one or more Shares in any Ship after registering thereof, such Sale shall always be acknowledged by Indorsement on the Certificate of the Register before two Witnesses, in order to prove that the entire Property in such Ship remains to some of the Subjects of England, if any dispute arises concerning the same.”7

Rules of Construction. Woods Inst. 8.8—3. Rep. 7.b.9—4. Inst. { 228 } 330.10—4 Bac. Abr. 652.11 1 Blackst. Com. 87. 88.12—1. Inst. 11.b.13

This Libel is bottomed on the Act of the 7. & 8. Will. 3 Cap. 22. Those parts therefore of the Act, which relates to the present case must be thoroughly considered.

The facts either proved, or granted, by the Advocates on both sides are, that said sloop was built at Marshfield in this province by inhabitants of the same, and by them owned. In the Year 1759 was duly registered, afterwards by the original was sold to the present owners and claimants, who are inhabitants of the same port with her former owners, that she has been always navigated with three fourths, at least, of english subjects, and that her original name has never been changed. But that on the transferr to the present owners, there was neither a new register taken out, nor any indorsement on the certificate of the old one, and that said Vessell and Cargo being inward bound were seized by said Dawson at a place called Holmes's hole within the port of Boston.

The Advocate General insisted, that a vessel and cargo under the abovementioned circumstances are forfeited by force of the said Statute. Because all vessels, together with their Cargoes, trading to or from the plantations, which are not qualified as the Act directs, are thereby declared forfeit. That the words used in the seventeenth section thereof “deemed or pass” signify adjudged or decreed, and therefore taken in that sense, must relate to a Court and not to Custom Officers.2 That this Act ought not to be considered as a penal one, because the forfeiture therein given is not annexed to any crime, for which the Actor is to suffer corporally, but only to a neglect. And therefore, the rules urged by the gentlemen on the other side touching the construction of penal Statutes, are not applicable to the present case. That the importance of this Act, resulting from its great public { 230 } utility ought to draw such a construction, as will operate very Severely against Claimants. That the last clause in the Act relates only to a partial transfer of a vessel, the words being “and that in case of any alteration of property in the same port, by the sale of one or more Shares in any ship after registering thereof, such sale shall always be acknowledged by indorsement on the certificate of the register before two witnesses” &c.3 That by using those words “one or more Shares,” it is evident only a partial transfer was intended. That this last clause must be taken as part of the general plan of the Act, and therefore must be construed as connected with and relative to the penal parts of it. That the Statute does not say a subject shall forfeit his vessell for not registering her but that she shall not be qualified to trade, and therefore if she does without being registered, she ought, to all intents and purposes, be adjudged a foreign vessell, and so the Cargo condemnable as much as if seized on board a trading vessel actually belonging to foreigners.4

By the Gentlemen on the other side, it was urged, that as indorsements on the Certificate of the register were not practiced till of late nor even required at the Custom houses, it would be against equity now to mark such instances with the utmost severity.5 That, as there is not the least Shade of proof, or even a suggestion of fraud, in this case, it is not within the mischief intended to be remedied by the Statute.6 That the words “deemed or pass” ought not to be construed adjudged or decreed, but more properly are to be understood only as directory to Officers of the customs in the entering and clearing of vessels. That penal Statutes ought not constructively to be extended, because such a practice is against the well known and established rules of law, and in Support of which they produced several good authorities.7 That as no fraud was either committed or designed in this case, the Statute ought not to be construed Strictly against them, even if it was not penal.8 But that the same is penal and therefore a fortiori { 231 } it cannot. That the last clause in the Act has no penalty annexed to it, nor can that clause consistent with the Authorities mentioned be made by construction to relate to the preceeding parts of the Statute mentioning penalties. But if at all it must be confined to the forfeiture expressed in the eighteenth section,9 which extends only to the vessell. These were the principal matters mentioned and relied on by the gentlemen on both sides; some of which do not appear to me to deserve much notice in the present case.

In determining this cause first great care must be taken in making a true distinction between such parts of the Act, as relate entirely to vessels the property of foreigners, and those which only respect english built and owned vessels, tho' not registered pursuant to the directions of the Act. Because on a supposition, that the vessel now libelled against is forfeit a question will Arise, whether the Cargo is also, which question entirely rests on that distinction.

Secondly, whether this Act is to be considered as penal. Because, the rules of construing such Acts, are variant from those which relate to, and govern Acts which are not. And lastly, what is the legal construction of the words contained in the last clause of said Act.

In the second section of the Act Ship and goods are both declared forfeited.10 But then it must be recollected, that the whole of that section entirely relates to foreign built vessels, owned by foreigners and navigated by such. Indeed that section contains nothing more than a repetition of the capital act of navigation, the 12. Car. 2. excepting some additional prohibition touching the plantations.11 In this section there is not any mention of vessels really english built, owned by english Subjects or navigated by such: therefore such cannot be the objects of that clause not being therein mentioned. But the contrary will evidently appear by considering those subsequent parts of the same act, wherein notice is particularly taken and directions given how they shall be qualified, under a certain, and in part, a different penalty. I can not therefore conceive how, consistent with propriety or justice, the said second section, guarded by the forfeiture of ship and Cargo, and calculated for a certain express purpose can relate or be extended to a distinct detach'd part of the same Act, clearly made to regulate cases totally different and under a different forfeiture. Compare the { 232 } abovementioned section with the Eighteenth, and not only the difference in point of forfeiture but the reason of it, I apprehend, will appear obvious. In the second section the Act goes entirely on the supposition, that the vessel so trading is owned by foreigners of foreign built, and not navigated by three fourths english. Doubtless if such a practice was permitted, it would have a direct tendency to enrich foreigners and prevent the increase of English shipping and seamen; therefore in such instances both vessel and cargo are declared forfeit. But in the eighteenth section, the Legislators have no such foreign vessel in view, having already made provision for such, but are guarding against certain mischiefs which might arise among their own Subjects. As the dangers and loss to goverment, where the vessell is really of english built, owned and navigated by english subjects, though not registered pursuant to the Act, can not be so great as in the Case of foreign vessels trading in the plantations, so neither ought the penalty to be. The greater the injury done to a State or an individual, the higher the punishment ought to Arrise. This I take to be one of the two great reasons for varying the penalties in the aforementioned clauses. There is also another very obvious one for the parliament's not annexing the same penalty to the two sections. For had they done it, in some instances very great loss, and in others, total ruin might thereby have fallen upon innocent subjects; a consequence which that Legislature have always Studiously avoided, and where from the necessity of using general expressions, such an instance has come within the express letter of an Act, the common law Judges have in conformity to the designs and desires of parliament ruled it not to be within the meaning of it.12 This rule however is not perhaps to be taken as unlimited, but only applicable where such an exemption may safely be made, and the Act remain in its full intended force. The case alluded to is plainly that of freighters. The wisdom or justice of parliament ought never to be so impeached, as to suppose that, for the omission of an Owner, the innocent freighter who could not, in the nature of things, be privy to it, should suffer perhaps to his total ruin. Such a doctrine if once established, I imagine, would be very destructive to trade and Commerce, and therefore instead of promoting the Public interest, would have a quite contrary effect. And in Addition to what has been observed, I may safely assert, there never was, and I hope never will be found among the english law rules of construing Statutes, that a Judge shall extract the penalty from the first part of a law, calculated for one express evident purpose only, and annex it to another part of the { 233 } same Act, which relates entirely to a different case and governed by different reasons; especially, when in such other part, a penalty is given in an as express terms as that Contained in the first part, though not so great. Granting an english vessel and Cargo to be seized which came within the express provision of the Eighteenth Section, and surely thats as strong a case as the present, could a Judge make an addition to that Part of the Act by condemning both vessel and Cargo, when the Act itself declares only the former liable to forfeitures. On the whole, I am clear in opinion, on supposition the vessel now libelled by law ought to remain forfeit, her Cargo ought not.

In order to determine whether an Act is penal within the sense of the Law, it must first be enquired, whether the Common law is thereby altered, and Secondly, whether there is any penalty expressly annexed to such Act, either pecuniary or corporal. To conclude all Acts not penal, except such as inflict the latter, is contradicting rules too well established to be even called in question. Nor will it do to suppose that the general utility of an Act can exempt it from being Classed among penal Statutes; because such a conclusion proves too much. All public Statutes are made to supply some omission, or correct some defect in the common law, and in their nature must be founded in, and designed for the public Good; therefore as the law has not yet pointed out to what degree of public good such Acts must attain to prevent their being construed as penal ones, they must all remain so, which come under the first mentioned rules, or more. To affirm the latter, in direct contradiction to the many law Authorities, proving the contrary, is what I neither dare or wish to do. When a severe corporal punishment is enacted, the Argument drawn from importance and public utility, seems to me, will be stronger, for such Acts are made to prevent the most atrocious crimes, and therefore those Statutes may justly be said to be of the greatest importance and utility to the community. This doctrine however has never prevailed, nor never can untill the well known and established rules of law are entirely altered.13 And it is equally clear, from all the books treating on this Subject, that very many Acts, to the breach of which there is not any corporal punishment fix'd, but only a fine or forfeiture, have { 234 } always been esteemed penal, and received constructions applicable to such Statutes. To enumerate instances of this kind to convince Lawyers would be a misspence of time.14 On a due and thorough consideration of this point, I am of opinion, that the Act in question is and must be, notwithstanding its general importance, which undoubtedly is very great, and ought in every part to be punctually complied with, determined penal, and liable to the rules of construction relative to such Acts.

My next business is to endeavour to disclose the true meaning of the last words in the Statute,15 on which this Case rests.

I have already attempted to shew a distinction between those parts of the Act which relate to foreigners, and those which appertain to English Subjects, not conforming to the express requisites of the Statute. I shall now also attempt to shew a difference between cases coming under the last paragraph of said Statute, supposing this to be one of that class for the present, and such as are within the words immediately preceeding said paragraph. Whenever an Act is introductory of new rules for the regulation of commerce, ordaining what shall be done by the subject, and the manner of doing it, namely under oath, establishing a certain penalty for the neglect thereof, and then immediately goes on to regulate cases under other and different circumstances, without mentioning any penalty or oath, it must be supposed, that the Legislators did not conceive the latter instances of such importance as the former: otherwise they would have guarded the one as strongly as the other. On no other principle can the different modes pointed out by the Act be accounted for. This is exactly the present case. The Act very clearly orders a register de novo on a vessel's name being changed. Also on any transfer of property to another port, under, as I construe it, the forfeiture of the vessel. Then follows the last clause Vizt. “And that in case of any alteration of property in the same port, by the sale of one or more shares &c. such sale shall always be acknowledged by indorsement on the certificate of the register” &c. Is it possible, on due consideration of these two clauses to suppose, that the Parliament conceived there was in both cases a like necessity of a new register, supposing the words “one or more shares” include an entire transfer, and yet in the one, command it expressly, and in the other, which immediately follows, order a different mode. Or can it be imagined, that by guarding the first part, which they have ma• { 235 } terially differed from the last, with a certain penalty, they thereby intended the penalty should be extended by implication to the last; especially since its beyond all doubt, that the sanction of an Oath is required by the first and omitted in the last. It's natural to conclude, had not the intention of the law makers been to have discriminated between the cases, they would have inserted those words about transfering one or more Shares in the same port before the penalty; and thereby have brought the three cases under the same predicament. By admitting the indorsement before two witnesses to be one complete mode of evidence to prove the property english, and that not under the sanction of an Oath, the Strongest bond of society, it is evident they did not think there was equal danger in such cases of evading the Act, as in the others. This, I think, must be the reason why they omitted, in the last part of the Statute, that strong requisite and the penalty. In my Opinion it is equally justifiable to condemn, where an entire transfer is made in the same port (tho' the words share or shares only extended to a partial Sale) because there was not a new register taken out, under colour of promoting the main Scope and purpose of the Act, as to extend a penalty clearly designed for certain cases, and expressly annexed thereto, to others, apparently in the contemplation of the Legislators, of much less consequence; and whereto they did not think proper, in express terms at least, to fix any. This would not be construing an Act in conformity to any rules of law, but in fact, giving a decree in addition to an Act. Such a power would be subversive of the authority of parliament, and of all Acts.16 For by the same reason that a Judge could add to, he might diminish from any act, so that it would be in his power to mould them ad libitum. If the words, “any one or more Shares,” are taken as relative to and meaning a partial transfer, then the true sense of them is, that when the fact is known to the officers of the Customs, they shall have power to refuse entering or Clearing till the indorsement is made. And where it is done and produced, it shall amount, prima facie, to satisfactory evidence of the property's being wholly english; and thereby put an end to disputes about it, and prevent great delays in business. From this view of the words, the reason why the Compilers of the Act, did neither extend the penalty or require a new register in such partial transfers, is evident. First, there is not in such instances equal danger of the { 236 } Act's being evaded, with impunity, as where a vessel is wholy transfer'd to another Port or where her name is changed. And secondly, because considering the vast numbers of transfers of quarters eighths sixteenths and other small proportions or shares of vessels, it would be laying a heavy burthen on trade, not only of the pecuniary, but troublesome kind, to require in every such instance a new register. This construction, tho' not clear of all doubts, is much the most natural and easy, it being vastly more consistent with the other parts of the Act, than the one last contended for by the Advocate General.

I will now particularly consider that Gentleman's construction of this last part of the Act, and see how well his own doctrine will serve his purpose. He very Strenuously and repeatedly urged, that the words “any one or more Shares”, therein used, manifestly pointed out the meaning of Parliament. That thereby, I take his own words, “it is evident to any one, who has the least Idea of the force of english words, only a partial transfer was intended, and not an entire and complete one.” So far I incline to his Opinion. But in the Close of his Argument, he as strongly contended, that this very last part of the Act must be taken as part of the general System intended to be formed by the Act, must be connected with, and relate to the penal parts of it; and therefore as this vessel was not qualified to trade, that part of the Act, which gives the forfeiture of both vessel and Cargo, must be applied to this last part; And consequently, in the present case both are forfeited. This reasoning can not be right, because by his own doctrine the words, “any one or more Shares” mean no more than a partial transfer, which is not pretended in the present case, but the Contrary has been by him all along acknowledged, Vizt. an entire Sale of the said vessel. So that supposing his first argument right, the present case, beyond all possibility of doubt, is casus omissus. And it is equally certain granting it to be such, that it is not in any Judge's power to remedy that inconvenience, any more than to make a new law.

Upon the whole, as I can not find any Law by which either vessel or cargo ought to be condemned, I adjudge and decree, that the said libel be dismissed, and it is accordingly hereby dismissed, saving the right to both parties of appeal. I do not decree a restitution of said Sloop and cargo, because the same have been already delivered to the Claimant, by virtue of a writ of delivery they first having duly stipulated for the value thereof agreable to the practice of the Court.17

I also certify, that as the Seizing officer could not possibly know whether the transfer was in the same port, or who were the real Owners, there was a probable cause for making said Seizure.18 As to the costs, I decree each party to pay his own.

The above decree would have been given some days sooner, had there not been an application for another argument which application is now waived.

The Jenny, owned by Elisha Doane, long one of Adams' clients, was stopped inward bound to Boston on 3 March 1773 by George Dawson, the naval officer involved in the case of the Dolphin, No. 51. Finding that she had goods aboard of European origin that had not been shipped in Great Britain as required by statute, Dawson seized her and had her brought into port. On 24 March, Samuel Fitch, the Advocate General, filed a libel in the Court of Vice Admiralty against vessel and cargo. Doane claimed the Jenny and at least a portion of the goods seized, and argument was had on the case sometime in April. John Adams and Sampson Salter Blowers were of counsel for Doane; Fitch and James Otis argued for Dawson.1

As Adams' minutes, printed below, indicate, Blowers opened the case for Doane, presumably because under the Acts of Trade the claimant had the burden of proof as to the origin of the goods.2 Two statutes were involved. Under the Staple Act of 1663 if goods “of the growth, production, or manufacture of Europe,” were “imported” into the colonies without having been loaded in England, vessel and goods were forfeit.3 A provision of the American Act of 1764 tightened enforcement of this regulation by permitting the seizure at sea of any goods found aboard a vessel “arriving from any part of Europe,” for which there were no papers showing that the goods had been taken aboard at a British port.4

In 1767 the High Court of Admiralty had upheld a decision of the Massachusetts Vice Admiralty Court that a vessel which had been seized in Boston Harbor when still three miles from port had “imported” goods within the meaning of the 1663 Act.5 The facts in the Jenny's case were apparently within this decision because the question does not seem to have been raised at the trial. In order to avoid forfeiture of the vessel, Blowers and Adams thus had to show that none of her cargo was of European “growth, production, or manufacture” ; if this was impossible, then at least all goods of non-European origin might be kept from condemnation, if it could be proved that the Jenny had cleared from a non-European port.

Blowers attempted to meet this burden by introducing evidence to the effect that the cargo had been loaded at Tangier. This fact, if established, would at least save non-European goods, and might allow an inference that the entire cargo, having been loaded in Africa, was of African origin. The evidence consisted of the testimony of several witnesses, probably members of the crew; the certificates of one Meshod Meguiers, apparently English Vice Consul at Tangier, that the goods had been loaded there; and the master's manifest, presumably also to the same effect.

Otis and Fitch seemed to have no direct evidence in rebuttal, but launched a telling counterattack both on the credibility of Blowers' evidence and on the inferences which he hoped to draw from it. The witnesses were all connected with Doane, and their testimony was full of inconsistencies; the certificates were incomplete, inconsistent, and of doubtful probative value; the manifest was rendered doubtful by evidence that Doane had tampered with it, and by one witness who indicated that the harbor of Tangier did not have adequate facilities for taking on cargo. In addition, much of the cargo was patently European in origin. In all likelihood the Jenny had actually cleared from Gibraltar, across the straits from Tangier.

Adams must have closed the case for Doane, but he has left us no record of his arguments. Whatever they were, they failed to convince the court completely. On 12 May the Jenny and at least part of her cargo, { 239 } consisting of raisins, wine, cotton and silk stockings, and several pieces of silk, were ordered to be sold. Since not all of the goods mentioned in Fitch's argument appear in the notice of sale, it is possible that the court found some items to have been non-European, both in origin and point of shipment.6 In any event, the sale on 20 May produced an adequate return for Dawson's efforts. The court's receipt book shows that his half of the proceeds amounted to £773 16s. 11 1/2d.7

Blowers. Libel, claim, 15 Car. 2, c. 7, §.6.2

Hillman, and Cato.

Certificates. Goods claimed, taken in at Tangier.

Captn. Brace. Hides cured in the Hair with salt.

Brooke and Guthrie. Fez, Morocco.

Downes's Manifest.

Mr. Otis. Reads Libel, Claim, and Answer. 15 C[ar.] 2, c. 7, §. 6.

4. G. 3, c. 15. page 291. No Vessell shall be cleard out in England unless the whole Cargo was shipped in <England> Great Britain.3

Onus on the Claimant.4 No attempt to prove the Goods grown in Affrica.

Bishop [Burnet?] said he always presumed a [Priest?] to be a Rogue untill the contrary is proved.5 Doane has been catched. And therefore must be presumed to be a Smuggler, untill he proves himself a fair Trader.

This Vessell as curious a Voyage as St. Paul made to Rome.6

Pieces of Silks.

Mr. Hallowell tasted one Quarter Cask, it has the Taste of Malaga Wines, not so sweet as some Malaga.7

Jona. Wild8 would blush at mentioning the Supposition, that C[aptain] Dawson procurd these silks to carry about to take in a fair Trader.

It appears on Record that a Number of Packages were thrown over. Negatur.

French Chart. Shews that C[aptain] Brace was mistaken in many things.

500 Cattle, an over load for the Ark. [ . . . ] to an Horse.9

Ballances the Testimonies of Mathews, Hillman and Cato.

Harrison and Hallowell, about Downes's Manifest.

Major Doane required the Master to swear differently from what he first intended.10 A strong mark of fraud.

The Conversation between Major Doane and Mr. Waterhouse and Hallowell, can by no means help them for it appears clear the Major did not follow his Advice.

As to the Conculs Papers produced, tho I am willing to allow them authentick, yet they can prove nothing for every Body knows those Certificates can be obtained when askd for.

Advocate General.

The Cause rest[s] on two distinct points, the first is on the 15 Car 2d.11 That the Goods on board her were not of the Growth &c. of Europe.

The other is that this Vessell came from some parts of Europe, and has produced no Cocket or Clearance.12

The Burthen of proof on the Claimants.

Remarks on the Statutes.

1. The Act of Charles, of the utmost national Service.13

Captn. McNeal. No Harbour at Tangier, no shelter since the Pier blown up. An open Bay.14

The Act. 4. G. 3. whole Cargo must be relanded and reshipped. p. 291.

No Proof that any one Article, the Produce of Africa. Only consequential.

Certificate from Mr. Meshod Meguiers.

Salt not exported from Africa.

Oyl. 26 Boxes. Figgs, Capers &c.

Pampo[u]ses.

Honey. Matts. Silks never exported from Africa.15

Our Witnesses, their Connection with the Claimant.

Cato talks of a Xebec 3 Masts. Hillman a Schooner, with 2 Masts.

Cato believes 'em to be Spaniards. Cato's 200 could not be Hillmans 200 therefore 400.

Mathews 900. 1st. did not know.16

Unwillingness and forgetfulness of Hillman. At a Loss as to Time how long, &c. when the Mate died &c.

Pampouses, shipd in Europe, tho produced in Africa must be shipped in England by the statute 4. G.17

The Wine.

Certificate.

Doane and his V[ice] Consul dont agree. D. says not shippd, Consul that they were at Tangier.

The only unerring Guide is Truth.

Masters Manifest. From Tangier, should have been from Gibralter.

On 25 March 1774, aroused at the presumption which Boston had earlier displayed in dumping the East India Company's tea into the harbor, Parliament passed the Boston Port Act. This was the first of a series of harsh measures known as the Coercive, or Intolerable, Acts, which were designed to bring Massachusetts to heel. Instead they stirred an immediate storm of resistance, which produced that final colonial union necessary to make the fight for independence a reality.1 Adams' minutes of the arguments in a case arising in the first days of the Port Act's operation, which are printed below, are hardly prophetic of these later developments.

The Act, which was to remain in force until the Town had paid for the tea and made good other damage incurred through its rebelliousness, provided that after 1 June 1774 no goods other than food or fuel shipped coastwise could be loaded or unloaded in Boston Harbor, except by vessels which were there on or before that date. Even these ships were to depart by 14 June. Other vessels found moored or hovering in the Harbor, or within a league of it, could be seized as forfeit if they did not depart within six hours after being warned by a naval or customs officer. Violations of the Act were to be prosecuted in the same manner as offenses against the Acts of Trade, which meant at common law or in Admiralty at the option of the prosecutor.2

All that is known of the case which Adams minuted has been deduced from his notes. Some time in April 1774, one Ross, master of a vessel of unknown name, sailed from an unknown port bound for New York with a cargo which included indigo and wrought plate. When about 1500 miles from Boston, the vessel was seriously damaged, presumably through stress of weather. Finding his condition such that he could not make New York, Ross put into Boston although he had heard “in his Passage” that the port was closed. The date of his arrival cannot be calculated with any certainty; the best guess is that it was about the middle of June, but it could have been as late as mid-July.3 Apparently recognizing this as a genuine case of distress, Admiral Montagu and the customs officers allowed Ross to { 244 } enter the port for repairs. But Ross overstayed his welcome. After an indeterminate period, probably two to three weeks, his ship was still not ready to sail, and he had begun to offer some of his cargo for sale, perhaps to raise necessary funds.

The Crown now acted, presumably by seizing the vessel and libeling her in the Admiralty Court. In view of the local reaction to the Port Act, it is unlikely that the customs officers would have entrusted any case under it to a jury, and there is no record of any proceeding at common law.4 Daniel Leonard argued the case for the Crown and William Tudor appeared for Ross, who had presumably filed a claim for the vessel. Adams' minutes show that he attended the argument. It thus could have taken place before he left for the eastern circuit on 20 June, but it was probably held between his return from the eastward on about 18 July and his departure on 10 August to attend the Continental Congress at Philadelphia.5 The question chiefly agitated at the hearing was whether Ross had been diligent in getting his ship ready to put to sea. No record has been found of the result, but it seems most probable that the vessel was acquitted, because no notice of her sale as forfeit appeared in the Boston newspapers.

Leonard. Port Bill, Lex Talionis. Punishment of Boston the main Object.

There is an Exception where by the Act of God, there is an Impossibility of getting out.2 A Necessity.

She had no Right to Stay to repair and refit for a Voyage.

She might have gone out, if not in 6 Hours,3 yet in two or three days.

She was not in a worse situation than she had been.

She might have hired assistance.

The Part the Crown officers have acted is extreamly fair and legal.

The Admiral could not allow him to stay compleatly to refit. Tho he seemed to understand that he had leave to do so.

Mr. Gray4 tells us that the whole might have been had in a Week.

J. Hall thinks 7 or 8 days. Compasses were done in 4 days.

If she is not now fit for sea that is not an excuse.

He is shewing Specimens of his Indigo &c. and brings on shore some of his Wrought Plate. This comes within another Act.5

Plate—Goods, Wares or Merchandise.6

She was in the same Condition in which she came 500 Leagues.

Tudor. The Rules that govern other Acts, are to rule this.7

Ross Sail'd in April. Heard in his Passage that Boston Port was shut.8

Holrode describes their distress. Bound to N. York. Shut. And Middleton says, Distress. Mier, and Dodge.

John Hall. Mate of the Mercury9 describes her distress, no Masts, sails tattered.

James Hall. We have invalidated his Testimony.

Jack the Pilot. Distress enough.

It was Ross's Duty to come in here.

Q. Whether Ross used his utmost Endeavour to get out?

Hall says Ross did Use a reasonable Dilligence. Middleton &c. Mier says Ross hurried them.

In Town. Mr. Hutchinson. Very dilligent. Concernd about lying at Expence.

His Landlady. Anxious to get away.

Ruggles the Sail maker. Up at Gun firing [hiring us?].10 Worked on the Mast when the Weather would permit. Employd as Many Hands as could be employed.

Colonial forests were a natural resource upon which Britain depended for a vital element in her naval strength. The towering white pines which had grown untouched in the woods of northern New England for centuries were unequaled throughout the world as mast timber. Moreover, the supply from this source did not depend upon the vicissitudes of foreign trade or war and peace. The royal mast contractors met severe competition, however, because these same mighty trees were attractive to the colonists both for maritime uses and for the humbler purposes of the settler. To protect the forests from local depredations, the British developed a statutory conservation scheme, enforced in the Vice Admiralty Courts, which led to a running battle with the colonists through most of the 18th century.1

The basis of the scheme was the Massachusetts Charter of 1691, which combined the former colonies of Plymouth, Massachusetts Bay, Maine, Nova Scotia, and certain lands lying between the latter two, into a single province. In the Charter “all Trees of the Diameter of Twenty Four Inches and upwards of Twelve Inches from the ground” growing on land “not heretofore granted to any private persons” were reserved to the Crown, to be cut only by royal license; a penalty of £100 for each tree cut without license was established.2 To implement this provision a system of licensing certain royal mast contractors was established, and a Surveyor General of the Woods was appointed to oversee their operations and to put down unlicensed activity.3 After a series of only partly successful enforcement attempts, Parliament in 1711 embodied the Charter language in the { 248 } first of the White Pine Acts, which provided that no “white or other pine tree” meeting the Charter qualifications should be cut in any province or colony north of New Jersey. Penalties in the amount set in the Charter were to be sued for before the nearest justice of the peace and to be divided equally between the Crown and the informer.4

These provisions produced more controversy than conservation. The popular faction in the Massachusetts House, led by Dr. Elisha Cooke, a lifelong opponent of royal authority, denied that the Charter and Act bound the unincorporated Province lands in the timber-rich Gorges patent in Maine, claiming that the royal grant of this tract to Sir Ferdinando Gorges in 1639 brought it within the exception for lands granted to private persons.5 In 1718 Counsel for the Board of Trade held that the conveyance of these lands from the Gorges interests to the Massachusetts Bay Colony in 1678 and the vacation of the colony charter in 1684 revested the lands in the Crown and took them out of the exception.6 The focus then shifted { 249 } to the trees themselves. In 1721 the House claimed and exercised the power to seize for the Province logs that had been cut into twenty-foot lengths. The justification advanced by Cooke was that the Charter reserved only timber fit for use as masts. This stand was the basis of one of the charges of usurpation of the prerogative which Governor Shute successfully prosecuted against the House before the Privy Council in 1725.7

The Act of 1711 also proved inadequate in its enforcement provisions. Jurisdiction of offenses under it had been given to justices of the peace { 250 } to avoid the hazards of jury trial, but the local interests of the justices made them of little more value than juries in obtaining convictions of violators.8 There were other impediments to prosecution: The Crown bore the burden of proving that trees had been cut on reserved land;9 the rigid and complicated common-law process, which was under the control of reluctant local courts and sheriffs made it difficult to obtain execution when penalties were awarded;10 there was no express authority for the in rem seizure and forfeiture of trees felled within the prohibited areas.11

The Naval Stores Act of 1722, which was the basis of enforcement until the Revolution, sought to deal with all of these problems. It repealed the Act of 1711 and replaced its provisions with a prohibition against the unlicensed cutting of “any white pine trees, not growing within any township,” in the colonies from New Jersey north, with penalties varying in amount according to the size of the tree. The bulk of the Gorges tract, being unincorporated, was thus covered, whatever the state of the title.12 The problem of locally oriented courts was solved by a provision that the penalties were to be recovered “before the judge of the admiralty, or his deputy, within the colony or plantation where such pinetree shall be { 251 } cut.”13 Other complaints about the judicial process were remedied by placing the burden of proof of the trees' location upon the claimant and by providing stringent measures for execution by distress and sale.14 To meet the contention that cut logs were not Crown property and to end the difficulties experienced in enforcing seizures, the statute further provided that all illegally-cut “white pine-trees, masts or logs made from such trees,” should “be forfeited and seized for the use of his Majesty.”15

It was soon argued that the Act of 1722 had rendered void the Charter reservation. The Crown law officers ruled that the reservation was still in force, but repeal of the Act of 1711 meant that, except in Massachusetts, trees of the reserved size were protected only if they grew outside township bounds. Within Massachusetts the Charter covered trees in the towns, but its enforcement was again at the mercy of common-law juries.16 These loopholes were closed by the Act of 1729, which provided that in all of the American colonies no white pine trees should be felled (except by licensed cutters) even within a township's bounds unless they were “the property of private persons,” and that in Massachusetts white pines within the Charter reservation should not be cut unless they were on lands granted to private persons before 1690. The penalties and recovery machinery of the 1722 statute were to be applicable to violations.17

The construction which the Crown gave to the rules applicable in the Province of Massachusetts may be summarized as follows: (1) White pine trees of the size reserved in the Charter could not be cut without license unless they grew (a) within a township at the time of cutting, and (b) on land granted to private persons before 1690. (2) White pine trees of lesser size could not be cut without license unless at the time of cutting they were (a) within a township, and (b) the property of private persons.18 Until the Revolution this scheme was criticized as bad conservation and commercial policy, as well as an unjust taking of property without compensation. It was also attacked before the courts. Despite the best efforts { 253 } of men seriously interested in a sound forest policy, the attacks on policy grounds brought no change. The court battles provided a constant accompaniment to sporadic efforts at strict enforcement.19

These efforts and resultant opposition, legal and otherwise, continued steadily until 1743 when Benning Wentworth, Governor of New Hampshire, succeeded in becoming Surveyor General of the Woods, a fitting appointment, since the mast contract for the northern woods was also in the Wentworth family. Enforcement now subsided, perhaps because the wide-ranging family timber interests were able by different means to satisfy the demand for naval stores as well as for commercial lumber.20 Apparently moved both by new demands for enforcement from the Crown and by the encroachment of commercial rivals on the family preserve, Wentworth in 1763 suddenly began to enforce the Acts in a series of suits for logs brought in the Admiralty Court at Boston. These suits continued until his resignation, in 1766, as Governor of New Hampshire and as Surveyor.21

John Wentworth, nephew of Benning, and successor to both his titles, brought to his new positions a desire to enforce the laws and an enthusiastic interest in the welfare of his native New England. He was in office until the Revolution, and was always active in the surveying phase of his commission, which required him to locate trees suitable for masts and to mark them with the King's broad arrow. He also worked continually to remove colonial objections to the laws.22 From the beginning, however, he was engaged in the task of enforcement. In July 1767 and again in September he brought libels in the Vice Admiralty Court at Boston for the forfeiture of illegally cut logs and masts which he had seized.23 Thereafter he was not a suitor in that court until April 1769, although he may have brought { 254 } forfeiture actions in the Portsmouth Admiralty Court, held by William Parker, deputy of Robert Auchmuty, Judge of Admiralty at Boston.

In the spring of 1769 Wentworth was about to proceed in the Portsmouth court when Auchmuty suspended Parker from office; Wentworth therefore turned again to Boston. In a letter of 10 April he sent several “informations” against violators to Joshua Loring Jr., one of his deputy surveyors general, with directions to put them in suit before Auchmuty. (No. 54, Document III). At about the same time, John Hurd, one of the Governor's staff, forwarded other informations that had already been “under Consideration of Mr. Parker.” (No. 54, Document I). In his letter to Loring, Wentworth suggested that his old friend and Harvard classmate, John Adams, be retained to prosecute the suits. Wentworth spoke warmly of Adams and their somewhat neglected friendship, and ordered that Loring “Present the Lawyer rather a generous fee.”

Wentworth's letter may represent one of the influences which were brought to bear on Adams at about this time in an effort to draw him to the side of government.24 Adams, however, seems to have proceeded in the case more out of pleasant regard for his old companion (and perhaps for the “generous fee”) than from any conscious political motive. On 24 April he wrote Wentworth, reporting on his progress in drawing several libels, and asking for information necessary to complete others. (No. 54, Document IV). The letter concludes with a personal message, briefly reminiscent of the baroque style of Adams' youthful correspondence, which seems to express a longing for the freedom and innocence of their old friendship, while recognizing that in present circumstances it could never again exist.

Whatever his motive, Adams drafted an information praying forfeiture of 606 logs and nine masts seized by Wentworth in various locations in York and Cumberland Counties, Maine. (No. 54, Document II). Although Adams' draft is dated 20 April, the libel was filed on 1 May, and claimants were cited to appear on the 24th. The logs and masts were decreed forfeit on 1 June, apparently without a claim's being filed.25

In the months before and after the forfeiture, twenty in personam actions, some of them involving several respondents, were entered in the Court of Vice Admiralty on Wentworth's behalf. The Minute Book of the court shows that Adams filed three of these on 4 September 1769; penalties of £50 to £100 were decreed against the respondents upon their default on 20 November.26 Fifteen years later, in describing the White Pine Acts to the Maréchal de Castries, the French Minister of Marine, Adams wrote that at Wentworth's request he had “commenced and prose• { 255 } cuted a great number of libels in the court of admiralty at Boston against transgressions of those acts of parliament.”27 This statement and Adams' letter to Wentworth indicate that Adams was responsible for most, if not all, of the remainder of the twenty suits as well.28 The Minute Book shows that, in addition to the three defaults, forfeitures were decreed in only two other actions. Of the rest, two were settled, one was dismissed, and in twelve the respondents were not served.

After 1769 Wentworth's enforcement activities seemed to subside, at least as they were reflected in Admiralty actions at Boston. Perhaps he was trying to encourage compliance through persuasion and negotiation, rather than by legal process.29 His dealings with the Kennebec Company which preceded his action against logs found on the lands which it claimed in Maine (No. 55) suggest an effort to reach an understanding.

In the summer of 1769, the Company, one of Adams' most important clients, had won three significant actions against other claimants to that famous tract, the Kennebec Purchase.30 Perhaps encouraged, the Proprietors, all of whom were important figures in the Boston financial community, wrote to Wentworth on 16 October 1769, asserting their claim to the Kennebec lands, and protesting the entry thereon of the royal mast contractors, but expressing a willingness to furnish masts to the Crown on their own terms. Wentworth replied that he could not decide the validity of their title himself, but that he was as eager as they were to have a correct determination of it. He offered either to bring an action in Admiralty that would decide the question, or to transmit to England a state of the Proprietors' claim for a ruling. Although he could not “relinquish the Royal Claim either in honor or Justice,” he would in the meantime “endeavor to prevent tho' I have no power to refuse the Cutting Masts on the premises.”31 The Proprietors apparently hoped to avoid either variety of determination, perhaps relying on their social acquaintance with Wentworth to produce a favorable result. They thus wrote to him in May 1770, sug• { 256 } gesting that he submit the question to counsel for an opinion. Wentworth refused to be trapped, pointing out in reply that his position was based on the opinion given on Cooke's claims in 1718, to which he must conform, and that the question was beyond his competence. He renewed his offer to forward the Company's state of its claim, however.32

About a year later, Richard Jackson, counsel for the Board of Trade, was asked to decide the matter on the basis of a letter from Wentworth, stating the Kennebec claim. Jackson refused to decide the question of title involved, but stated that if the trees in question grew within a township, and if the claim of the Kennebec Company to a title derived prior to 1690 were established, the trees could be cut without penalty.33 The Proprietors were still reluctant to submit their title to the courts, however, probably fearing the effect of an adverse determination on other claims which might be brought for the lands. In December 1771 they petitioned the Admiralty and Treasury, not for complete relief, but for compensation for logs taken from their lands, stating that they wished to avoid litigation, “the entering into a Law Suit having the appearance of refusing the Masts for His Majesty's service.” Wentworth himself recommended this solution to the Treasury, “not as a matter of right, but as a Gratuity for the Timber being found well preserved upon their Land.”34 The petition, which had not been acted upon by the fall of 1772,35 was probably tabled, because the question was finally submitted to litigation.

Perhaps expecting efforts at settlement to fail, the Proprietors had already begun to prepare for litigation. At a meeting on 8 January 1772, James Bowdoin, James Pitts, Sylvester Gardiner, Benjamin Hallowell, and { 257 } William Bowdoin were constituted “lawful attorneys,” who were empowered, among other things, “to appear, and the Person of us said Proprietors Constituant to represent before any Governor, Judges, Justices, Officers and Ministers of the Law whatsoever, in any Court or Courts whatsoever, and there on our behalf to answer, defend, and reply unto all Actions, Matters and things whatsoever,” with power to appoint attorneys under them. Since the previous grant of such a power to a committee had authorized only the appointment of an “Attorney for the proprietors to appear for them in any Courts of Law or Equity in New England or Great Britain,” the 1772 vote indicates an awareness that the controversy with Wentworth would be tried in Admiralty. At the same meeting Adams, who had been acting for the Company since 1769, was formally voted “Attorney in all Causes, Real, personal, or Mixt, moved and to be moved for us or against us.”36

On 14 July 1772 an information was filed in the Court of Admiralty at Boston against a total of 573 logs, 424 pieces of hewn timber and 70,000 feet of pine board, alleged to have been seized on the Kennebec River and at various locations within the claimed lands to either side of it.37 The action seemed calculated to produce a determination both of the Kennebec claim and of the question whether the statutes applied to dressed timber (other than masts) and sawn boards, as well as to trees, masts, and logs.38 Adams appeared for the Kennebec Company and filed a claim, which apparently asserted its title. The case was argued on what Adams in his minutes described as a “demurrer” (No. 55, Document II), but which in Admiralty practice is more properly known as an exception. The effect was that of a demurrer, however, which admitted all the facts as to the chain of title pleaded in the claim, leaving in issue only questions of law as to the validity of the title and the construction of the White Pine Acts.39

The case was heard in March 1773. James Otis and Samuel Fitch, the Advocate General, argued for the Crown. Adams appeared for his old clients, undoubtedly with a colleague whose identity is not known. Printed below in No. 55 are a list of questions of law apparently drawn for the hearing (Document I), Adams' minutes of the Crown argument (Document II), and Adams' notes of his own argument (Document III).

The Kennebec Company traced its title back to the Council for New England, or Council of Plymouth, established in 1620 by a royal patent which conveyed to it all of New England from 40° to 48° North Latitude. In 1630 the Council had granted to William Bradford, moving spirit in the Plymouth Colony, the so-called Plymouth Patent, which conveyed both the lands which the Pilgrims had occupied in Massachusetts and a tract on either side of the Kennebec to be used for trading purposes. In 1641 Bradford had “surrendered” to the colony his interest and that of his associates in the patent. Plymouth sought to improve the Maine lands, leasing the trading rights there periodically and adding further tracts acquired by deed from the Indians. Finally in 1665 the colony conveyed the land to four individuals. The heirs and successors of these grantees organized in 1749 as “the Proprietors of the Kennebec Purchase from the late colony of New Plymouth,” an arrangement given legal sanction by a Province Act of 1753 permitting the proprietors of undivided lands lying outside of organized townships to act as a body.40

The basic position of the Proprietors was that the chain validated their title and that at least the conveyance out of the Plymouth colony in 1665 was a grant to private persons before 1690, within the meaning of the Charter and statutes. Otis and Fitch attacked the Kennebec position along two lines: First, that the grants were made not to “private persons,” but to corporate bodies or to tenants in common of undivided lands, who as proprietors held in a capacity other than private. Second, that the chain of title was defective, so that even if the grantees were private persons, they did not hold by virtue of a grant, but by adverse possession. Even if the Proprietors' arguments on these points prevailed, only trees growing within townships would be protected.41 Fitch argued that the 1722 act had been { 259 } construed to mean that trees growing outside of township bounds were reserved, regardless of ownership. Adams met the argument with the proposition that the Charter excepted grants to private persons, regardless of township bounds, and that the exception was not narrowed by the Act of 1722, which was intended to apply only in other royal provinces in which all unincorporated lands of necessity belonged to the Crown.

Adams' arguments must have been successful, because on 3 May 1773 Wentworth's libel was dismissed. The Surveyor General appealed to the Privy Council, and in September 1774 his petition was referred to the Council's Committee for Hearing Appeals, which finally set the case for hearing on 3 August 1775.42 No record of the result has been found. If the petition was not withdrawn, the Order in Council resulting can have had little effect, since Boston was by the time of its issuance the besieged stronghold of the last vestiges of British authority in New England.

The inclosd Informations were preparing by Mr. Claggett,2 and under Consideration of Mr. Parker the Deputy Judge of Admiralty, { 260 } when he received a Letter from the Honorable Judge Auchmuty suspending him from the Office.3 Mr. Claggett returnd them to the Surveyor General, and by his directions I forward them to you, to be laid before Mr. Auchmuty, who will know best to putt them in proper order; and if he thinks the Evidence sufficient forward them for Execution, as the Governor has already advisd. There will be further and more particular Information soon collected from some of the principal people at Law which shall be immediately sent along. I am with great Esteem and regard Dear Sir Your Most hum Servt.

John Wentworth Esqr. Surveyor General of all and singular his Majestys Woods on the Continent of North America shews that on the Twenty fourth day of March last he seized for his Majestys Use, at the several Places hereafter mentioned in said Province, the following white pine Logs; vizt at a Place called little Ossipee in the County of York in said Province Three hundred white Pine Logs from twenty four to fifty four Inches Diameter, and from Eighteen to Twenty four Feet long; at a Place called Narragansett in the County of York in said Province Three Logs from twenty five to Thirty Inches Diameter; at Faybans Mills so called in Scarborough in the County of Cumberland, Three hundred Logs.

At a Place called Dunstons Landing in Scarborough aforesaid, two Masts, vizt one of forty Inches Diameter and fifty seven Feet long, another of forty four Inches Diameter and Eighty seven feet long.

At a Place called Blue Point in Scarborough aforesaid one Mast of forty four Inches Diameter and Ninty three feet long, one of twenty Eight Inches Diameter and Eighty Eight feet and an half long; At a Place called Pepperellborough in the County of York aforesaid one Mast forty two Inches in Diameter and Sixty feet long, one of forty two Inches in Diameter and Eighty four feet long, one of Thirty Six Inches in Diameter and Eighty four feet long, one of forty two Inches in Diameter and fifty seven feet long, one of Thirty Six Inches Diameter and fifty seven feet long. At Narragansett in the County of York aforesaid Three Logs from twenty five to Thirty Inches Diameter; All cutt out of Trees growing in this Province, and not in any Township, or within the Bounds Lines or Limits thereof, or if growing within the Limits of any Town, those of twenty four Inches Diameter at twelve Inches from the Ground, not growing within any Soil or Tract of Land granted to any private Person before the Seventh Day of October Anno Domini 1690, and those under Twenty four Inches Diameter, not being the Property of any private Person or Persons, and felled by some evil minded Persons within Six Months last past, without his Majestys royal Licence first had and obtained; and by them removed to the aforesaid Places, contrary to the Laws in that Case made and provided.2

Wherefore as this matter is within the Jurisdiction of this Honorable Court the said John Wentworth prays sentence for the Forfeiture of said Logs to his Majestys Use, agreable to Law.

Inclosed are informations against sundry Tresspassers upon the King's woods, in the (late called) Province of Main. Which I request you will immediately in my name enter Complaint of, before the Honorable Robert Auchmuty Esq. and pray that process may immediately issue thereon, for recovery of the penalty. The Trees were not seized mentioned in the information No. 5, As the offenders by violence and menaces rendered it too dangerous for any single Officer to perform, but I am determined in May next to go myself and convince them that Threats and wicked Intents are not enough to prevent any service being done;2 that is committed to my care. Whatever may be the Event, I will assuredly attempt and persevere in my duty. As Mr. Sewall is now (I am glad for him) constituted Judge,3 I am at a Loss who to direct to as Advocate, If he does not still act, I desire you'd employ John Adams Esq. in my behalf to prosecute and aid and advise in these suits. He was my Cotemporary at Cambridge, and will I dare say oblige me by his greatest care and assiduity herein, which I hope will give me opportunity to convince him that our Friendship long since commenced is still the object of my pleasing respect. I wou'd observe to you, That these People, Vizt. Ross, Ross, Denning and particularly Thompson, have thus, trespassed in open avowed defiance and contempt of the Law, publickly declaring they have done it, will persist, and that no Officer shall come among them; it is therefore necessary that a trusty, resolute and experienced Marshal be entrusted by the Court, to execute these Precepts.4 If they fail then adieu to all public reservations to the Crown, or private property of individuals. I therefore hope they'l be properly supported by the Sheriffs and other civil officers—it is too important to bear even a thought of disappointment, in bringing them to legal trial. I am resolv'd to carry this prosecution to effect, Mr. Adams will therefore be pleased to pursue the exact rules of the Law, and on our side I'le promise him the { 263 } most steady and vigorous support. Hitherto I have not been able to collect the additions5 to the names complain'd against, but am daily expecting them; these will be sufficient I presume to ground the respective process, and I shall be glad Mr. Adams will write me what further will be requisite to support our Complaints and informations. By the next post I shall send some further Evidence. I have this day wrote to the Judge on this subject, requesting to you, all necessary and legal Assistance. I beg you'd lose no time in these matters, for they are of the greatest consequence to the preservation of the Woods.

Have you yet heard any thing further from Albany of Colo. Bs. supposed tresspasses? We will now make a thorough business of reformation by the Vigor of Law, since these and these only are no other ways to be reclaim'd.6

I am exceedingly oblig'd by your good Father's interest to get the Young man discharg'd, it has made a Family very happy here. If this favor was asked in my name of Commodore Hood, I beg He would be so kind to make my most respectful acknowledgments for his politeness, which I shall at all times rejoice to retaliate. I was uncertain, therefore cou'd not mention anything about it, in a Letter I've lately had occasion to write to Commodore Hood.

My best regards attend your good Parents. I suppose your Father is quite a Farmer and you a Gardener—happy life indeed—and if completely so, long may it be continued to you. Pray be so good to make my Respects to Mr. Adams, I fear myself indebted to him a Letter from Worcester, but hope soon to repay him—better late than never.7

I have prepared Eight Libells, and shall compleat the rest immediately. Those I mean whose Additions and Abodes are made known to me. The others must remain undone till I receive Directions con• { 264 } cerning the Persons. Should be glad if any further Informations are sent, to have the Names, Occupations, and Places of Abode of the Persons, that is, the Towns and Countys they live in. The Number of Trees they have cutt, not the Number of Logs, because if we prosecute for Penalties, those Penalties are to be measured by the Number of Trees, not of Logs, according to the Statutes.2 And also the Town and County where the Trespasses were done. As to the Riot or Assault upon Mr. Ham the officer, you desired that the Rioters might be rigorously prosecuted, but this cannot be done in the Court of Admiralty, which has no Jurisdiction of such Crimes, but must be left to the Kings Attorney and the grand Jury at the next Circuit of the Court of Assize.

In the Informations against Ross, Ross, Denning, and Thompson, I have put fifty Trees for each. In the Minutes I received it is Said they had cut 400 Logs each. It is possible that 50 Trees may not make so many as 400 Logs. But I thought that 50 Trees would probably be 25 times so much as the Culprits were worth, and therefore an omission of 100 Trees or so, would be of no Consequence to the Parties nor to the Crown.

I have given this Business all the Dispatch in my Power, encumbered as I have been during the whole of it, with the Hurry and Confusion of a Court in a wild, noisy, Smoaky Town. I wonder from my Soul what Fiend possessed me, when I left the <calm> Tranquility of Braintree for the Fatigue and Dissipation of Boston? But, hush my murmuring Imagination! I see more and more there is no disputing with Fate and Fortune. These inexorable Deities will dragg, if they cannot lead, and therefore the best Way is to trip it along as light as you can.

You see I feel a great Inclination to be upon a Footing with your Excellency and to be chatting about my self as I used twelve years ago. But I cant conceive what Business I have with a Wife and three Children when I am conversing with your Excellency. Excuse this Freedom and believe me, with great Respect and Esteem, your Excellency's most obedient, huml Servt.,

1. Whether King James's Letters patent to Lodowick Duke Lenox and others,2 are allowed to be good and sufficient to vest the lands thereby granted in the Grantees in Fee simple?

2. Whether their grant to Bradford is also good, and sufficient to vest the lands thereby granted either in him and his heirs in fee simple, or in the Colony of New Plymouth so called, by virtue of the said grant and his surrender.3

3. Whether it is granted that there are now living lawfull heirs of the said Bradford.

4. Whether it is contended, that private persons, mean private persons in opposition to Tenants in common or joint Tenants?4

5. Whether the Duke of Lenox et al. are to be considered as private persons within the meaning of the Charter and Statutes?

6. If a mere Trespasser should cut Masts on land, which was indisputably the property of private persons before 1690, and was, by the King, prosecuted for the penalty could he legally, give in evidence, that the soil on which such trees grew, was the property of private persons before the 7 of October 1690,5 and thereby prevent the Statutes operating against him?

7. If lands were duly granted to a private person or persons before 7 Octr. 1690 and one, not the Owner of such lands, should cut Masts on said lands, could the King by virtue of the Charter and Statutes recover said trees or masts?

8. Whether the Council of Plymouth ever surrendered their patent,6 and when?

9. Whether it is conceded that by force of the Charter or the Stat• { 267 } utes, the Claimants are obliged to derive their title from a date prior to 7 October 1690?

Claim and Demurrer—which admits all in the Claim.2

Mr. Otis. In Event, as important a Cause as ever was decided in America.

The Navy, an important Object, without offence to any Sect or Party.

Charter. Reservation in it.3 We hold all we have under this Charter. No Gentleman will dispute the Validity of this Reservation.

A great deal of Talk and Scribbling about mutual Compact. Should as soon expect good and sound Law from N. Hampton in a N.W. Wind.4

Indian Natives had under God a Right to the Soil. That no good Title could be acquired by sovereign or subject, without obtaining it from the Natives.

No Man has a Right to a Foot of Land, who has not a good Purchase from the Natives, by a Licence from his lawfull Prince.

Proposal of large Forrests to be set apart, by Act of Parliament in Secula Seculorum.5

8. G. 1, c. 12, §5. 1721.6

2. G. 2, c. 35, §1. 2. No Trees to be cutt, excepting such as are the Property of private Persons. 1729.7

Plymouth Patent.

Not in the Power of the King to grant Royalties. King deceived.8 Lit. §117. Socage Tenure. 1. Inst. 85. b.9

Sir F. Barnards Doctrine about holding as of our Manor of East Greenwich in the County of Kent.10

Uncertain where the Bounds of the Patent are. What then?

Will it be said that the Patent is a Grant to private Persons? If so the Grant to Massachusetts, Province of Maine &c. are Grants to private Persons.11

1665 Grant to Boies &c.—a private Transaction.—Mem. by the Way Otis concedes tacitly at least we are within the Exception of Grants made to private Persons. Is forced to deny this to be a Grant to private Persons.12

This no Grant at all. No Estate passed by it. It is void.

Viner. Tit. Corporations B. pl. 1. “None but the King can make a Corporation.”13

E. pl. 1. a Name.14

Mr. Fitch. 8. G.15 secures all Trees, let them be whose Property they will.

Boies had no Title.

Bradford—His associates could not take by the Grant. No Name of a Corporation.

The surrender is no Deed, nor Conveyance. Mem. our Law and Clause in the Charter.16

No Colony of New Plymouth.17

1. Inst. 295. b. “Confirmation doth not strengthen a void Estate.”18

Duely made, or any other lawfull Title.19

Law of Prov. 13. Wm.20

Prov. Charter. Last Clause. “We do hereby reserve to Us, our Heirs and Successors, all Trees of the Diameter of 24 Inches and upwards of 12 Inches from the Ground, growing upon any Soil or Tract of Land within our said Province or Territory, not heretofore granted to any private Persons.”2 The Old Charter of Mass. Bay, was a Grant to private Persons.3

“Growing” when? At the date of the Charter? According to this no Tree was reserved, but such as were then standing and 24 Inches diameter.

No Trees, growing on any “Soil” theretofore granted to any private Persons, are within this Reservation.

The Question is what is meant by the Words “granted to any private Persons” ? Granted by whom? And who are private Persons?

Answer, granted by the general Court either of Mass. Bay, or New Plymouth? To any individual, or Number of Individuals.

All the Lands in the Province, had been granted to Persons, and to private Persons, by the Council at Plymouth. The Patent to Bradford and his associates was certainly a Grant to private Persons4—not to any Corporation according to Mr. Fitch's Doctrine.

1710. 9. Ann, c. 17, §1. “No Person, or Persons &c., do or shall presume to cutt, fell, or destroy, any white or other sort of Pine Tree, fit for Masts, not being the Property of any private Person, such Tree being of the Growth of 24 Inches Diameter, and upwards at 12 Inches from the Earth.” Penalty £100, before a Justice of Peace.5

1721. 8. G, c. 12, §5. “No Person or Persons, &c. do or shall presume to cutt, fell, or destroy any white Pine Trees, not growing within any Township, or the Bounds, Lines or Limits thereof,” &c. without Licence, &c.6

Penalties. 12 Inches and under 3 feet from the Ground £5. From 12 to 18 Inches £10. From 18 to 24, twenty Pounds. From 24 and upwards £50—before the Admiralty.7

Trees, Masts or Logs, found cutt, or felled, forfeited and seized to his Majestys Use.8

§6. repeals 9. Ann, c. 17. So much of it as relates to cutting &c. such White Pine Trees.9

“Not growing” when? In 1721 or at the Time of cutting.

Here a Question is what the Legislature meant by a “Township” ? This Law was intended for the other Colonies, not for this Province. Not supposed that it could affect any private Property. In N. Hampshire, and N. York, where the K's Governor was giving away and selling Townships where he had not made a Township, it remained Crown Land.10

30 years intervened, between the Charter and the Act of 1721. Many Townships were erected in the mean Time which were not private Property before the act 1690. Therefore in all these Townships Trees might be cutt, even of 24 Inches Diameter, and upwards, for the Penalty in the Charter was void.11

1729. 2. G. 2, c. 35, §1. reciting the 8. G, c. 12. and that great Tracts, to evade the Act, had been erected into Townships, enacts that “No Person or Persons, do or shall presume to cutt, fell, or destroy any white Pine Trees, except only such as are the Property of private Persons, notwithstanding the said Trees do grow within the Limits of any Township, laid out, or to be laid out.” &c.12

But no Penalty, nor any Forfeiture, by this Clause, nor any Seizure to the Kings Use. This Exception defeats the Provision.13

§. 2.14 recites the Reservation in the Massachusetts Charter, “of all Trees of 24 Inches Diameter and upwards at 12 Inches &c. growing upon any Soil or Tract of Land, &c. not theretofore granted to any private Person:” to make the Reservation more effectual, enacted that “No Person or Persons within said Prov. of Mass. Bay, or N. England, do or shall presume to cutt, or destroy, any white Pine Trees of 24 Inches and Upwards at 12 Inches &c., not growing within some Soil or Tract, &c. granted to some private Person, or Persons, before 7. Oct. 1690.

“And every Person so cutting &c. such white Pine Trees, not being the Property of private Persons, in any of the Colonies &c.15

“And likewise every Person cutting &c. any white Pine Trees of the Diameter of 24 Inches or upwards at 12 Inches &c., growing in any Tract &c. in said Prov. of N. England or Mass. Bay, not granted to some private Person or Persons before 7 Oct. 1690, &c.16 shall be subject to such and the like Penalties and Forfeitures respectively, as { 274 } are provided in 8. G. 1. for such Persons as cutt &c. Pine Trees, not growing in any Township &c.”17

If the Words in the Charter “not herefore granted to any private Persons,” should be construed to mean only, not granted by Titles which were then good, valid and legal, the Words will mean nothing. For if the Vacation of the Charter18 dissolved the Basis and superstructure together, there was not at the Time of the Charter an Inch of private Property in the Province, it all being revested in the Crown, and the Consequence is that every Pine Tree in the Prov. 24 Inches, is reservd to the Crown.

On the contrary, if they mean, ever granted, and by any means, all the Trees in the Province are excepted out of the Reservation, and the Crown has no Right to one Tree.

The Clause in 2. G. 2, c. 35. “not growing within some soil &c. granted to some private Person or Persons before 7 Oct. 1690,” is liable to all the Difficulties in the Clause in the Charter, and to the same Construction. The Intention must have been, to except out of the Reservation all the Lands which had at any Time before been granted by any General Court, Either of Mass. or N. Plymouth, to private Persons, in short. Many had made great Improvements upon Lands, had cleared them, built Houses upon them &c.

The Vice Admiralty Courts had jurisdiction over a multitude of petty criminal offenses committed at sea by masters and mariners, as well as power to punish contempt of their own authority.1 Offenses that amounted to felony and the crime of piracy were within the competence of a different forum.

In England, since the time of Henry VIII, the trial of “all treasons, felonies, robberies, murders and confederacies,” committed upon the seas, or elsewhere within the Admiralty jurisdiction had been given to royal commissioners, who were to sit within the realm and try such offenses “after the common course of the laws of this realm, used for treasons, felonies, murders, robberies and confederacies of the same, done and committed upon the land within this realm.” Trial was to be upon indictment of a grand jury, before a petit jury to be summoned by the commissioners.2 By the middle of the 18th century, procedure under this statute had become formalized as an Admiralty Session at the Old Bailey, where the judges of the common law courts, who were appointed commissioners, sat with a jury for the trial of maritime offenses, dispensing substantially the same brand of justice that shoregoing offenders received.3

Since the distance of the colonies from England made transportation of offenders apprehended there a matter of great difficulty, provision was made in a statute of 1700 for the trial in the colonies of “all piracies, felonies, and robberies” committed upon the seas. Commissioners to be appointed by the Crown in each colony were given authority to remit suspected persons to custody and to call a Special Court of Admiralty, which would have power to summon and try offenders “according to the civil law, and the methods and rules of the admiralty.” The statute provided a procedure for the court, defined certain offenses, and gave the commissioners under it or the Act of Henry VIII exclusive jurisdiction of such offenses within the colonies.4 To prevent a possible jurisdictional doubt, an act of { 276 } 1717 provided that all offenses under the 1700 statute might be tried according to the method laid down in the Act of Henry VIII.5

During the 18th century the Crown issued standing commissions in each colony or Admiralty district for trial under the provisions of the Act of 1700. The commissioners were a roster of all of the political leaders of the colony or district involved, usually including the Governor, Lieutenant Governor, Secretary, Chief Justice, Judge of Admiralty, members of the Council, officers of the royal navy within the district, and various customs officers.6 In Massachusetts when the time came to issue a new commission after the death of George II in 1760, this practice was varied. The Council was no longer included, allegedly because Governor Bernard had complained to the Admiralty that its members had joined with the House in opposing the activities of the Vice Admiralty Court.7 The commission that was issued on 14 January 1762 covered Massachusetts, Rhode Island, and New Hampshire, and so included appropriate officers from all of those colonies.8 It was before Special Courts of Admiralty called pursuant to this commission that Adams tried two of his most unusual criminal cases, Rex v. Corbet, No. 56, and Rex v. Nickerson, No. 57.

British impressment of American seamen, a grievance normally associated with the War of 1812, actually antedated even the Revolution, as the present case shows. Early in the morning of Saturday, 22 April 1769, H.M. Frigate Rose, patrolling on the high seas off Marblehead, intercepted and stopped the brig Pitt Packet (Thomas Power master), owned by Robert “King” Hooper, manned with a crew of Irishmen, and homeward bound { 277 } from Cadiz, Spain, with a cargo of salt.1 Henry Panton, the lieutenant, or executive officer, of Rose, came aboard with some sailors and marines, asked for the vessel's papers, and commenced a search. In the forepeak, a small space under the weather deck between the stem and the main hold, he discovered crewmen Michael Corbet, Pierce Fenning, John Ryan, and William Conner, variously armed with fish gig, musket, hatchet, and harpoon. To Panton's threats and entreaties, they remained obdurate and menacing; even when the officer secured reinforcements from Rose and commenced to have the bulkhead torn down, they refused to budge.

According to John Adams' later reminiscences of the testimony at trial, Corbet drew a line in the salt and told Panton, “ 'If you step over that line, I shall consider it as a proof that you are determined to impress me, and by the eternal God of Heaven, you are a dead man.' 'Aye, my lad,' said the lieutenant, 'I have seen many a brave fellow before now.' Taking his snuffbox out of his pocket, and taking a pinch of snuff, he very deliberately stepped over the line, and attempted to seize Corbet. The latter, drawing back his arm, and driving his harpoon with all his force, cut off the carotid artery and jugular vein, and laid the lieutenant dead at his feet.”2

But the truth, at least according to the actual testimony at the trial, set out in Document V, suggests that Panton, rather than striding into danger, was sitting on the salt, there being no room to stand, and that Corbet, like his friends, was “pushing” at the men who were tearing apart their fortress. At least one pistol had been fired into the forepeak, and it could be only a matter of time before someone was seriously hurt. In the confusion, Corbet thrust with his harpoon, striking Panton, who was carried topside where he bled to death within two hours. Corbet and the others meanwhile were gradually subdued, and that only because, it was rumored, they had drunk themselves into a stupor.3

Now the authorities faced the serious problem of properly dealing with the sailors. It was clear that they could not be indicted and tried in one of the common law courts, because the offense had not been committed within the bounds of any county, but the statutes providing for Admiralty jurisdiction of such offenses left the question of jury trial in doubt. The { 278 } original Act of Henry VIII specified a jury trial before a special Admiralty court in England;4 a statute passed in the time of William III indicated that trial in the colonies ought to be without a jury.5 Finally, an Act of George I seemed to restore the jury right.6 Predictably, the defendants pressed for a jury trial, while the Crown advocates tried to bar it.

But even if the mode of trial were settled, there still remained two knotty issues: Of what crime should the men be accused, and by what substantive law should they be tried? Adams, who with James Otis defended the sailors, was in later years to claim that the successful result of the trial hinged on his discovery of a statute which forbade impressment of American seamen, and on the court's fear that it might have to apply that statute.7 It is certainly true that the statute in question seemed to render Rose's press gang illegal; that being so, then Panton had no authority to threaten or attempt to seize Corbet, and the killing could be justified on grounds of self-defense. But the issue appears to have been current long before the trial. If one can believe “A Journal of the Times,” the loyalists were contending as early as 5 May 1769 that Panton had gone aboard, not to search for seamen, but to inspect for contraband,8 an argument which the Crown advocates, Samuel Fitch and Jonathan Sewall, were to echo at the trial. And indeed, almost a year before Panton's death, the “Instructions of the Town of Boston to their Representatives,” written by Adams himself, had set out the entire relevant section of the act.9

Much depended on the question of the applicable substantive law. If the common law applied, then, unless the homicide were justifiable, the accused would be liable to conviction of manslaughter; and the statutes left it unclear whether in trials before the Special Admiralty Court the benefit of clergy could be pleaded, as it could have been at common law. If the trial were, on the other hand, to be held according to the civil law (which usually controlled ordinary Admiralty proceedings), the killing was { 279 } punishable by death only if it was murder; there was no death penalty for the crime which the common law called manslaughter (intentional, unjustifiable, inexcusable homicide without malice).

The Crown officers proceeded carefully. Panton was barely in his King's Chapel grave10 when Governor Bernard, Lieutenant Governor Hutchinson, Commodore Samuel Hood, Province Secretary Oliver, and Admiralty Judge Auchmuty, Commissioners for the Trial of Piracies, went aboard Rose to confer with Captain Caldwell.11 Shortly thereafter, an account of the affair, based, as it later developed, on the various depositions of Rose's people, appeared in the tory Boston Chronicle and so angered the patriots that they attempted to counter it with a rehash of an earlier version which everyone, including the Chronicle, had already published.12

In the face of conflicting documents, Adams' shifting memory, and the disappearance of the pleadings, the exact chronology of the litigation is hard to trace. However, the following seems probable. “Articles” were drawn up against each defendant by Ezekiel Price, Register (Clerk) of the Court of Vice Admiralty. On Tuesday, 23 May 1769, the Special Court of Admiralty, called pursuant to the Commission for the Trial of Piracies, convened. In addition to the five Commissioners who had visited Rose, the court consisted of Governor John Wentworth and Councilors Jonathan Warner and George Jaffrey of New Hampshire; Judge John Andrews of the Rhode Island Court of Vice Admiralty; Collectors Joseph Harrison of Boston, John Nutting of Salem, and Robert Trail of Portsmouth. However, at the first session, only Bernard, Hutchinson, Hood, Auchmuty, Oliver, Trail, and Nutting attended.13 The jury-right issue having been raised early, the court adjourned to Thursday, 25 May, meanwhile hearing argument (Document II); then it further adjourned to Monday, 29 May, when Adams filed his plea to the jurisdiction (Document III), upon which the court “thought proper to take the same under consideration,” and adjourned to 14 June.14

Finally, on Wednesday, 14 June 1769, the trial commenced in the Court House. “No trial had ever interested the community so much before, excited so much curiosity and compassion, or so many apprehensions of the fateful consequences of the supremacy of parliamentary jurisdiction, or the intrigues of parliamentary courts. No trial had drawn together such crowds of auditors from day to day; they were as numerous as those in the next year, at the trials of Preston and the soldiers.”15

The court quickly announced that it had overruled the pleas, and pro• { 280 } ceeded to trial.16 The taking of evidence commenced immediately and continued for three days; the testimony seems to be substantially reproduced in Adams' minutes (Document V). In contrast to the common-law practice, the evidence was “taken down by the clerk and the counsel in writing.”17 It should be noted that none of the accused testified. There is no evidence that any attempt was made to call any of them as witnesses on behalf of any of the others. Of course, no accused could testify in his own behalf, even at common law; but it was customary at common law when a number of prisoners were tried on the same facts for the court to acquit those whom the evidence did not materially affect, in order that the others might call them as witnesses.18

On Saturday, 17 June, Adams rose to make the argument which is detailed in Document VI. He had barely commenced, and had begun to argue that the killing was only justifiable homicide, when, as he loved to tell in later years, Hutchinson moved for adjournment. The court retired for four hours, then returned with its decree: Justifiable homicide, and the prisoners set at liberty. Although Adams insisted that it was fear of the nonimpressment statute which swayed the court, Hutchinson gave a different reason: “It appeared that neither the lieutenant nor any of his superior officers were authorized to impress, by any warrant or special authority from the lords of the admiralty; and the court (the commanding officer of the king's ships being one of the commissioners) was unanimously of opinion that the prisoners had a good right to defend themselves, and, though the fact of killing was fully proved, that they ought to be acquitted of murder, with which they were charged, and that, at common law, the killing would not have amounted to manslaughter.”19 In other words, Adams' substantive legal argument prevailed.

Immediately upon the acquittal, Ryan, whose arm had been broken by a pistol ball in the fracas, brought an action against Midshipman William { 281 } Peacock, who had fired the shot. The Sheriff rowed out to Rose and seized Peacock personally, taking £300 bail in lieu of an arrest.20 Commodore Hood himself sought vainly to buy Peacock's peace, writing Adams (who represented Ryan) and offering his client a cook's place in the fleet, which, with its perquisites, was worth £30 a year. But Ryan refused “because he had fallen in love and would be married,” and the matter was finally settled for £30.21

Adams always remembered Corbet's case warmly. He considered it more important than the Massacre trials,22 and he never forgot the honest testimony of the British sailors (some of whom testified in behalf of the prisoners) and their apparent abhorrence of the press gang.23 At one time, he contemplated publishing a report of the case. Characteristically, he noted: “A great Variety of useful Learning might be brought into an History of that Case—and the great Curiosity of the World after the Case, would make it sell. I have half a Mind to undertake it.”24 Apparently, { 282 } he did take some steps along those lines, because the documents here set out, particularly Documents II and VI, indicate careful expansion of legal jottings and courtroom minutes. Document I seems to be the rough notes on which he based his argument, expanded in Document II. Document III is the plea, and Document IV additional pleadings in the nature of demurrer and joinder. Adams' actual trial minutes are Document V, while his final argument is Document VI.

The editors have decided to place the litigation materials in roughly chronological order, and have therefore divided some of Adams' documents at appropriate places. The MS trial minutes (Document V) contain also a series of eight leaves in Adams' hand which Brooks Adams called “supplementary notes.”25 They appear, in fact, to be Adams' digest of the various witnesses' depositions. Thus the summary of Hugh Hill's testimony commences: “Like the Master's till. . . .” And John Roney's starts: “As the Master.” In the present arrangement of the materials these have been placed as footnotes to each respective witness' trial testimony.

It is tempting to speculate that these notes are evidence of pre-trial discovery techniques not usually associated with traditional Admiralty practice.26 However, a more probable view is that, all the witnesses being mariners, each deposition had been taken in rei perpetuam, against the possibility of the witness' being at sea when the case came to trial.27

28. H. 8, c. 15. For Pirates.

The Statute on which this Court is founded is 11th. & 12th. Wm. 3rd, C. 7. An Act for the more effectual suppression of Piracy.

6. Ann, c. 37, §9. Impresses in America prohibited. This act perpetual, 1. because of the Title. 2. the Preamble, in two Parts, for Ad• { 283 } vancement of Trade, and increase of Shipping and Seamen. 4. the same Clauses in their Nature temporary, yet others perpetual. Others expressly limited to the duration of the War. This § not §4. No limitation in the Act itself to Years, or other Term. 4. G, c. 11, §7. Sugar Colonies Act. 19. G. 2, c. 30, §1.2

Fosters Crown Law.

Necessary Homicide. 2. Domat. 638 §6. Woods Inst. civ. Law 270. Cod. Lib. 9. Tit. 16. 2. 3. 4 &c.

Civil Law, relative to Defense and Provocation.

2. Domat 638. §6. Woods Inst. civ. Law 270. Cod. Lib. 9. Tit. 16. 2. 3. 4. &c. Note 46. Gail Page 503. Maranta Page 49, Pars 4. <Dig. 1.> Dist. 1. 77.

Com. Law justifiable self Defense.

1. Hawk. 71. §4. middle. §21. killing ravisher. page 72 §23. towards the End. §24. page 75. §14.

Keyling page 128. bottom page 136. Top. Buckners 136. 3. bottom. 3dly. 59. Hopkin Huggetts. 2. Ld. Ray. Tooleys Case. Holt 485. 484. Faster 312—316—vid. Foster 292, the smart &c. for Manslaugter, also 296.

Calvin. Tit. Culpa.3

7. W. 3, c. 4. An Act for Grand Jurors serving at Quarter Sessions. Clerk of the Peace of each County shall annually 15 days before the day for holding the Court issue out Writs to the Constables of Towns, to warn a Meeting of the Inhabitants, for chusing one or more Grand Jurors.4

Grand Jurors Oath 4. W. & Mary. c. 16.5

Temp[orary] Laws. 23. G. 2, c. 2. better regulating the Choice of Petit Jurors.6

28. H. 8, c. 15. For Pirates. After the common Course of the Laws of this Realm. Commissioners to enquire, by the Oaths of 12 good and lawfull Inhabitants, in the Shire limited in their Commission, as if such Crimes committed on Land. And Tryal by 12 lawfull Men, inhabited in the shire limited within such Commission. Expressly excluded clergy. Tryals in 5. Ports shall be <in> by Inhabitants,7 &c.

11. & 12. W. 3, c. 7. Act for more effectual suppression of Pyracy.

4. G. c.

18. G. 2, c. 30.8

Otis. 2 Salk. The Word “may,” shall be construed “shall.” Tit. Statutes and their Construction.9

Tryal of Stede Bonnett, before Judge Trott.

1718. 5. G. 1. V. 6. 156.10

Consent of Parties would cure all Difficulties, Vin. Tit. Tryal.11

28th. Hen. 8th. c. 15. “For Pirates.”2 Where Traytors, Pirates, Thieves, Robbers, Murtherers, and Confederates upon the Sea, many times escaped unpunished, because the Tryal of their offences, hath heretofore been ordered, judged and determined before the Admiral, or his Lieutenant or Commissary, after the Course of the civil Laws, the Nature whereof is, that before any Judgment of Death can be given against the offenders, either they must plainly confess their offences, (which they will never do, without Torture or Pains) or else their offences be so plainly and directly proved by Witness indifferent, such as saw their offences committed &c.3 for Reformation whereof be it enacted, That all Treasons, Felonies, Robberies, Murthers, and Confederacies, hereafter to be committed in or upon the Sea, or in any other Haven, River, Creek, or Place where the Admiral or Admirals, have or pretend to have Jurisdiction, Authority, or Power, shall be enquired, tried, heard, determined, and Judged, in such Shires and Places in the Realm, as shall be limited, by the Kings Commission, &c. as if the Offence done upon Land, &c. after the common Course of the Laws of this Realm.4

§. 2d. to enquire by the Oaths of twelve good and lawfull Men &c. in the shire limit in the Commission.5

11. and 12. W. 3, c. 7. An Act for the more effectual Suppression of Piracy.6

All Pyracies, Felonies, and Robberies, committed in, or upon the { 286 } Sea, or in any Haven, River, Creek, or Place, where the Admiral or Admirals have Power, Authority, or Jurisdiction, may be examined, enquired of, tried, heard, determined, and adjudged, [according to the directions of this act,] and in any Place at sea, or upon the Land, in any of his Majestys Islands, Plantations, Colonies, Dominions, Forts or Factories to be appointed for that Purpose by the K's Commission &c. under the great seal of England, or the Seal of the Admiralty of England, directed to all or any of the Admirals, Vice Admirals, Reer Admirals, Judges of Vice Admiralties, or Commanders of any of his Majestys Ships of War, and also to all or any such Person or Persons as his Majesty shall please7 to appoint; &c. which said Commissioners shall have full Power jointly or severally, by Warrant under the Hand and seal of them or anyone of them to commit to Safe Custody, any Person &c. vs. whom Information of Pyracy, Robbery or Felony upon the Sea shall be given upon oath &c.8 and to call and assemble a Court of Admiralty on shipboard, or upon the Land &c.9 and such Persons so assembled, shall have full Authority, according to the Course of the Admiralty, to issue Warrants for bringing any Person accused of Piracy or Robbery before them, to be tried &c.10 to summon, and examine Witnesses &c. and to do all Things necessary for the Hearing and final Determination of any Case of Piracy, Robbery, and Felony; and to give Sentence and Judgment of Death, and to award Execution [of the offenders convicted and attainted as aforesaid], according to the civil Law, and the Methods and Rules of the Admiralty.11

This Statute is the Foundation of the Special Commission, and of the present Proceeding, and upon it a Question has been made by Mr. Otis whether the Prisoners have not a Right to a Jury? He says that Magna Charta, in a Case of Life, at least must be expressly repealed, not by Implication, or Construction only. And that in England a Jury is summoned every day for the Tryal of such offences committed at sea. But I think that the statute of 28th H.8. before cited explains this Difficulty. And this Case seems to be but one Instance among many others, of the partial Distinctions made between British subjects at Home and abroad. The civil Law, The Course of the Admiralty, and { 287 } the Methods and Rules of the Admiralty, will be construed to take away the Benefit of a Jury.—†Turn to the last Leaf but one.12

† Mr. Otis, from his first Retainer in the Cause, has been very sanguine, to move for a Jury. He has mentioned his Resolution in all Companies, [and] last Week at Plymouth he mentioned it to the Lt. Govr. and the rest of the Judges.13 Mr. Fitch happening to hear of our Design to move for a Jury, went to rummaging up Acts of Parliament to satisfy himself, and found the 4. of G, c. 11. An Act for the further preventing of Robbery &c. and for declaring the Law upon some Points relating to Pirates.14 In the 7th section of this statute “It is hereby declared, that all and every Person and Persons who have committed or shall commit any offence, or offences, for which they ought to be adjudged, deemed and taken to be Pirates, Felons, or Robbers, by an Act made in the Parliament holden in the 11. and 12. Years of [the reign of his late majesty King] Wm. 3d, intituled 'An Act for the more effectual suppression of Piracy' may be tried and judged for every such offence, in such Manner and Form as in and by an Act 28. H. 8. is directed and appointed for the Tryal of Pirates.”15 This statute Fitch discovered to Sewall and Sewall shewed it to the Governor and Lt. Govr., and the rest of the Court, the first Morning of the Courts sitting, in the Council Chamber. They were all struck and surprised, and the Lt. Govr. observed that this Statute cleared up, what had always to him appeared a Mistery. In the State Tryals, the Tryal of Stede Bonnet before Judge Trott at Carolina 1718. 5. G. 1.—V. 6. 156. It being the next Year after the statute, Bonnett had a Grand and Petit Jury.16

In the Council Chamber the Court, however agreed, that they would go into the Court House and take the oaths &c. and then the Court would publickly propose a Jury. This was done and the statutes 28. H. 8. 11. & 12. W. 3. and 4. G. 1. were read and then the Commission &c. and then the Govr. proposed, to adjourn the Court to Thurdsday,17 { 288 } and to hear Council [i.e. Counsel] this afternoon in the Council Chamber, upon the subject of a Jury.

In the afternoon We accordingly attended, and a Difficulty was started by the Lt. Governor about the Venire's. Whether they should be directed to the Sherriff, to summon a Jury as in England, or whether the Venires should issue in any manner analogous to the Laws of this Province relative to this subject? In the Afternoon, We had the argument, and the whole Court seemed convinced that a Jury must be had. The Govr. indeed, talked that they might be sent to England for Tryal, &c.

But the next Morning, when Mr. Otis was to have prepared and produced a Venire facias to the Sherriff to return a Jury, We found all aback. The whole Court, Advocate Genl. Mr. Sewall, and Mr. Fitch all of opinion that we had been all wrong, and that a Jury could not be had. The Lt. Govr. had in the Course of his Lucubrations, discovered this great secret, that by Law two Ways of Tryal are pointed out and provided, one by 28. H. 8., the other by 11. & 12. of W. 3. and that his Majesty may grant a Commission in Pursuance of Either. That this Commission was expressly limited to 11. & 12. W. 3. and therefore could not proceed, according to 28. H. 8.

Humbly shews Michael Corbit of Marblehead in the County of Essex, Mariner that this Hon'ble Court ought not to take Cognizance of the Matters and Things sett forth and alledged in the said Articles exhibited against him by Ezekiel Price Gentleman, because the said Michael says, that by an Act of Parliament made in the Twenty Eighth Year of the Reign of King Henry the Eighth, it is among other Things enacted, “That all Treasons, Felonies, Robberies, Murthers, and Confederacies, hereafter to be committed in or upon the Sea, or in any other Haven, River, Creek or Place where the Admiral or Admirals, have or pretend to have Power, Authority or Jurisdiction shall be inquired, tried, heard, determined, and judged, in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same, in like Form and Condition, as if any such offence or offences had been committed or done in or upon the Land; and such Commissions shall be had under the Kings Great Seal, directed to the Admiral or Admirals, or to his or their Lieutenant, Deputy, and Deputies, and to three or four such other substantial Persons, as shall be named or appointed, by the Lord Chancellor of England for the Time being, from Time to Time, and as oft as need shall require, to hear and determine such offences after the common Course of the Laws of this Realm, used for Treasons, Felonies, Murthers, and Confederacies of the same, done and committed upon the Land within this Realm,” And “that such Persons to whom such Commission or Commissions, shall be directed, or four of them at the least, shall have full Power and Authority to enquire of such offences, and of every of them, by the oaths of Twelve good and lawfull Inhabitants in the shire limited in their Commission, in such like manner and Form, as if such offences had been committed upon the Land within the same shire, and that every Indictment found and presented before such Commissioners, of any Treasons, Felonies, Robberies Murthers, Manslaughters, or such other offences, being committed or done, in or upon the Seas, or in or upon any other Haven, River or Creek, shall be good and effectual in the Law and if any Person or Persons happen to be indicted for any such offence, done or hereafter to be done upon the seas, or in any other Place above limited, that then such order, Proscess, Judgment and Execution shall be used, had, done and made, to and against every such Person and Persons, so being indicted, as against Traytors, Felons and Murtherers, for Treason, Felony, Robbery, Murther or other such offences done upon the Land, as by the Laws of this Realm is accustomed; and that the Tryal of such offence or offences, if it be denied by the offender or offenders, { 290 } shall be had by twelve lawfull Men, inhabited in the shire limited within such Commission, which shall be directed as is aforesaid, and no Challenge or Challenges to be had for the Hundred; and such as shall be convict of any such offence or offences, by Verdict, Confession or Proscess, by authority of any such Commission, shall have and suffer, such Pains of Death, Losses of Lands, Goods and Chattells, as if they had been attainted and convicted of any Treasons, Felonies, Robberies, or other the said offences done upon the Lands.”2

And the said Michael further shews, that by another Act of Parliament made and passed in the Parliament holden in the Eleventh and Twelfth Years of the Reign of King William the third, it is, among other Things declared and enacted “That all Piracies, Felonies, and Robberies committed in or upon the sea, or in any Haven, River, Creek or Place, where the Admiral or Admirals have Power, Authority or Jurisdiction, may be examind, enquired of, tried, heard and determined and adjudged, according to the Directions of this Act, in any Place at Sea, or upon the Land, in any of his Majestys Islands, Plantations, Colonies, Dominions, Forts or Factories, to be appointed for that Purpose by the Kings Commission or Commissions under the Great Seal of England, or the Seal of the Admiralty of England, directed to all or any of the Admirals, Vice Admirals, Reer Admirals, Judges of Vice Admiralties, or Commanders of any of his Majestys Ships of War, and also to all or any such Person or Persons, officer or officers, by Name, or for the Time being, as his Majesty shall think fit to appoint, which said Commissioners shall have full Power jointly or severally, by Warrant under the Hand and Seal of them, or any one of them, to commit to safe Custody any Person or Persons against whom Information of Piracy, Robbery, or Felony upon the sea, shall be given upon oath which oath they or any one of them, shall have full Power, and are hereby required to administer and to call and assemble a Court of Admiralty on ship board, or upon the Land, when and as often as occasion shall require; which Court shall consist of seven Persons at the least” and “that such Persons called and assembled,” as in said Act is particularly described, “shall have full Power and Authority, according to the Course of the Admiralty, to issue Warrants for bringing any Persons accused of Pyracy or Robbery before them to be tried, heard and adjudged and to summon Witnesses, and to take Informations and Examinations of Witnesses upon their oath; and to do all Things necessary for the Hearing and final Determination of any Case of Pyracy, Robbery and Felony; and to give sentence { 291 } and Judgment of Death and to award Execution of the offenders convicted and attainted as aforesaid, according to the civil Law, and the Methods and Rules of the Admiralty; and that all and every Person and Persons so convicted and attainted of Pyracy or Robbery, shall have and suffer such Losses of Lands, Goods and Chattells, as if they had been attainted and convicted of any Piracies, Felonies and Robberies, according to the aforementioned statute, made in the Reign of King Henry the Eighth.”3

And the said Michael further saith that by another Act of Parliament made and passed in the fourth Year of the Reign of King George the first it is among other Things declared, “that all and every Person and Persons who have committed or shall commit any offence or offences, for which they ought to be adjudged, deemed, and taken to be Pirates, Fellons, or Robbers, by an Act made in the Parliament holden in the Eleventh and Twelfth Years of the Reign of his late Majesty King William the Third, intituled, 'an Act for the more effectual suppression of Pyracy,' may be tried and judged for every such offence in such manner and Form as in and by an Act made in the twenty Eighth Year of the Reign of King Henry the Eighth is directed and appointed for the Tryal of Pyrates, and shall and ought to be utterly debarred and excluded from the Benefit of Clergy, for the said offences; any Law or statute to the Contrary thereof in any wise notwithstanding,” and “that this Act shall extend to all his Majestys Dominions in America, and shall be taken as a public Act.”4

Now the said Michael says that the Commission whereby this Honourable Court is constituted authorises it, to proceed only according to the Directions in the said Act made in the Reign of King William the third, according to the Course of the Admiralty, According to the civil Law, and the Methods and Rules of the Admiralty;5 and that the Matters and Things contained in the Articles aforesaid against the said Michael, ought now by Law to be heard and tryed, by a Court constituted according to the said Act made in the Reign of King Henry the Eighth, and ought to be tryed and judged in such manner and Form as in and by the same Act is directed and appointed, that is to say by a grand Jury and a petit Jury of the said County of Suffolk and as by the Laws of the Realm of Great Britain is accustomed.

Wherefore the said Michael <says> prays Judgment if this Court { 292 } will take any further Cognizance of the Matters and Things charged upon said Michael in said Articles.6

And the said Ezekiel Price says, that he to the said plea of the said John Ryan above pleaded to the Jurisdiction of this honorable Court, has no necessity nor is he oblidged by the Law of the Land in any manner to answer, because he says that the same plea is not sufficient in Law to put this honorable Court from taking further Cognizance of the Matters and Things contained in the Articles aforesaid and this the said Ezekiel is ready to verify; wherefore for want of a sufficient plea in this behalf, he prays this honorable Court would take further Cognizance of the Matters and Things charged upon the said John Ryan in the Articles aforesaid; and that the said John Ryan may be put to answer to the Same.

And the said John Ryan says, his said Plea is Sufficient to put this Honorable Court from taking further Cognizance of the Matters and Things contained in the Articles aforesaid, and thereof prays Judgment.

Mr. Fitch.

About the Time of the Blow—the 2d Pistol was fired.

Commission from Commissioners.

Instructions.

Witnesses.

Peter Bowen. I have seen all the Prisoners on Board the Brigg Pit Packet on the 22d. April last. In the Fore Peek. I knew Lt. Henry Gibson Panton, lately deceased. He was Lt. of the Rose Man of War. He was on Board the Brigg Pit Packet when I saw those Men.

Mr. Panton went on Board, and I with him. We enquird for the Master, who proved to be the Person we spoke to. Master, Mr. Panton and I went down in the Cabin. When below Mr. Panton enquired from where the Brig came? Master made answer from Calais [Cadiz?] bound to Marblehead. Mr. Panton then asked him for his Bills of Lading, clearance, and other Papers. Master answerd he had no Papers except a Bill of Health which he produced. Next Mr. Panton asked how many Men he had on Board? Master answerd 6 before the Mast besides himself and Mate. He then asked for his Log Book? Master produced it. Mr. Panton desired the Hatchways and scuttles2might be opend, and he would send his People down to search for uncustomd Goods or to that Purpose. Master said it should be done. Mr. Panton and I went upon Deck leaving the Master in the Cabin. Mr. Panton desired the Mate to send all his Hands aft. At the same time orderd the Roses People to go below to search. The Mate said he would send what Hands there was aft. Mr. Panton said he must send 'em all. Mate said he could not send 'em all aft but he would go and call them. Mate went forward. Mr. Panton orderd me to go with him. Mate called the People, but none of them answerd, of which the Mate went aft and informed Mr. Panton.3Mr. Panton said We must search for them. Lights were got. Mr. Panton orderd me with 2 of the Boats Crew to search in the main hold for the Men. We searched. We found nor heard none. I came out of the main Hold and went forward. Gibson, one of the Boats Crew said to me theres a Scuttle, pointing to one be• { 294 } fore him. We orderd him and Churchill another of the Boats Crew, to unlay. Churchill taking up the Scuttle, called out “Here they are,” and desired the Men he saw to come up. Briggs People swore they would not, meaning those in the fore Peek, and that the first Man that dared to approach em, they would cut his Limbs off. Which of em said this I cant tell. They all spoke to that Purpose—at the same Time shewing a Hatched [Hatchet,] Harpoon, a Musquet and a Fish Gigg. I then said, the Lt. wanted to see them and desired em the Prisoners to come upon deck. They swore they would not. I informed Mr. Panton of what happend. Mr. Panton, hearing it, went forward. I went with him. Mr. Panton mildly desird the Briggs People the Prisoners to come out— which they refused to do, swearing they would die in the Hold before they would suffer themselves to be impressed. Mr. Panton then said he wanted to search the Hold, and asked them to let him come down where they were. They repeated to him what they had threatened to me and shew him their Weapons. Mr. Panton desired a 2d. Time that they would come out, adding if they persisted in refusing he must oblige them. One and all of them said to Mr. Panton if he brought any Arms against them, he should be their Mark and they would put his Lamp out first. Mr. Panton ordered the Roses Boat to be manned and sent Mr. Stanhope aboard the Rose for Assistance, which I did. I returned to Mr. Panton, and found him talking with the Prisoners, endeavoring to perswade them to come out, explaining the folly of being obstinate. The Prisoners said several Times in my hearing, if there were 50 men armd they would not be taken, and told Mr. Panton if he had any Regard for his own Life, he would let them pass. He said it was his Duty and he could not do it. They said they knew he was Lt. and knew his orders, and desird them again to let them pass, swearing and repeating their Threats against him particularly. Mr. Panton had a Candle in his Hand, the Place being very dark, which he gave to one of the Prisoners. Desird they would let him see what sort of a Place they were in. One of em took the Candle and lighted it about where they stood. Mr. Panton said He could not see what sort of a Place it was, and wanted to go down. They said he should not go down, and if he attempted it they would shoot him, and Pierce Fenning presented the Musquet and said it was loaded with sluggs and primed. Then returned the Candle. Mr. Panton Aye! will you shoot me? In a joking, chearfull Manner, added, I will take a Pinch of Snuff first, and ordered me to go and see if the Boat was come back. I informd him the Boat was just returnd. Mr. Peacock, Mr. Stanhope, Forbes the Master at Arms, and the Boats Crew. They all came below. { 295 } Mr. Panton asked the Prisoners if they would surrender. They said they would not. Mr. Panton orderd Mr. Peacock and the Boats Crew to go below in the main hold, and open the Bulkhed where the Prisoners were. As soon as the Crew began to work upon the Bulk head, the Prisoners all of em at different Times said they would shoot the first Man that made a Hole. One of em, which I cant say, advised the others to shoot the Lt. first and divide themselves, 2 to defend the Scuttle and one the Bulk head. One of those at the Scuttle presented a Musquet, the other a Fish gig. One from within called out fire. Mr. Panton and I having our swords drawn, I with my sword struck the Musquet out of its Direction at Mr. Panton. Mr. Panton came over towards me and orderd the Scuttle to be laid down, which Woodgate one of the Boats Crew did and stood upon it, to prevent their Doing any Mischief that Way. Mr. Panton and I went below to see what Mr. Peacock and the Crew had done there. The Master att Arms had made an opening with an Iron Crow in the Bulkhead, and having made a small one, one from within presented a Musquet thro it, at him, <threatening> to the Master at Arms, threatning to shoot him. When we went below the Roses People had seperated themselves, at each End of the Bulk head. Mr. Panton went to the starboard side, where Mr. Peacock, and some of the Crew were. I went to the Larbord side where Forbes, Silley and Sinclair were. The Man who presented his Musquet at Forbes, went over to the other side, upon which Forbes took up his Crow and broke off a large Plank, and then gave the Iron Crow to Sinclair and took up his <gun> Pistol. One within presented a Musquet at Sinclair, which he snapped 3 times, the others calling out to fire damning the Peice for not going off. Silley got hold of the Musquet, but by himself could not keep it—those within drawing it from him. Then Silley went to Mr. Pantons side. Almost immediately after I heard the Report of a Pistol which Silley at that time said was fired by him, without Ball at the Man who threatned the Lt. so hard, who the Man was I cant tell, being on the other side. Mr. Panton, all this time, frequently begging of them to surrender or he must clear his Way to them. Some of them again said they would shoot Mr. Panton first. And Forbes the Master at Arms <afterwards> next, before they would be taken. Upon Hearing the Report of a 2d Pistoll I turned about and saw Mr. Panton had been wounded in the Throat. I did not see the Harpoon. I saw the shape of the Harpoon upon the Throat—and [he] had fird a Pistol as I then thot, at the receiving of that Wound. Mr. Peacock was with him, and Ransford one of the Boats Crew endeavouring to stop the Effusion of Blood with their Hankerchiefs. Then went on deck. With Help of 2 { 296 } Men of the Boats Crew, I carried Mr. Panton to the Briggs Cabbin, where he expird in less than 2 <Minutes> Hours. I believe the Wound I saw was the Occasion of his Death.

Qu. by <Mr. Fitch> Mr. Trail.4 Did Mr. Panton declare he wanted to search for uncustomd Goods, when the Candle was handed down.— He did not at that Time.

Q. by me. Do you know what orders Mr. Panton had before he left the Rose, and by whom given.—No.

Q. Did Mr. Panton ask the Master if he had any favour5 for any of his Crew and if he had he would not take him.—No.

Q. Did you hear Mr. Panton say he did not intend to have taken more than 2, but as they had hid he would take all 4.—He did not tell the Master so, but he told the Prisoners so while the Boat was gone aboard the Rose.

Q. Did Mr. Panton perswade the Men to go on board the Man of War.—He told em they should have good Usage if they would go.

Q. Did he say, after the Candle was moved about did [he] not say he was satisfyd there was no uncustomd Goods there. No.

Q. What arms had Mr. Panton and his Party, when they went first on board.—No Body but Mr. Panton had any when they first went on board, and he only a sword.

Q. What Arms were brot on bord the Brigg by the Boat, when she came the 2d. time?—Cutlasses, Pistolls and Musquets—how many I cant say.

Q. Any of Mr. Pantons Party used any threatning Expressions to the Prisoners, and what. They said if they hurt any of em with their Weapons they would fire upon them. This was before the first Pistol.

Q. Any of Mr. Pantons Party presented their Pistolls at the Prisoners, or made any Rushes at them with their swords or Hangers before the fatal Blow was given.—They kept their Pistals in their Hands, but the Men had no swords, and none made any Pushes.

Q. Had all the Boats Crew Pistols.—I cant say that. The Lt, 2 Midshipmen, the first Time, there were more than the Boats Crew [the] second Time. Boats Crew 7. 2 Midshipmen. 4 more might come the 2d. Time. <About> 10 the first Time.

Q. Were all the Persons from the Man of War below.—Not all the Time I believe. They were about the ship.

Q. Did not the Prisoners often say they did not want to hurt him or { 297 } his Men, they only wanted their own Liberty'?—Yes. I dont know that I heard 'em more than once.

Q. Whether they beggd and pleaded that the Lt. would let 'em alone.—Yes.

Q. When the Prisoners said they would die before they would be pressed, did the Lt. tell 'em he did not want to impress 'em, but only wanted to look for uncustomed Goods.—No.

Q. Did the Lt. ever tell em he did not want to impress them?—No never in my Hearing.

Q. Was the Opening in the Bulkhead such, that the Lt. might see into the Forepeak, whether there was uncustomed Goods there or not.—I dont know.

Q. Did you hear the Prisoners say to Lt. Panton they had nothing against his searching if he would let them alone.—No.

Q. Did they take the Candle in order to shew him there was none goods.6

Q. Whether the Prisoners took the Candle from the Lt. and moved it about, that he might see there was no Goods there?—Lt. desird them to take it that he might see what sort of Place they were in.

Q. Lt. said he could not see and wanted to come down.

Q. by Mr. Fitch, whether the Hold was not so full of Cargo that they could not stand upright.—In the main hold we were obligd to set down on the Salt. I was never in the forepeak.

Q. by <Mr. Auch> Judge Auchmuty. How long between the two Pistols.—I cant tell it might be a Quarter of Hour more or less. I cant tell.

Q. by Gov. Bernard. Do you know which Prisoner gave the Wound? —No.7

Mr. Henry Stanhope. Midshipman cozn. [cousin] of E[arl of] Chesterfield.8

Mr. Panton was Lt. of the Rose Man of War. Knows the Prisoners, saw em 22d. April last on board the Pit Packett. I went on Board the Brigg, with Mr. Panton. The Mate threw a Rope to the Boat. Lt. enquird for Master who was the Person he spoke to. We went down into the Cabin with him. Panton, Bowen and I. When below, Lt. demanded of the Master the Bills of Lading and Clearance. He informd he had none but Bills of Health. Mr. Panton then asked for his Log Book which he produced. He then asked how many Hands he had on Board. He anserd 6 before the Mast, besides himself and Mate. Lt. went upon Deck, the Master came up a little after. Lt. told the Master he must let his Men search for prohibited Goods, which the Master readily comply'd with replying “very well.” Lt. sent Mr. Bowen with two of the Boats Crew to search the Hold.9 Mr. Bowen came up and related what had happend. Lt. orderd me to stay upon deck and look after the Roses Boat. Presently Mr. Bowen came up and told me it was Mr. Pantons orders, that I should go on board for assistance. I went with 4 of the Boats Crew, and acquainted the Captn. with what had happend. Returnd with Mr. Peacock, and Forbes the Master at Arms and others I cant recollect who, with Arms, Cutlasses, Pistolls, and Musketts. On my Return I know but little of what happd after. When Mr. Bowen came up, he said there were Men aboard who swore the first Man approached them, they would kill.

Q. by me. Was the Lts. order to Mr. Bowen and 2 of the Boats Crew to search the Hold for Men or for prohibited Goods.—I cant say. He told em to search the Hold for what Purpose I know not.

Q. by Mr. Fitch. Was the orders to search presently after he told the Master he must search for Goods.—In a short time after, but the orders were given on deck. What was said to the Master was in the Cabin.10

Mr. William Peacock.

Mr. Panton was Lt. of the Rose. I knew all the Prisoners aboard the Pitt Packet 22 last April. At my first Arrival on board the Brigg, I enquird of the Mate where Mr. Panton was. He said down in the fore hatchway. I went down directly followd by the Boats Crew. I enquird the Cause of the Disturbance. He told me that [despite] all the Arguments he could make use of, the Briggs People, 4 in Number, were down the fore Peak, and said they were resolved to die, sooner than be pressed on Board a Man of War. Mr. Panton then orderd me down the Main hold, with the Boats Crew, to force down a bulk head, which Parted the main from the forehold.

I went down directly, and orderd the People to break down the bulk head, which they began. The Brigs People the Prisoners from within threatned to kill the first Person they saw. Upon a Holes being made by our People in the Bulkhead, they presented a Piece thro that hole and snapped it 3 different times. The People in the mean time breaking the Bulk head down. So that in a little time I could discern 4 Persons differently armed, with Gun, fish Gig, Ax and Harpoon, still struggling to hurt our People as much as lay in their Power. Mr. Panton then came down, and orderd the People to desist from breaking the Bulkhead down, till he had spoke to those within, the Prisoners. He represented to em the folly of persisting vs. a superiour Number, acquainting em with the Impossibility of their Escape and promising { 301 } them good Usage if they would come out voluntarily. They told him they would not, and that they knew him to be a Lt., that the Men acted by his orders, and that the first Man that offerd to touch the Bulkhead they would do for him (meaning Mr. Panton). One of our Men, then hearing this threat, <snapped> fired a Pistol at the Man who told Mr. Panton so, loaden with Powder only, which must be true, as it only scorchd his Upper Lip and made it bleed, in order to intimidate him as the Man declard. James Silley the Man. The Man Corbit said to Mr. Panton, see what one of your Men has done pointing to his Lip. Lt. made answer, it was not done by his Order, when <you> He meaning Corbit, came on board the Rose he would shew him the Man that did it. In order as I suppose to get satisfaction. Lt. then askd them if they would come out and promisd them good Usage again. They said they would not, and that the first Person that offerd to approach them they would kill him. Michael Corbit was the chief Speaker, and said this in Particular. What he said the rest generally joind in, and assented to Lt. then gave new orders, to break down the Bulk head, which our People did as well as they could being interrupted by the Prisoners. Immediately after, Mr. Panton gave orders to stop a second time, and askd them if they would come out again. They said No. Lt. then askd one of 'em, to lend him his Ax that he might beat the Bulk head down the sooner, in a Joking manner. He within [answered] he'd lend it to scalp him. Lt. then orderd [us] to break down the Bulkhead. Which we were just going about, when Corbit the Prisoner at the Bar, struck at Mr. Panton with his Harpoon. Mr. Panton immediately said after the stroke, Peacock “the Rascall has stabbed me, thro the Jugular Vein.” I immediately fired my Pistol at the Person who wounded him, who was Corbit. I saw his Blood spout out amazingly before I fired my Pistol.

Q. by the Govr. In what Posture was Mr. Panton?—He was sitting on the salt opposite to Corbit and was not any Ways attempting to force an Entry.

Q. by Commodore Hood.11 I distinguishd Corbett, by the Blood on his Face.

When Silley fired the Pistol, Lt. took the Pistol from him and gave orders that no one should fire, without his orders.

Q. by Lt. Govr. Did the Prisoners discover that they heard these orders.—I did not see any Difference in their Behaviour. I cant tell whether they heard. There was a Noise, I was quite close to him.

Q. by J[udge] Auch[muty]. How long between the 2 Pist[ols]—1/2 an hour I am sure it was.

Q. by Gov. B[ernard]. Did Mr. Panton ever give orders that his Men should fire at the Prisoners?—No sir. Never.

Q. by me. What Number of Men and what Arms.—A. 8 came with me and Mr. Stanhope. We brought 2 Musquetts, 4 Pistolls, and 4 Cutlaces.

Q. by me. What Threats were used by any of the Lts. Party, to the Prisoners?—The firing of the Pistol, and damning one another, but no other Threats that I heard. Mr. Panton might say they had better come out by [fair?] Means.

Q. Did you draw up your first Deposition Yourself?

Q. by J[udge] Auch[muty]. Have you any Doubt upon your Mind but that he intended to impress the People, or not?—No sir.

Q. by Lt. Govr. Whether the other 2 Men were impressd.—They were carried on board the Rose, but immediately dischargd.

Q. Did you hear the Prisoners say to Lt. they did not want to hurt him or his Men?—I heard Corbit say to Mr. Panton see here what is done? What Right has your Men to do this.

Q. Did you hear the Prisoners or any of 'em say to Lt. or any of his Party, I can fly from you no further, I must defend myself.—They said they were resolved to defend themselves.

Q. Did any of the Prisoners say they were no Deserters, and Lt. could have no orders to impress them in time of Peace.—No. Not as I heard.12

Forbes Master at Arms.

I knew Lt. Panton very well. I know all the Prisoners very well, saw 'em first on Board the Pitt Packet belonging to Marblehead.

I was called and orderd to go aboard the Brigg to Mr. Pantons Assistance, which I did. I walked forward to the starboard side of the forecastle. I heard one of the Briggs Crew, call out from below, “come on you Dogs, here we are.” I took off my Coat and threw it upon the forecastle, then went down below, one of the Boats Crew with me with a Light to shew me the Bulkhead, which I saw by the Light. I laid my Hand upon it. I said there was nothing to be done [without] an Iron Crow. I went up the main Hatchway to look [for] one. I met the Lt. He askd me where I was going. I told him I was going to look for an Iron Crow. I turnd aft and found one, and carried it down to break open the Bulkhead by Mr. Pantons orders. Lt. at the same time told me, they were well stowed forward. I gave 2 Strokes at the Bulk head with the Crow. One of the Crew, which the rest calld Corbit, by his Voice I judge, said that was all they wanted. 5 or 6 Blows made a Hole in the Bulk head so as We could see them and they us. Lt. crawld along forward. As soon as the Prisoners see him, they in general threatned him with death. And one of em whom the rest calld Corbit said Mr. Lt. I will kill you first. And you may be sure of death if you dont go about your Business. And at the same Time presented a Musquet at Mr. Panton. Others of the Prisoners within presentd fish Gig, Harpoon and Ax at the Lt., without the least Abuse from that Gent. the Lt. I seeing em present their Weapons, towards the Lt., I was afraid they would kill him. I call'd out to 'em, and desird em not to point their Weapons to kill so good a Gentleman as what that was for he { 304 } meant them no harm. And if you do not leave off pointing your Weapons at him I will fire among you, which by a Rally I made upon them I drew them to my side and I frequently presented my Pistoll to 'em <to>[as] it is proper a Man should preserve his own Life. One of the Prisoners, the rest called Ryan, was in the Larbord Wing with a fish Gig in his Hand. He hove it at me. The length of his Arms, not doing the Ex[ecutio]n they would have him, Corbit cryd out kill the Buger, and accused him of Cowardice for not doing it. Corbit ran to the Larboard side where he Ryan was and catchd the staff in his Hand. And he took hold of the staff and the Grain came off.13 Upon Corbits return to the other side, he took a Musquet from another, and snapped it at one of the Boats Crew 3 times, then went to his own Quarter again. The Opening I made was so big that the wounded Man came out. It was all down to a Piece of a Plank, which Corbit made several Attempts to pull down, swearing at the same time he wanted room to kill the Lt. One of the Boats Crew with me, made 2 or 3 attempts to hall this Plank down. But a Musquet being presented at him by one of the Prisoners he catched hold of it, but not being able to keep his Grip, he flew over, to the side where the Lt. and the rest of the Gentlemen were, took up a Pistal. Corbit seeing that dard him to fire. He told him he would if he did not put his face back from the Bulk head. Fire if you dare, I will kill the first of ye. Then I heard the Pistall go off. Silly who fird it, came over to my side. Lt. call'd out, but cant say what he said. He seemd to speak hot. Silly came over to my side, with a loaded Pistall in his Hand, I know there was priming in it, there[fore] I conclude was loaded. The Prisoners after this were very hot, pushing their Weapons at Us. I called out to the Lt. and said I must be obliged to fire to save my own Life. He called me by my Name, and forbid me to fire more than once, or else I'd have shot every Man of them. At the same time, the Lt. demanded Silleys Pistal from him, Lt. thinking Silly as hot as I was. Blew out the priming and gave it to one of the Boats Crew. The next thing I observd, 2 or 3 Minutes after, was Corbit darting out a Harpoon thro the Bulk head, where the Lt. used to sit [i.e. had been sitting]. I did not see the Lt. at that Time. In a Moment as quick as possible, I heard a Pistall go off. I dont know who fird it. The Pistall was followd by a groaning in the Hold among the Prisoners. Corbit said he was shot thro the shoulder, and lost the Use of one of his Arms. Ryan said the same afterwards. I advised em to come out and get our Doctor that they might not bleed to death. Corbit said he would not. That he would die there, and bleed to death. I { 305 } advised Ryan to come out, and helped him out, with a Pistal in my Hand, cockd and [primed?], they with their Weapons [threatening] to kill me if it [i.e. I] came in. They admitted me to come to the Bulkhead. One of the Boats Crew came down and said that Mr. Panton was dead. The first I heard or thot of it. I said to Corbit you are the Rascall that has killd the Gentleman and youl be hangd for it. He said he would kill me next for he believed I was an officer of Marines. I told him let me be what I would, I would have the satisfaction of putting him in Irons by and by both Leggs, which I had and if there had been 25 I would have put 'em all in. Ay says he you are Master at Arms, if I had known that I would have killd you long ago.

Q. by Govr. Was the <hold> Hole where the Lt. was wide eno for the Lt. to get thro.—I cant think it was. The largest Breach was at the larbord side. A Man might have got his Head thro. I saw Corbit make a Push with the Harpoon, but could not see that Lt. by Reason of a Trunk.

Q. by Prisoner Corbet. How could you see when there was no Light, the scuttles being down.—There was no Light among 'em, but we had Lights and the Planks were all clear where we were. The Light shone full upon them.

Q. by Mr. Otis. Had Lt. a sword or Pistal at the Time he fell?—To my Knowledge I never saw any Weapon in his Hand but a snuff Box.

Q. Do you remember Corbits requesting intreating the Lt. to go about your Business, and stand off?—They said go about your Business and stand off. Their constant Cry was, if we would not go about our Business they would kill.

Q. <Do you> Did Corbit and the rest frequently say, he did not desire to hurt him if he would go about his Business.—Not to my Knowledge.

Q. Did you consider yourself as searching for Goods, or as one of a Press Gang?—When the Lt. said they were well stowd forward, I thought there were goods. I am not to be a judge of my officers Business. I imagine it was for seizing Smugglers as well as any thing else. I am not a judge whether Lt. would have pressed them. The latter End they behavd so rough and turbulent that the Lt. I believe would take some of 'em on board the Rose.

Q. Did you hear Lt. say he would press em?—I did not that I remember.

Q. Did you frequently hear the Prisoners declare they would die before they would be impressed on board a Man of War.—I heard Corbit say, he would not go on board a Man of War. At the time when he said he was wounded, he said he would die, before he would go aboard a { 306 } Man of War. They said that all they had in the World was there and they were defending it.

Q. Did you hear em say they were in defence of their Liberty.— They might say so, I cant say I heard it. There was many Words said that I dont remember.

Q. Was you in the forepeak?—I never was there.

Q. Do you know of any uncustomable Goods that were found in this forepeak by any of this Party, or any other Part of the Vessell.—Not that ever were found to my Knowledge.

Q. Did Corbit express great Grief and Concern when he was assurd that the Lt. was killed?—No.

Q. by the Govr. B. Was it after Corbit knew of Lts. death that he said he would kill you.—Yes.

Q. by Govr. Do you believe the Prisoners heard the Lt., forbid Silly and me14 to fire.—I do.

Q. by Govr. Did you hear Corbet complain of the first Pistall, and the Answer?—Yes. The Ball missed Corbit if there was one in it. Corbit said to Lt., see what your Men have done. Well says the Lt., come out, and you shall have what Satisfaction you please.

Q. by Mr. Otis. Are you sure there was but one Pistol dischargd before the Lt. fell.—But one.15

Q. by Prisoner to Mr. Bowen. Did the Lt. draw his sword and thrust it down several Times into the Place where the Prisoners were?–No.

Q. by Otis to Bowen. Did you consider yourself with Mr. Panton as searching for Goods, or as a press Gang?—Ans. as searching for Goods. First I searchd for Men and then for goods.

Q. Whether any of the Party searchd the forepeak for Goods after the Men were out?—I dont know that they did. Peacock and Stanhope no. We went on board the Rose before the Men were out.

Q. to Bowen, Peacock, and Stanhope. Did you hear em frequently say they did not want to hurt em if they'd leave em.—Bowen did. The other 2 did not.

Q. Mr. Bowen. I believe at different Times I might hear em all say, that [they] would kill &c. Corbit said he would put his Lamp out first. And the others might say to the same Purpose. I believe some of the others did. It was not always said with the same Voice. I cant tell which took the Candle from the Lt. I am certain Corbit said he would shoot with Gun loaden with sluggs and primed, and they all joind in it. Pierce Fenning presented the Musquet, but who the fish Gig or who cryd fire I cant say. I saw no body have the Musquet but him. The same Man presented it at Sinclair, and snapped it 3 times. Corbit said he knew him to be a Lt. Cant say that any other did. There was a Noise.

Q. by Mr. Fitch. Whether Mr. Panton had found a Pistol or any Arms while in the Hold—main hold?—He came down unarmed without his sword. He took the Pistall from Silley [some?] time after, as mentioned before. Silly had loaded it, <for> the or it [may] have been another for the Lt. blew the priming out, and gave it to one of the Crew. He had Time to go from side to side between, for Mr. Panton called him to him.

Bowen see him take the Pistal from Silley, <and blow the prim> but did not see him blow the priming out. Stanhope saw him with a sword at the scuttle, but not in the Hold, I did not see him.

Wm. Petty-grew. Physician. I saw the Body before it was buried. Soon after the Vessell came up to the Wharf. He came by his Death I suppose by the Wound he received in his Neck. About 3 Inches long, and of a triangular Figure, cut the Carotid Artery and Jugular Vein. I suppose 3 Inches in depth. There are two Jugular Veins on each side of the Neck.

Q. by me. Are the Artery and vein 3 Inches deep?—I suppose it must have penetrated 3 Inches, for the natural Elasticity of the Artery and vein would have given Way.

Robert Brice. Surgeons Mate. Knew the Lt. I saw him about 1/2 Hour before he died. His death I apprehend occasioned by a try-angular Wound in the left side of his Neck. It must have been the immediate occasion of his Neck [i.e. death]. The 2 Jugulars on the left side and the Carotid Artery were cutt thro. The Wound went down in an oblique Direction. There is an external and internal Jugular Vein. One could have known the Wound by the Instrument that gave it.

There must have been force used in drawing it back, as the surface of the Wound was lacerated.

James Silley. A private Marine. I went on board the Brigg, in the Boat—the 2d Boat. I was one that rowed. I went immediately down in the Hold with Mr. Peacock and the Master at Arms. Mr. Panton orderd Us to open the <Hold> Bulkhead.

Q. by Govr. Bernard. Did you fire a Pistall?—Yes I fired a Pistall. The Prisoners orderd us upon our Peril not to approach the appartment. If We did they'd kill Us. They'd be the death of the 1st Man that should attempt to break in there. The Pistall I fired, was loaded with Powder only. It was given to me, I dont know by whom, for a Pistall only with Powder. I did not load it and dont know. He dont know by whom it was given to me but believe it was the Master at Arms. I fired it at the Time when I was taking hold of the Musquet that was presented thro the Bulkhead. I dont know that I presented at one any more than another. I had no Reason for firing it, but in Confusion, with no Intention at all. I catched at the Musquet and fird at the same time with the other Hand.

Q. How near was the Mouth of your Pistoll to Corbetts face?—I dont know. It must be very nigh him, I believe, by the Explosion.

Corbit said this is not good Usage.

Mr. Panton said he would shew him the Man when he came on bord. Then a Cartridge was given me by Sinclair and I loaded the Pistall again. The Musquet was pointed thro the Bulkhead again. I seized it and kept it in my Hand for above 2 Minutes. But the Prisoners got it from me, 2 of em. I soon went over to the Larboard side where the Master at Arms were. The Lt. demanded me to give him the Pistol. Accordingly I did. I then assisted the Master at Arms in breaking down more of the Bulkhead with Pretence of getting in. The Prisoners then desired us to keep off upon their Peril for they would not be pressed. I remember Corbit very well. The others said keep clear Gentlemen at your peril for We will not be pressed. Corbit then said <Mr.> you Lt. stand clear if you dont I'le be the death of you. The Lt. made answer you may depend upon it if you kill any one you'l be hanged for it. They Corbit then often attempted shoving thro with the Harpoon, the whole of em desiring Us to stand clear. Soon upon it I heard another Pistall go off and the Cry of a Man. Looking about I saw the People all going out of the Hold and no one there but I and the Master at Arms. Sometime after Gibson came out and said the Lt. was dead. The Prisoners said it was no such thing.

Q. Mr. Panton said he gave no orders to fire.

Q. by Pris[oner]. Did We not tell em We wanted nothing but our Liberty, and not to hurt any of their People?—I heard some of them say they wanted nothing but their Liberty and would hurt nobody if they did not hurt them.

Q. Whether some of the Boats Crew did not say, if We did not come out they would blow our Brains out or shoot us.—I believe there was Words of the Kind passed of both sides. A great deal of that.

Q. Did not I give the Prisoner, a Piece of Bread and say that I wanted not to hurt him or any Man.16—Yes.

Q. by me. The Lt. said he had a Deputation to search and would search there. That [ . . . ].17 The Prisoners said there was no prohibited Goods there.

Q. Did the Lt. or any of his Party search in any Part of the main Hold for prohibited Goods.—I did not see em.

Q. Did you apprehend your Business was to search for prohibited Goods or to impress Men.—I understood that I came on Board in order to [help] Mr. Panton to search for prohibited Goods or to impress Men as he gave orders.

John Bembridge.

Of the Utmost Importance to society that Murder should be punished.

Shall only state the Evidence summarily.

Mr. Panton an Officer of the Customs, duly authorized to make Searches and Seizures. The Commissioners here authorized by Act of Parliament, to issue commissions. This Commission issued to the officers of the Navy.18

As a Custom House Officer he had Authority to go on board any Vessell to search. He went on board, and demanded Papers and Leave to search. The Master readily consented.

Masters explicit consent to search a material Circumstance.

He found the Men, and insisted that they should come out and said he wanted to search that Place for prohibited Goods.

No threatnings on the Part of Mr. Panton. On the contrary he spoke in the mildest and most persuasive manner.

No arms when he went down the hold. Threatning Language from Prisoners. A Pistoll. Mr. Pantons Disapprobation. The Pistoll 1/2 hour before the fatal accident.

Corbit one of the Persons that threw the Harpoon that killed the Lt. They were all active, stimulating one another, and all equally concerned, tho Corbit gave the mortal blow.

Lt. was in the lawfull Discharge of his Duty, and the explicit consent of the Master for this Purpose. Any opposition to him therefore was illegal. The opposition being illegal he was not obliged to give back. No threatnings on the Part of Mr. Panton, by which the Prisoners could apprehend Danger to their Lives—tho they had apprehensions of being impressed.

The Pistolls not fired by him, but vs. his express orders.

The last Pistol after the Wound was given, Peacock saw the Blood.

Lt. Governor says he did not see the Blood, till after he fird. The Register has taken it otherwise.19

The Threatnings of Prisoners levelled at Mr. Panton himself. We will put your Lamp out first. This shews Malice vs. himself in particular. Why should they single out this Person any more than others.

If any Person is singled out, it is Malice, tho in an Affray.

I will consider the apprehensions the Prisoners were under and the Effect of this upon the Evidence. They were under Apprehension of being impressed. But Mr. Panton did not say he would impress 'em. Ans. Mr. Bowen said, the Lt. told Prisoners he would take em all.20

How far this can excuse? Justify I apprehend it cannot.

I am considering, how far the Prisoners Apprehensions could affect the Crime. I think it could not affect the Crime att all, as he was acting under a legal Authority to search for Goods.

What Effect the Firing the 1st Pistol, can have upon the Crime? I apprehend it can have very little weight, as it was done without order, and the Lt. expressly disapproved it.

Lt. unarmed, in such a Position and attitude that he could not be in a Condition of Offence.

Q. Whether these Circumstances can soften the Crime down from Murder to Manslaughter, or whether they are not Proof of Malice forethought.

Law. A Question whether the Court are to proceed by the civil Laws or by the Rules of the Common Law. I apprehend the Crime is the same by both Laws. The same essential Distinctions in both. The voluntarily taking away Life, Dolo malo, with Malice forethought. Manslaughter is not by Name in the civil Law, but the civil Law makes the same Allowances to the Infirmities of human Nature.

Discretionary in civil Law, what Punishment to give to sudden Killing. By 27. H. 8. and 11. & 12. W. 3. compard, taking em together I apprehend no safer Rule can be proceeded by than to proceed by the common Law and this has been the Practice.

I shall confine myself to the Rules of common Law.

[2] H.H.P.C. 16. 17. Q. Whether the statute does not restore Clergy.21 The offender is to have his Clergy. Lt. Governor said some { 312 } Cases that would be Manslaughter at common Law would be punishd with death by civil Law.

1. H.H.P.C. 455. 457. Implied Malice. Kills without Provocation.22

A Bailiff, Constable or Watchman. No lawful Warrant. Capias Distringas.23 9. Co. 68.24 Same Book 458. A Bailiff Jurus and Conus. Pew said stand off. Bailiff laid hold. Pew killd. Murder.25 A similarity in these Cases. If Lt. had a Right to enter any Part of the Vessell, he is equally under Protection of Law as any other officer, and opposing him is at the opposers Peril.

458. Bailiff, Cook. Cook bid him depart. It was Manslaughter in defence of his House no felony.26 Tho Lt. might pursue his Authority in an illegal Manner, yet it would be manslaughter. No greater Effect than that, it must be left to the Court whether so great. Should the { 313 } Court think, that am[ount]s to Manslaughter, I see no reason vs. punishing by the civil Law.

Thomas Power. Master of the Brigg.

<. . . Panton said to me The Man of War.>

Q. Did the Man of War hail you before the Lt. came on board.— The Rose fired 2 Guns and hailed us by a Trumpet and order[ed] us to lie to after which Lt. Panton came on board. He enquired for the Master. I told him I was Master of the Vessell. Then he asked me for my Clearance. I told him I had none. He replyed you must certainly have some Papers. I told him I had no other Clearance but a Bill of Health and a Bill of Lading as it was a foreign Port, from whence I came, and we took no Clearance therefrom. He asked me for the Bill of Health which I produced. He then asked me for a List of my Men. I produced him my shipping Book. He asked me, if I would walk down into the Cabin. When he came down He asked me where my People were. I told him I did not know. Then he called for Pen and Ink, and for the Logg Book, and took down the Peoples Names, and he then ordered some of his Party to go and seek for my People, <then he> and turn em up from below. Then he asked me to open my Lazaretto27 scuttle for em. I told him I would. After he had taken my Peoples Names, he asked me if I had any particular Person, that I wanted a favour done him, let him know his Name, he would put a Mark against it and when he came upon deck, he would not take him. I told him I had one Man that was married, and I tho't it was very hard to take him. He said by no means he would not take <any> no married Man, for he had orders to take None that was married.28He asked me if I had any more Hands aboard, but what was in the List. I answered no. Then he desird me again to tell him if I had any more, for if he found more aboard it should be worse for me. While he and I were talking, some of his Men came and told him, that they found out the Men, that they were hid in the forepeak, and would not come out. Then he left me in the Cabin, and went upon deck, and I never saw no more of him, till he was brought up, by some of his Men out of the Hold.

Q. What Condition was he then in?—He was wounded in the Neck on the left side. I perceived an Effusion of Blood. He might live an Hour or an Hour and half. Speechless when he came up.

Q. Was you present when orders were given for the Boat to go on Board the Rose for more Men and arms? Declare all you know.—I was upon Deck when orders came up, to send the Cutter on Board and bring the Cutter, properly manned and armed. When the Cutter returned the Roses Men jumped in, upon the Briggs Deck. Some with their Pistolls cocked and some with their Cutlasses drawn. Some of 'em enquird, particularly the Master at Arms, enquired where the Dogs were, and said they would soon have 'em out” ? They then went down between decks to the Lt. All of them, but one Man, left to take Care of the Boat. In a little time afterwards, one of their Men came up upon deck to me, said he was sent by the Lt., (Charles Rainsford now present in Court) for some Tools, to cutt the Bulk head thro, and if I refused sending them, that he the Lt., would confine me. I told him I had none. If they could find any, about the Vessell, they may make Use of them.

Q. by Mr. Otis. Did Lt. Panton demand a search of your Vessell as a Custom House officer?—No.

Q. Did he demand a search for the Men?—He did not demand a search for them of me, but orderd his People to go and search for them.

Q. For what Purpose did he search. Declare all you know.—I imagined it was to impress em. He said his orders were to take but 2 but as they had hid, he would take the whole four.

Q. Did he say any thing to you about his being a Customs House Officer, or his Having a Right to search for Goods from first to last.— No sir.

Q. Did you ever hear him give orders to any of his People to search the Vessell for prohibited or uncustomd Goods.—No.

Q. What did the Prisoner Corbit say, when he first saw the dead Body of the deceased in the Cabin door?—When he came to the Cabin Door and saw the Lt. dead he shed Tears, turned about to the Marine and said to him, you Rascall, you are the Instigation of this Gentlemans death, and said you are the Person that fird at me.

Q. by the Govr. Did Lt. behave civilly or uncivilly, to your observation?—He behaved civilly to me.

Q. by me. What Country men were your two foremast Men who were not in the forepeak?

Q. Were they Inhabitants of Marblehead, and had they families.— { 315 } One had a family in Marblehead, the other was an Inhabitant there.

Q. Were them 2 Men both pressed and carried aboard the Man of War afterwards the same day.—Yes. They were taken away. They were returned before night. I was not requird to settle their Wages, which I take to be the common Practice.

Q. Did one of those 2 Men, deliver you the Key of his Chest and desire you to deliver his Chest to his Wife at Marblehead before he went on Board the Rose?—Yes.

Q. by Com[modo]r[e]. When the Lt. desird you to unlay the Lazaretto scuttle, did he give any Reason for the Request.—No.

Q. by Mr. Trail. Did he ask you what Goods you had aboard?—Yes. I told him Salt.

Q. Did the Lt. say he should take no Americans?—Yes.29

Hugh Hill Mate of the Pitt Packett.

On the 22d April we met a ship standing out of the Bay. (<as to the firing before, confirms the> Bet. 6. and 7 o clock they fired the Gun, and soon after, fird another. We bore down Under the Lee. They hailed Us, told us to bring too, and with our Head the same Way that they were, untill they would send there Boat aboard. Their Boat came on Board, with the Lt., 2 Midshipmen, and seven Men. The Lt. asked for the Master of the Vessell, who was then present. He asked him for his Papers. He told him he was from a foreign Port, he had only a Bill of Health, in Case of being put into another Port, and his Bill of Lading. Lt. asked him for his shipping Book, and asked him to go down into the Cabin with him. They remaind in the Cabin 7 or 8 Minutes, and the Lt. came upon deck again, with the shipping Book in his Hand, asked me if I was Mate of the Vessell. I told him I was. He told me to call our Men to answer to their Names. I <told> called to em to come { 316 } aft and answer to their Names. The 2 that were upon deck came aft. The Lt. looking upon the Men, seeing no more come but them 2, looked steadfast upon me, and said Go sirrah and turn your People up, or I shall take you. I said sir you may use your Pleasure. At that Instant he took up his Sword from our Companion30 where he had laid it, <and went forward> drew the sword, and left the Scabbard and belt and went forward, and went down into the Forecastle, where the Prisoners were. He said My Lads, you had better come up. I shall take but 2 of you. You shall have an equall Chance. They replyed they would not. I heard a Number of Voices. Cant say they all spoke. They told him, they would not be impressed, that they would defend themselves, and they told him to keep off from them, they did not want to hurt him, nor any of His People. He called to Mr. Stanhope, one of the Midshipmen, to take 4 Hands in the Cutter, and go on board for more Men and Arms, and to have the Cutter properly armed. He then replyed to the Prisoners, that he had often known as stought31 fellows as you32 but by God I will have you all. He was down below the Upper deck, I was on the Upper deck, the scuttle open, between us, I leaning with my Head over the scuttle. I then went aft. Soon afterwards, he sent up to know if the lower deck Hat[ch]ways was open? I told him that came up, that all the Hatches and Scuttles in the Vessell were open, excepting that where the Boat stood. Soon after, he sent for Lights. I orderd the Cook to light Candles for him. Soon after they got the Light the 2d. Boat came aboard, with a Number of Men Armd. The Master at Arms, and Mr. Peacock, came out of the Boat first. The Master at Arms, <swearing,> saying “damn the Rascalls where are they? I'le have them out Immediately.” The Master at Arms went down forward, Mr. Peacock following, who orderd his Men to follow him. They went down. Soon after there came a Man up, asked for the Master, told him he wanted the Tools belonging to the Vessell, if he did not deliver em the Lt. would confine him. He told him, he did not know where they were, if they could find 'em they might take 'em. They found an Adz, and a Crow Bar, and went down into the Hold again with the Tools. In a short space of Time, I heard a Pistol go off. About 7 or 8 Minutes after, one of the People who came from below, told me that one of our Men was wounded. In 8 or 10 Minutes after, I heard a 2d. Pistall go off, and in 4 or 5 Minutes after, Mr. Peacock came up and hailed the Rose, and told em for Gods sake to send the { 317 } Dr. on board the Lt was wounded. They bro't the Lt. to the forescuttle, and I lent a hand to carry him down into the Cabin. The Dr. came to him. After the Dr. had been with the Lt., He came out of the Cabin, some of the People, asked him to dress the wounded Man, (meaning John Ryan). He answerd let the Rascall bleed and be damn'd. He ought to have a Brace of Balls drove thro his Head. The Man remaining in his Gore, till he was carried on board the Man of War. After they had placed sentries over Corbit James Silley a Marine, told Mr. Newcomb and me, that he fired a Pistol in Corbits face, thinking to make him retreat. Some of the People then after the Lt. was dead made mention that the Lt. was a Customhouse Officer. Our Master asked me if I had seen his shipping Book. I told him No. I went and asked the Midshipmen if they had seen the shipping Book. They told me No. They said they would search the Lts. Pocketts for it. They went down into the Cabbin and took his Papers all out of his Pocketts in my Presence. The shipping Book was not in his Pockett. When the Master of the Rose came on board to search, <he brought a Deputation> The Monday following, viz. the 24th., He brought a Deputation <to search> as a Custom House officer and shew it to Captn. Power. Captn. Power said He need not read it. The Vessell was all open he might search. There was no Parchment in his Lts. Pocketts, when his Papers were taken out. I examind all his Papers particularly, to find the shipping Book.—The Commission being shown him [i.e. Hill] he says it was not there.

Q. Did Lt. Panton deceased from the time of his coming on board the Pit Packett to the Time he fell, make any Demand on Captn. Power, in your hearing, or of any other belonging to the Pit Packett, to suffer him to search the Vessell as a Custom House Officer for uncustomed Goods?—No.

Q. Did the Lt. with his Party, from the Time of his coming on board the Pit packett to the time he fell, conduct him and themselves, in all Respects, merely as a press Gang?—Yes. I understood it so, and had very good Reason, when he told me, he would take me on board the Man of War, if I would not turn the men up!

Q. How long was the Lt. on board the Brigg, before he fell.—It might be 2 Hours, as near as I can judge.

Q. What Part of those 2 Hours was taken up in the forceable Attack upon the forepeak, where the Prisoners had retreated?—The whole Time, excepting what was spent with the Captn. and him, in the Cabbin and on deck, which might be 10 minutes in the whole.

Q. With What Weapons was this Attack made, and what Methods { 318 } used by the Lt. and his Party to break into the forepeak. Declare all you know.33

Answer. Crow, Adz, Pistolls and Cutlaces, I suppose, that were carried down.

Q. What was said by the Officers, or People of the Man of War, to the two of your Men, when they were orderd into the Boat, <after the Lts. fall,> in order to be carried aboard the Rose.—I dont know I want upon deck.

Q. What did the Officer find on the 24th.—He found our stores, some Bottles of Wine, and some loose Lemons, 5 or 600, in a Barrell, nothing else. He seized the Vessell, put the Broad Ar[row] on the Mast.34

Q. by Corbet. What did Corbit say when he first came up and saw the Lt., and what did he say and how behave?—Thro my Perswasion he came up. I told him it would be much better for him. He asked me if I would advise him for [what?]. I thought was best for him. I told him I would not give him advice to his Prejudice. He came up and went into the Cabin, seeing the Corps, Tears came from his eyes, He turnd round and saw the Soldier that fird the Pistol upon him. Said you are the Rascall that is the occasion of this Gentleman loosing his Life. He said in the forepeak he did not believe the Lt. was dead.35

John Roney. Mariner on Board the Brigg.

The Cutter came aboard and Lt. and two Midshipmen, and 7 Men. Lt. enquird for the Master. Lt. went below with the Master. He came up with the shipping Book in his Hand, and told the Mate to call the People. The Mate said there was 2 forward and call[ed] 'em accordingly. Lt., looking upon the shipping Book calls Michael Corbet, then he calls John Roney. I answerd to my Name. One of the Roses People came and told the Lt. the Men were down in the Fore peak. Lt. went forward, immediately. Took his sword drawn along with him. Lt. <told> asked the Prisoners to come up. The Prisoners answerd they would not. Lt. made Answer He would have them up. They said they did not want to hurt him or his People they wanted nothing but their Liberty.

Some Time after the Lt. bid one, go aboard the Boat and fetch more Men, and bring the Boat armed and the Master at Arms.

When the Cutter returnd again I hove her a Rope. They had a great many Arms and there was Mr. Peacock and the Master at Arms. The Master at Arms, <hove off> took a Pistall in one hand cockd as I thought and a Cutlass in the other. He jumped aboard the Brigg and says, “By Jesus I'le have these Dogs out.” Immediately speaking again “where is these Bugers.” He went down the forecastle with his Pistoll and Cutlace, I did not hear any more of him for about 30 Minutes. First Thing I heard was the Report of a Pistoll. Mr. Stanhope, standing centry over the Forecastle scuttle, told me, one of our People was wounded. About 5 or 6 minutes afterwards I heard another Pistal go off. About 4 or 5 minutes afterwards I heard the Lt. had got a deadly wound.36

James McGlocklin. Cook on board the Brigg.

I was down in the steerage, and the Lt. desird me to get him a Light. I did. Desird me to shew him the Way twixt Decks forward. I shewd him the Way and car[rie]d the Light in my Hand. Lt. asked the Prisoners if they would come up. They replyd they would not. He said it would be better for 'em. If they would not he would make them. They said they would not, they were Freemen born free, and would not go aboard a Man of War. He said He would have em. For Men he came for and Men he would have. Lt. said if they would come up he would not hurt any of them. They said say37” would not, they would stand in their own Defence they did not want to hurt no Body.

I went aft into the steerage again untill the Boat came on Board 2d. time with more Men and more Arms. Lt. called for another Light. I got it, and carried it forward to him. Heard him say that he had seen as stout Men as them come out very easy before now. They replyed to him they were none of them sort of Men. He said to them I'm the Man that will bring you out. Then I went aft. Lt. calld after me to shew him the Hatchways, which I did. Then the Master at Arms came directly with his Cutlace and Pistoll, and askd me for a Crow bar. I told him I did not know where to find one. He <takes> lookd and found a Crow bar. Then says he where's these Buggers, I'le have them out. Lt. and He and the rest of their People went down in the Hold and I went away into the steerage. Presently after I heard a Pistoll go off. One of the Men of Wars men came up and told me one of our People was wounded. Soon after, 4 or 5 Minutes I believe, I heard another Pistoll go off. Presently I see the Wounded Man, John Ryan come out crawling over the Water Casks. Askd me to help him. Beggd of me to get him Water he was faint, &c. Soon after I heard the Lt. was killed.

Q. Did you ever hear Lt. or any of his Party demand leave to search for Goods or say any Thing about it.—No.

Q. Did they behave merely as a press Gang?—Yes, and I never suspected they had any other Design. I saw Lt. have his sword.38

Edward Wilks. A private Marine on board the Rose.

Q. Did you place the Sentries over Corbit, on board the Brigg after the Lt. was killd?—Yes.

Q. How did he behave and what Conversation had you with him about the unhappy Accident.—The Centrys were planted and I went down to see if every Thing was quiet. I found Disturbances on both sides. I beggd of the Prisoners at the Barr, Ryan excepted to behave in a better manner, for the Lt. was kil'd. They made me answer, that they could not believe it. For they did not mean any Harm to any one without it was them that came armed against them, and further told me, that if I would lay down my Arms, they would lay down theirs, and I might be welcome to eat or drink with them. I made em answer, that I did not choose any Thing of the sort. Corbit desird me, to go to Mr. Hill the Mate, and ask him, as to send em something to stop the Wound, for he was shot. Accordingly I went up. He went down.

Charles Raynsford. A Seaman, on board the Rose. Came [in] the first Boat, with the Lt., and was down in the Briggs Hold with him. In going down the Hold, <I heard Mr. the Master at> Mr. Peacock was the Head officer, and the Master at Arms. There was orders given to break open the Bulk head. The Prisoners said the first Man that made a Hole they would be the death of him. Presently after a Hole was made. The Prisoners never hurt any of em that made it, tho the Hole was large eno, to have hurt em with their Weapons. Some time after, the Lt. came down, when he came down I did not really see him. The Lt. took my Pistall from me. Mr. Peacock was close by. I made answer I cant stand here with a naked Cutlace only. With that I drew back. Lt. orderd somebody, to go upon deck and fetch an Ax. I went up to the Captain, Power and I asked him for an Ax. I saw the first Pistal that { 322 } was fird run close to his face and fird. Corbit said Gentlemen you have wounded me. Corbit askd the Lt. by what Authority he fird at him.

Q. Did you hear Mr. Panton say he wanted to search for uncustomd Goods?—No. I did not.

Capt. Robert Calef. 30th of April, Mr. Bowen came to my House. I said to him an unhappy Accident happd on board the Brigg. How did it happen?—I was as nigh the Man that kill'd the Lt. as the Lt. was when he was killed. I askd him how the affair was. He told me the Man had given him all the fair Warning imaginable and it was Lts. own fault, and they had talked together, the Lt. and Prisoners, while the Boat was gone for.

But, the first Question that is to be made, according to my Opinion, is, whether Impresses in any Cases, are legal? For if Impresses are always illegal, and Lt. Panton acted as an Impress Officer, Michael Corbitt and his Associates had a Right to resist him, and if they could not otherwise preserve their Liberty, to take away his Life. His Blood must lye at his own Door, and they be held guiltless. Nay I think that Impresses may be allowed to be legal, and yet Corbit might have a Right to resist. To be more particular, when I say Impresses may be legal, I mean that the Lieutenant or other officer who Impresses, may not be liable to any Action of false Imprisonment at the suit of the Party, or to any Indictment at the suit of the Crown, for an Assault, or Riot. The Custom may be admitted to extend so far, and yet it will not follow, that the Seaman has not a Right to resist, and keep himself out of the officers Power, if he can. And whatever may be said of the Antiquity of the Custom, &c. it is very remarkable, that no statute has ever been made to establish or even to approve it, and no single Judgment of any Court of Law can be found in favour of it.2 It is { 323 } found in the Commissions of the Admiralty, and in Warrants from the Admiralty, but no where else.

However the General Question concerning the Legality of Impresses may be determined I humbly conceive it clear, that in America, they are illegal. And that by a particular statute. I mean 6. Ann, c. 37, §9.3 “No Mariner, or other Person who shall serve on Board, or be retained to serve on Board any Privateer, or trading Ship or Vessell, that shall be imployed in any Part of America, nor any Mariner or other Person, being on Shore in any Part thereof, shall be liable to be impressed or taken away, or shall be impressed or taken away, by any officer or officers, of or belonging to any of her Majestys Ships of War, impowered by the Lord high Admiral, or any other Person whatsoever, unless such Mariner shall have deserted &c.4 upon Pain that any officer or officers so impressing or taking away or causing to be impressed or taken away, any Mariner or other Person, contrary to the Tenor and true Meaning of this Act, shall forfeit to the Master, or owner or owners, of any such Ship or Vessell, twenty Pounds, for every Man he or they shall so impress or take, to be recovered with full Costs of Suit, in any Court within any Part of her Majestys Dominions.”

This Statute is clear, and decisive, and if it is now in Force, it places the Illegality of all Impresses in America, beyond Controversy. No Mariner on board any trading Vessell, in any Part of America, shall be liable to be impressed, or shall be impressed, by any officer, impowered by the Ld. Admiral, or any other Person. If therefore this Statute is now in Force, all that Lt. Panton did on board the Vessell was tortious and illegal, he was a Trespasser from the Beginning, a Trespasser, in coming on board, and in every Act that he did, untill { 324 } he received the mortal, fatal Wound. He was a Trespasser in going down below, but especially in firing a Pistall among the Men in the Forepeak. It is said that the Lt. with his own Hand discharged this Pistall directly att Michael Corbitt but the Ball missed him and wounded the Man who was next him in the Arm. This therefore was a direct Commencement of Hostilities, it was an open Act of Pyracy, and Corbit and his associates had a Right and it was their Duty to defend themselves. It was a direct Attempt upon their Lives. And surely these unhappy Persons had a Right to defend their Lives. No Custom House officer, no Impress officer has a Right to attempt Life. But it seems that a second Pistall was discharged and wounded Corbit in his Cheek, with Powder before the fatal Blow was struck. What could Corbit expect? Should he stand still and be shot? Or should he have surrendered, to a Pyrate? Should he have surrendered to the Impress?

But it has been made a Question whether this Statute of 6. of Ann is now in Force? It has been reported as the Opinion of Sir Dudley Rider, and Sir John Strange, that this Statute expired with the War of Queen Ann.5 These are venerable Names, but their Opinions are Opinions only of private Men. And there has been no judicial Decision to this Purpose, in any Court of Law, and I trust never will. Their Opinions were expressed so very concisely, that there is great Room to question whether they were given upon the whole Act, or only on some particular Clause in it. Supposing these Opinions to extend to the whole Act, I have taken Pains, to discover what Reasons can be produced in Support of them. And I confess I can think of none. There is not the least Colour, for such an Opinion. On the Contrary, there is every Argument, for supposing the Act perpetual.

1. It is a good Rule, to consider the Title of an Act, in order to ascertain its Construction and operation in all Respects. The Title of this is “An Act for the Encouragement of the Trade to America.” Encouragement of the Trade to America, is [the] professed Object, End and Design of this Law. Is this Trade, only valuable in Time of War? If the Trade to America existed and was carried on only in Time of War, { 325 } the Act made for the Encouragement of it must expire when the Trade expired, at the End of the War. But the Trade did not expire with the War, but continued after it, and therefore, the Encouragement given it, by this Act, continued and survived too. This is of equal Importance in Peace as in War, and there is stronger Reason why it should be incouraged by exempting Seamen from Impresses, in Peace than in War, because there is not the same Necessity for impressing seamen in Peace, as there is in War.

2. The Preamble furnishes another Argument to prove the Act perpetual. “For Advancement of the Trade of her Majestys Kingdom of Great Britain, to and in the several Parts of America.”6 This is one End of this Law. Is not this End as beneficial and Important in Peace as in War? Has there been a Year, a Day, an Hour since 1707 when this Act was made when the Trade of Great Britain, to and in the several Parts of America, was of less Consequence to the Nation, than it was at that Time? Surely the Advancement of the British American Trade, is a perpetual object. It is no temporary object or Expedient, it has lasted these 60 Years, and I hope will last 1000 longer.

3. For the Encrease of Shipping and of Seamen, for the Purposes mentioned before in the Preamble, is another End of this Law. Now shipping and seamen are usefull and necessary to a commercial Nation, in Times of Peace as well as War.

4. Some Clauses in this statute are in their Nature temporary, and limited to the Duration of the War. §2. 3. 4. 5. 6. 7. 8. &c.7 Others are expressly limited to the Continuance of War as §14. “during the Continuance of the present War”8 and §19. during the Continuance thereof9 and §21.10 But §9. and §2o,11 are not by the Nature of them limited to War. They are not expressly and in Terms limited to Years, or to War.

5. If it is not now in force why is it bound up in the statute Book? And why was not the whole Act limited to Years, or to War.

If it is once established as a Fact that Lt. Panton acted in the Character of an impress officer, not in that of an officer of the Customs; and if it is also established as Law that no officer has a legal Right to impress a seaman; our next Enquiry must be what the Rules of the civil Law are, relative to Homicide in Cases of Self Defence. Self Preservation is first Law of Nature. Self Love is the strongest Principle in our Breasts, and Self Preservation <the most important Duty,> not only our unalienable Right but our clearest Duty, by the Law of Nature. This Right and Duty, are both confirmed by the municipal Laws of every civilized Society.

2. Domat. 638. §6. “He who is attacked by Robbers, or by other Persons, that are armed in such a manner, as to put him in Danger of his Life, in Case he does not defend himself, may kill the Robber or the aggressor, without any fear, of being punished as a Murderer.”12

Woods Inst. civ. Law. 270. “Necessary Homicide is when one for the Defence of his own Life kills the Aggressor. This may be done without expecting the first Blow, for that may make him incapable to defend himself att all. But this ought not to exceed the Bounds of self defence.13 The manner of self Defence, directs that you should not kill, if you can by any means escape,” &c.14

Cod. Lib. 9. Tit. 16. 2. “De eo, qui salutem suam defendit. “Is qui aggressorem vel quemcunque alium, in dubio vitae discrimine constitutus occiderit, nullam ob id factum, calumniam metuere debet. “3. Si quis Percussorem, ad se venientem gladio repulerit, non ut homicida tenetur: quia defensor proprise solutis in nullo peccasse videtur. “4. Si, (ut allegas) latrocinantem peremisti: dubium non est, cum qui inferendae caeedis voluntate prascesserat jure caesum videri. “Liceat 46 cuilibet aggressorem, nocturnum in Agris, vel obsidentem vias, atque insidiantem praetereuntibus, impune occidere, etiamsi miles sit: melius numque est bis occurrere, et mederi, quam injuria accepta vindictam perquirere.”

“Note 46. Homicida non est, qui aggressorem, in vitae discrimine constitutus, interficit nec primum ictum, quis expectare debet, quia irreparabilis esse potest.”15

Gail. Page 503. Poena homicidii corporalis, nunquam habet locum, nisi in Homicidio voluntario, quando homicidium, ex proposito, destinata voluntate, et quidem dolo malo commissum est. Debet enim verus et expressus intervenire dolus, &c. Et hoc usque adeo verum est, ut etiam lata culpa, non aequiparetur dolo, &c. Dolus non praesumitur regulariter, &c. Quapropter dolum allegans, eum probare debet, &c. Natura enim bona est, a suis Principiis. Ex hac principali Regula, quod videlicit Poena ordinaria, in Homicidio requirat dolum, multa singularia, et quotidie usu venientia inferri possunt. Et primo, quod Homicidium, cum moderamine inculpate tutelar commissum non sit punibile puta, si quis provocatus se cum moderamine inculpate tutaelae defendat, et aggressorem occidat: talis enim Homicida non puniri, sed plene absolvi debet, idque triplici ratione confirmatur. Primo quod Defensio sit Juris naturalis, et omni Jure permissa. Deinde quod Aggressor, sive provocans, non ab alio, sed a seipso occidi videatur. Et per consequens, quod provocatus non censeatur esse in Dolo. Tertio, quia occidens ad sui defensionem, non committit maleficium, cum vim vi repellere liceat, et ubi non est Delictum, ibi Pcena abesse debet.

Et regulariter ex communi opinione, Aggressus, praesumitur omnia facere ad sui defensionem, non autem ad Vindictam Necessitas, Doli Praesumptionem excludit, &c. &c. Ratio, quia necessaria Defensio, omni Jure, etiam divino permissa et sine peccato est. Defensio autem moderata, sive cum moderamine inculpatae tutelar dicitur, quando quis non potuit aliter se ab offensione tueri &c.

Praesumitur autem in Discrimine Vitae quis constitutus, eo ipso, quod ab alio, armata manu, et Gladio evaginato aggreditur, terror ille armorum aliquem in Vitae Discrimen adducit, &c.

Sed quid si provocatus modum inculpatae tutelae excedat, et Aggressorem in fuga occidat, an Poena ordinaria legis Corneliae &c. plectendus sit? Minime, sed extra ordinem, Judicis arbitrio, ratione excessus puniri debet, &c. Ratio, quia ut paulo ante dictum, in provocato non { 328 } praesumitur Dolus, et animus occidendi, aut Vindictae studium, sed potius Defensionis Necessitas. Nee etiam fugere tenetur, si fuga ei Periculum Vitae adferret. Provocatus enim tanquam intense dolore commotus, non est in plenitudine Intellectus: metus improvisus, instantis Periculi tollit Rectum ludicium, et consilium deliberandi, et ideo dicunt DD. quod provocatus non habeat Stateram in manu, ut possit dare ictus, et Vulnera ad Mensuram &c. Puniendus igitur provocatus pro isto excessu, non ut dolosus, quia provocatio praecedens a dolo excusat, sed ut culpabilis, &c.

Adeo autem defensio favorabilis est, ut etiam tertius, puta, Amicus, provocati, si intercedendo, aggressorem occidat, excusetur a Poena ordinaria.16

Page 509. Sexto infertur, quod Homicidium Calore Iracundiae perpetratum, non puniatur Poena ordinaria, quod est intelligendum de Iracundia lacessita, quando quis ab alio verbis injuriosis, ad Iram provocatur, nam eo casu ita excusat Poena ordinaria &c. quo pertinet, quod supra dictum est, hominem intense dolore permotum, non esse in Plenitudine Intellectus, &c.17

Maranta Page 49. Pars. 4 Dist[inctio] 1. 77. Hoc patet, quia Homi• { 330 } cidium commissum per culpam, dicitur crimen extraordinariam, et punitur poena arbitraria, &c. Ubi si maritus occidit uxorem deprehensam in Adulterio, non punitur poena mortis, sed alia poena corporali mitiori; et ratio est, quia tale Homicidium dicitur culposum, et non dolosum, ex quo difficile fuit temperare justum dolorem cum ergo ex proedictis appareat, quod homicidium culpa commissum puniatur poena arbitraria et extraordinaria; sequitur de necessitate quod non potest Judex imponere Poenam mortis, quae est poena ordinaria; &c.18 Sed vid. Ld. Ray. 149619 and Barringtons Observations on the Statutes page 54, bottom, Note.20

So much for the Distinction between Homicide with Deliberation and without Deliberation, according to the civil Law, which [is] analogous to that of the common Law between Murder and Manslaughter.21 But, the Case of these Prisoners does not require this Distinction. I am not contending for the Sentence of Manslaughter, against my Clients. I think they are intituled to an honourable Acquittal. They have committed no Crime whatever, but they have behaved with all that Prudence And Moderation, and at the same Time with that Fortitude and Firmness that the Law requires and approves.

Mr. Panton and his Associates and Attendants, had no Authority for what they did. They were Trespassers, and Rioters. The Evidence must be carefully recapitulated, their Arms, Swords, Pistals, &c. their Threats and Menaces. Pantons orders for more Men, his orders to { 331 } break down the bulk Head. Their Execution of these orders, their fetching the Adz and the Crow, but above all their Discharge of a Pistal, right in the face of Corbit, which tho loaded only with Powder, wounded him so badly in his Lip, these Circumstances are abundantly sufficient to shew who was the first Aggressor, and to shew that the Lives of the present Prisoners were in danger. What could Corbit think? when a Pistol had been presented at his Mouth and discharged, loaded he knew not with what. It had wounded him, he knew not how badly. <He had reason to suppose> He saw a desperate Gang of armed Sailors, before him, other Pistals, cocked and presented at him, and his Companions, their Heads and Breasts, drawn swords in the Hands of some, continual Threats to blow their Brains out, could he expect any Thing but Death? In these Circumstances what could he do? but defend himself, as he did? In these Circumstances what was his Duty? He had an undoubted Right, not merely to make a push at Lt. Panton, but to have darted an Harpoon, a dagger thro the Heart of every Man in the whole Gang.

If Mr. Panton came as a Custom house Officer, and it may be true that he came in Part, to search the Ship for uncustomed Goods, he had a fair Opportunity to do it. He <ordered> asked and was told, that the Hatchways were open. He ordered the Lazaretto open and it was done, and after this instead of searching for uncustomed Goods he proceeds directly to search for Seamen.

The Killing of Lt. Panton was justifiable Homicide. Homicide se defendendo.

1. Hawkins 71. §[14], middle. “The Killing of dangerous Rioters, by any private Persons, who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private Person seems to be authorised by the Law to arm himself for the Purposes aforesaid.”22

Same page §21. “A Woman [who] kills one who attempts to ravish her, may be justified.”23

Page 72. §23, towards the End, “It seems that a Private Person, and a fortiori an officer of Justice, who happens unavoidably to kill another in endeavouring to defend himself from, or suppress dangerous Rioters, may justify the fact, inasmuch as he only does his Duty in Aid of the public Justice.”24

§24. “I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatever, in such manner as { 332 } plainly shews an Intent to murder him, as by discharging a Pistall or pushing at him with a drawn sword, may not justify killing such an Assailant.”25

Page 75. §14. “Not only he who on an assault retreats to a Wall, or some such Streight beyond which he can go no further, before he kills the other, is judged by the Law to act upon unavoidable Necessity: But also he who being assaulted in such a manner and such a Place, that he cannot go back without manifestly ind[ang]ering his Life, kills the other without retreating at all.”26

Keyling. Page 128. Bottom. “It is not reasonable for any Man that is dangerously assaulted, and when he perceives his Life in danger from his Adversary, but to have Liberty for the Security of his own Life, to pursue him that maliciously assaulted him; for he that hath manifested that he hath Malice against another is not fit to be trusted with a dangerous Weapon in his Hand.”27

Keyling. Page. 136. Top. Buckners Case. Imprisoned injuriously without Proscess of Law, &c.28

Page 136. 3. Bottom, “sdly. If a Man perceives another by force to be injuriously treated, pressed and restrained of his Liberty, tho the Person abused, doth not complain,29 &c. and others out of Compassion shall come to his Rescue, and kill any of those that shall so restrain him, [that is] Manslaughter.”30

Keyling. 59. Hopkin Huggetts Case, who killed a Man in attempting to Rescue a Seaman impressed without Warrant.31

2. Ld. Raym. Queen vs. Tooley & als. The Case of the reforming Constables. Holt. 485.32

Holt. 484. Maugridges Case.33

Foster. 312. 316. Vid. Foster 292 the smart &c. for Manslaughter. Also 296.34

A Question has been started by Sir Francis Bernard, whether, (as there is no Distinction between Murder and Manslaughter, in the civil Law,) the Court can allow Clergy, if they find the Prisoners guilty of Manslaughter? i.e. whether the Court can do any Thing but pass sentence of Death and Respite Execution, and recommend them to Mercy? He said he had formerly attended at the Admiralty sessions in England, and had heard it said by the Court, that Clergy was expressly taken away by these statutes from Manslaughter, and the Court could not grant it.

But see a Paragraph in Foster to the Contrary. 288.35

In this Case, I shall not make a Question whether Corbit and others are guilty of Murder, or of Manslaughter. I am clear they are guilty of Neither. All that they did was justifiable Self Defence, or to use the Expressions of most Writers upon Crown Law, it was justifiable and necessary Homicide, se defendendo. This will be fully shewn, by a particular Examination of the Law, and of the Evidence.

But it may not be amiss to consider, the observation of Sir Francis, in order to remove the Clouds from his Brain, 1. It is total Ignorance to say there is no Distinction between Murder and Manslaughter, in the civil Law, as appears abundantly, already.†36 2. I say that Clergy is not expressly taken away by the statutes, from Manslaughter. By the 28. H. 8. all Felonies are to be tryed according to the Common Course of the Laws of this Land. What is the common Course of the Laws of the Land, relative to Manslaughter, which is a Felony? It has its Clergy. It is true the Word Manslaughter is once mentioned in the statute of H. 8. Every Indictment found, &c. of Treasons, Felonies Robberies, Murthers, Manslaughters, or such other offences, &c. then such, order, &c. Judgment and Execution, shall be had, as { 334 } against such offences upon Land.37 What is the Judgment vs. Manslaughter upon Land? They have their Clergy. §3. For Treasons, Robberies, Felonies, Murthers, and Confederacies done at sea, the offenders shall not have Clergy. Here Manslaughter is dropped. So that Clergy is not taken from Manslaughter by this Act.

By 11. and 12. W. 3. Piracies, Felonies and Robberies, are mentioned, but Manslaughter is not. The Word is not in the whole statute. It was needfull to mention it in that of H. 8. because the Tryal was to be by the Law of the Land, and it clearly has its Clergy. But by this statute the Tryal, and Judgment and Sentence were to be all by the civil Law, where the Offence that is called Manslaughter by the common Law, is never punished with death. But it is observable that Clergy is not taken away by this statute from any Crime.

By 4. G. c. 11, §. 7. any Pirate Felon or Robber, within the 11. and 12. W. may be tryd in the manner and Form of 28. H. 8. and shall be excluded Clergy.38 We see that whenever the Tryal is to be by a Jury and the common Law, Clergy is excluded, from such Crimes as were not intituled to it upon Land, and the Reason was because it is a known Rule of Law, that when the Legislature creates any new felony, it shall be intituled to Clergy if not expressly taken away. Doubts might arise, whether making Crimes at sea Felonies, was not creating new felonies, and so they would be intituled to Clergy. To avoid this the Clause was inserted.

† Sed vid. Ld. Ray. 1496.39 And especially Barringtons Observations on the Statutes page 54, bottom. Note.40

Barrington. 54. “By the Law of Scotland there is no such Thing as Man Slaughter, nor by the civil Law; and therefore a criminal indicted for Murder, under the Statute of Henry the Eighth, where the Judges proceed by the Rules of the civil Law, must either be found guilty of the Murder or acquitted.”

Ld. Ray. 1496. “From these Cases it appears, that though the Law of England is so far peculiarly favourable (I use the Word peculiarly, because I know no other Law, that makes such a Distinction between Murder and Manslaughter) as to permit the Excess of Anger and { 335 } Passion (which a Man ought to keep under and govern) in some Instances to extenuate the greatest of private Injuries, as the taking away a Mans Life is; Yet in these Cases, it must be such a Passion, as for the Time deprives him of his reasoning Faculties;”41

Foster 288.42 If taking general Verdicts of acquittall in plain Cases of Death per Infortunium, &c. “deserveth the Name of a Deviation, it is far short of what is constantly practised at an Admiralty sessions, under 28. H. 8 with Regard to offences not ousted of Clergy by particular Statutes,43 which had they been committed at Land, would have been intitled to Clergy. In these Cases the Jury is constantly directed to acquit the Prisoner; because the Marine Law doth not allow of Clergy in any Case, and therefore in an Indictment for Murder on the high seas, if the fact cometh out upon Evidence to be no more than Manslaughter, supposing it to have been committed at Land, the Prisoner is constantly acquitted.”

Observations on Statute 422. Note (z). “I have before observed, that by the civil Law, as well as the Law of Scotland, there is no such offence as what is with us termed Manslaughter: The Scotts, therefore might have apprehended, that if not convicted of Murder they should have been acquitted.”44

On 28 November 1772 Adams wrote in his diary, “The Conversation of the Town and Country has been about the strange Occurrence of last Week, a Piracy said to have been committed on a Vessell bound to Cape Cod, 3 Men killed, a Boy missing, and only one Man escaped to tell the News—a misterious, inexplicable Affair!”1 The later trial of Ansell Nickerson, the “one Man escaped,” for the alleged murder, with Adams and Josiah Quincy Jr. as defense counsel, was only to deepen the mystery.

Nickerson had sailed on 14 November from Boston for Chatham as passenger aboard a small fishing schooner under the command of his cousin Thomas Nickerson. In the crew were Sparrow Nickerson, brother to Thomas; their brother-in-law, Elisha Newcomb; and William Kent, a boy of thirteen. About ten o'clock in the morning of Sunday the 15th, Captain Joseph Doane Jr., of Chatham, having sailed from that harbor, sighted the schooner between Chatham and Nantucket, flying a signal of distress. On boarding her, Doane found only Nickerson, “who appeared to be in a great Fright,” but who was able to report that about two o'clock that morning those aboard the fishing vessel had seen “a Topsail Schooner, who brought them to, and sent a Boat on board, and after questioning them returned again—Soon after four Boats with armed Men came back from the Schooner.”2

Nickerson, “fearing he should be Impressed, got over the Stern and held with his hands by the Taffarill,3 with his Feet on the Moulding, under the Cabin Windows. That whilst he was thus hanging over the Stern he judges by what he heard that the Master, with his own Brother, and a Brother-in-Law, named Newcomb, were murdered and thrown overboard, and a Boy named Kent, carried away alive, as they said, in order to make Punch for them—That he heard a Talk of burning the Vessel, but it was finally agreed to leave her to drive out to Sea with her Sails standing. That after perpetrating this inhuman Deed they plundered the Vessel of a considerable Quantity of Cash,4 knocked out the head of a Barrel of Rum, and after wasting the greatest Part of it, went off with the money and other Booty; tho' they left behind a Quarter of fresh Beef & a number of small Stores.—That when they left the Vessel, he came upon Deck, he found none of the Crew, but saw the Marks of blood, and supposes they were murdered.”5

Doane apparently brought the schooner into Chatham, and then sent his account of the episode to Edward Bacon, a justice of the peace in Barnstable. Bacon forwarded Doane's report to Governor Thomas Hutchinson in Boston, and went himself to Chatham on the 16th, where, with another justice, he formally examined Nickerson, who had returned from some unexplained wanderings (Document II). Bacon then dismissed him with the consent of the father of the two deceased Nickersons. In the meanwhile, the Lively man-of-war was sent out from Boston to search for the supposed pirate.6 On the 19th Bacon's examination reached Hutchinson, who, finding “Every part of the passenger's [Nickerson's] account . . . incredible,”7 consulted with “such of the Commissioners for the trial of Piracies, &c. as were in Town,”8 and issued a warrant for Nickerson's apprehension. This order reached Barnstable by express at midnight on the 20th. There Nickerson was in jail, the local justices having had second thoughts about his story. He had been taken into custody again, re-examined, and committed, “in order to receive Directions from the Governor.” Finally, on the 22d, Nickerson was brought under guard to the Province House at Boston, where Hutchinson, Admiral John Montagu, Lieutenant Governor Andrew Oliver, and Secretary Thomas Flucker, all Commissioners for the Trial of Piracy, examined him from seven until eleven in the evening, and ordered him held for trial.9

The Lively returned after a fruitless search,10 and a Special Court of Admiralty for the Trial of Piracies was thereupon convened. There were some, according to Hutchinson's later account, who “were ready enough to charge the piracy and murder to a king's schooner, then expected from Rhode Island,” and the Sons of Liberty “professed to make no doubt of its being a man of war schooner; and the governor was charged in the publick prints with too critical and severe an examination of the prisoner, whose innocence, it was said, would appear.” The old cry that an Admiralty trial deprived the accused of his right to a jury was also raised,11 but the Commissioners were not deterred. On 16 December, at a sitting of the Special Court, “an Information was filed and exhibited by Ezekiel Price appointed Register of the said Court, against Ansell Nickerson, a Prisoner in his Majesty's Goal, for the murder of Thomas Nickerson, jun., on the High { 338 } Seas on the 14th of November last.” Nickerson pleaded Not Guilty, and, upon motion for time to prepare his defense, he was remanded to jail, and the court adjourned until 2 June 1773.12

When the day set for trial arrived, the court did not convene, according to one account, because “some matters of greater importance,” presumably the investigation of the burning of the Gaspee, “employ at present the time of several members.”13 Nickerson was again examined, however, on the basis of new evidence which was said to militate against him.14 Finally, in the middle of July trial was set for the 28th of that month.15

According to Adams' later recollection, “I was of counsel for Nickerson, but was not engaged till the trial came on, when he requested the court to appoint me.” This arrangement seems to have been made sometime after 28 July 1773,16 when the proceedings actually began. A contemporary account relates that witnesses on both sides were examined from that day until the evening of Friday the 30th. The court then adjourned until Tuesday, 3 August, when Samuel Fitch, Advocate General, after examining several additional witnesses for the Crown, made his opening argument (Document II).17 Fitch first argued that Nickerson was properly before the Special Court, though charged with murder, since that offense, as well as taking the vessel, constituted piracy. Then, after citing authorities on the nature of circumstantial and presumptive proof, he launched into an extensive review of the evidence. The burden of his argument was that the inherent improbabilities of Nickerson's account were a strong indication of its untruth; that the facts would as well support the Crown's version of the affair; and that the accused had had ample time to bring ashore unobserved the money, theft of which was supposed to have been the motive of his acts.

On the afternoon of 3 August, Adams and Josiah Quincy Jr., began their { 339 } argument, which was to last through the next day.18 Quincy apparently opened, probably with a review of the evidence. All that has survived, however, are Adams' fragmentary notes of authorities cited by Quincy, which indicate that the latter concentrated heavily on the quantum of proof needed for conviction where the evidence was wholly circumstantial except for the accused's own statements (Document II). Adams first briefly discussed the information, then made an argument drawn from his experience in Rex v. Corbet, No. 56, that since the court sat in Admiralty it should apply the civil-law doctrine that the crime of manslaughter was not punishable by death. He then launched his main attack on Nickerson's several examinations before various officials, treating them as confessions, in which the favorable as well as the unfavorable must be admitted, and attacking their admissibility generally. Next he proceeded to set out authorities, familiar to him both from Corbet and Sewall v. Hancock,No. 46, requiring that proof be certain and consistent in criminal cases. He closed with observations upon Fitch's treatment of the evidence (Documents I, III).

On Thursday afternoon, 5 August, Fitch “closed the cause,” and the Court, after telling the prisoner that if he had more to say in his defense he could say it the next day, adjourned until the morning of the 6th. When the Court reconvened, Nickerson “express'd his Wishes that certain Witnesses (who he apprehended would testify in his Favor) had been present; and concluded with saying that, 'if I lose my Life, I am innocent of the Crime laid to my Charge.'” The court room was then cleared, and the Court undertook to consider the evidence. After two and a half hours the prisoner was called in, and “the President [Hutchinson], after a solemn Pause, told the Prisoner, 'The Court have considered of your Offence, and they do not think that the Evidence offered to them is sufficient to support the Charge alledged against you in the Information—and therefore adjudge you  not guilty.'” On motion by Nickerson's counsel, the Advocate General not objecting, he was discharged. “The Prisoner being informed of it, respectfully bowed to the Court, and said, 'I thank the honorable Court —and GOD—for my deliverance!'” As a contemporary newspaper put it, “Thus ended a Trial, for the most surprizing Event, which has happened in this, and perhaps any other Age of the World.”19

Later accounts by Hutchinson and Adams differ as to the reasons for the acquittal. The newspapers had reported that, the court being divided four and four on the question, “An Acquittal of the Prisoner followed of Course.”20 Hutchinson, who made no bones about his certainty that Nick• { 340 } erson was guilty, confirmed the report of the court's division, but said that the crucial issue was a procedural one. The statute, 11 & 12 Will. 3, c. 7 (1700), under which the court was constituted, gave jurisdiction in piracies and other “felonies,” excluding murder, according to the opinion of the Crown law officers in England. The information charged Nickerson with piracy only, but alleged the murder to support it. Four of the Court held that to convict of piracy would be to convict of murder, and thus to exceed their jurisdiction.21 Adams' notes show that Fitch argued this point (Document II), and suggest that Adams briefly replied (Document III). Adams did not, however, in his subsequent recollections see this as the critical question. He admitted that he did not know the basis of the acquittal, but guessed that the court was moved by lack of direct evidence, and consequent doubt of Nickerson's guilt, a doubt which he shared himself.22 Either version of the acquittal is supported by the language of the court's decision.

Nickerson himself, who, according to Adams, thereafter “lived many years, and behaved well,”23 did not seem to be overly grateful to his counsel. His comments before and after his discharge at the trial, already quoted, suggest a certain lack of appreciation for their efforts, and a tendency to credit his release to other agencies. Adams later reported that “He had nothing to give me, but his promissory Note, for a very moderate Fee. But I have heard nothing from him, nor received any Thing for his note, which has been lost with many other Notes and Accounts to a large Amount, in the distraction of the times and my Absence from my Business.”24 This note, dated 30 July 1773, for £6 13s. 4d. has been found, too late to enforce payment, and still remains, unreceipted, in the files of the Adams Papers.25

Woods. Inst. 675, middle. “The Confession of the Defendant to private Persons, or to a Magistrate, out of Court, is allowed to be given in Evidence against the Party confessing; but this Confession cannot { 341 } be made use of against any other. But where a Man's Confession is made use of against him, it ought to be taken alltogether, and with that part which makes for him as well as with that which makes against him.”2

Vin. Tit. Evidence, page 95. A. b. 23. “3. In an Information for publishing a Libel, the Defendants own Confession was given in Evidence against him, but per Holt C.J. if there was no other Evidence against him but his own Confession, the whole must be taken, and not so much of it as would serve to convict him. 5. Mod. 167. King v. Pain. Hill. 7. W. 3.” Note. “So if to prove a Debt it be sworn that Defendant confessed it, but withal said at the same Time, that he had paid it, this Confession shall be valid as to the Payment, as well as to his having owed it. Per Hale Ch. J. and so is the common Practice. Try. per Pais 209.”3

Vin. Tit. Evid. p. 96. Top. “4. Confession is the Worst Sort of Evidence.” i. e. &c.4 “6. The Examination of the Prisoner himself (if not on oath) may be read as Evidence against him; but the Examination of others (though not on oath) ought not to be read if they can be produced, viva voce.”5

2. Bac. Abr. 313 “Of the Parties Confession. “But wherever a Mans Confession is made use of against him, it must be taken alltogether and not by Parcells.” 2. Hawk. 4296

2. Try. Pr. Pais 427. Same as Viner.7

5. Mod. Rex vs. Paine. 165. “If Confession shall be taken as Evidence to convict him it is but justice and Reason, and so allowed in the Civil Law, that his whole Confession shall be Evidence as well for as against him.” Page 167, middle, “if there was no other Evidence against him but his own Confession, the whole must be taken <together>, and not so much of it as would serve to convict him.”8

2. Hawk. P.C. 429. “§5. It seems an established Rule, that wherever a Mans Confession is made use of against him, it must all be taken together and not by Parcells.”9

2. Hale. H.P.C. 290. “Never convict of Murder or Manslaughter unless the Fact be proved to be done or at least the Body found dead.”10

4 Black. 352. Fourthly.11

Dig. Lib. 29. Tit. 5. §24. “Nisi constet aliquem esse occisum, non habui de familia quaestionem.”12

2 Domat. 667.13

Woods Inst. 310 “In Criminal Cases, the Proofs ought to be as clear as the sun at Noon day.”14

Cod. Lib. 4. Tit 19. §25. De Judiciis criminalibus. “Sciant cuncti accusatores eam se rem deferre in publicam notionem debere, quaemunita sit idoneis Testibus, vel instructa apertissimis documentis, vel indiciis, ad probationem indubitatis, et luce clarioribus expedita.” Vid. notes also.15

Maranta. page 49. pars 4. dist. 1. 77.16

Gail. Page 503. “debet venis et expressus intervenire Dolus,” &c. “Lata culpa, non aequiparatur dolo.” &c. “Dolus non praesumitur,” &c. “Quapropter dolum allegans, eum probare debet.”17

Page 509.18

Examen Juris canonici 335. 343. Quid est confessio et quid operatior extra judicialis Confession in criminalibus.19

Maranta. Sp. Aur. 313. 114. especially.20 See Calvins Lexicon Tit. confiteri. Capitulum.21

2. Cor. Jur. Can. 118 page of the Inst. De probationibus.22

Number of Witnesses.

New Institute of the civil Law page 316. 2.23 Dig. Lib. 22. Tit. 5 §12.24

Cod. Lib. 4. Tit. 20. §9. §1. and Notes.25

St. Tryals. V. 8. page 213. Tryal of Captn. John Quelch and others, at Boston.26

St. Tryals. V. 6. 156. Tryal of Major Stede Bonnett at So. Carolina, and 33 others.27

Statutes. 28. H. 8, c. 15. “For Pirates.” 11. & 12. W. 3, c. 7. for the more effectual Supression of Piracy. 4 G, c. 11. For the further preventing of Robbery &c. and for declaring the Law upon some Points relating to Pirates. §7.28

Foster 288.29 Barrington 54, bottom, Note.30

Fitch. Not charged with Murder. But as the Killing constitutes Pyracy.

11. & 12. W, c. 7, §9.2

Petit Treason at common Law. 25. Ed. 3. defined Treason.3 Confining the Master, and taking Vessel into Possession and robbing him is Pyracy.

Evidence presumptive. No Witnesses who saw the Transaction.

1. Domat. 413. T. 6. That a Proof which convinces the Mind.4 414. Signs, Tokens, Conjectures, and Presumptions.5

2. Sorts of Presumptions, 1. Proofs. 2. Only conjectures without Certainty. A necessary Connection.6

430. §4. Presumptions of 2 Kinds. Conjectures leave doubt.7

2. Domat. 666.8

Wood civil Law. page 302. Proof—plena, 2 Witnesses. 2 half proofs make one whole one.9

305. 6. Confession, not conclusive alone. Ought to admit the whole. —See this by all Means.—Defence must be proved.10

Appeal to the human Mind that it is impossible to divide his Confession.11

The 4 Persons were on board and said12 with Prisoner. Neg[atu]r.

All 4 kill'd.

Prisoner's own Account. Blood spilt, where they came up.

All 4 Missing 9 Mo.13 No Account of them.

What supposition can be made, consistent with common sense.

Prisoner found alone on board. All staind with blood, the decks reeking with blood.

In Possession of Vessell, and evry Thing, disposing as he thought proper.—Mem. signal of distress.14

Woman delivered alone.15

Goods taken with the Maner.16

His Account improbable, incredible. Therefore makes vs. him not for him. Improba[bi]lities.

His Design in going only to get his Cloaths. Cost him much to come back by Land.

No Wind he says.

No Ax. Crowl17 says there was. They were to [ . . . ][boards?].

Does not know the Boys Name.

None of the other Vessells saw this Schooner.

None heard the Gun but him.

Incredibility that there should have been a Pirate Vessell. Boats could not board.

He said the Box was gone, tho he said he had not been down the Hold.

Rum on the Boards therefore not carried off.

Fresh Meat, Butter, Cyder, Roots, &c. not taken.

The Pirates must have trod in the blood, and left the Marks in Cabin, hold &c.

Where was the Prisoner for fear of Impress. Hanging on the Stern.

Is it possible he should have hung there a Minute.

Why did not they discover him, when on the deck and when they came under the Stern.

The Paint clean, not bruised nor broke.

Manner of getting in incredible, impossible.

Account of Coll. Doane different.18

If the Prisoner guilty would not every appearance have been as they were.

Liquor, Cyder and Rum in the Pail, and the [Cantien?] he gave, shews they were made drunk and then butch[ere]d.

Conduct after he came ashore—wandering God knows where. No Account can be given of him. An opportunity to bring <it> ashore, the Money.

Confident he should be discharged.

Went a little Way, felt poorly, when he came back. The Witnesses say he could not go on board the Vessell then, but he might go where the Money was hid.

All Night absent going to his Grandfathers. He pretended he was lost.

Went to the Hay Yard to the End of the Stack, to get hay for his Horse.

7 Months after, an handkerchief found.

Otis Lorings Account—dont tell me, where[.]

J. Quincy. Altogether presumptive.

Wood civ. Law 276.19

Hawk. P.C.20

Viner. Ev. p. 95.21

Dig. 42. Tit. 2.22

Cod. 7. Tit. 59.23

1. Domat. 430. Thus in a criminal Action, &c.24

2. Domat. 668. 9. Consequences from certain facts, known and proved. The natural and necessary Connection between the facts proved, and those inferred.25

670.26

2. Domat. 618.27

1. Ld. Bacon. 251.28

2. <Hawk.> Hale P.C. 289.29

Ayliff 447. 8.30

Wood.31

Information.2

By what Rule is Prisoner to be tryed? Answer by the civil Law.

Statute 28. H. 8, c. 15. 11. & 12. W. 3, c. 7. 4. G, c. 11, §. 7. then

Foster 288. Barrington 54, bottom Note—notwithstanding St. Tr. V. 8, page 213.

It has been customary to look into both Laws, here, as it seems they do in London, at the Admiralty sessions.3

But the Principal Rule of Law upon which our defence is grounded is common to both Laws, that the Confession shall be taken alltogether.

Woods Inst. 676. Vin. Evid. page 95 A. b. 23. 3. 5. Mod. 165. 2. Hawk. 429.

Examen Juris Canonici. 335. Maranta Sp. Aur. 313. 314 especially.

2. Corp. Juris canonici 118 of the Institute de probationibus. This is no more than an extrajudicial Confession. Phillip & Mary.4

We must therefore throw all his Confessions and Examinations into the fire, and consider the Case without them.

But then by what Rules? Wood Inst. 310. Cod. Lib. 4. Tit. 19. §. 25. Maranta page 49. pars 4, dist. 1 77 Gail 503. 2. H.H.P.C. 290. 4. Blackst. 352. Dig. Lib. 29. Tit. 5. §. 24. “Nisi constet aliquem esse occisum, non habui [Familia] quaestionem.” 2. Domat 667.

Then consider Mr. Fitches Observations upon the Evidence—his Improbabilities, Incredibilities, Absurdities, Inconsistencies &c.

Until comparatively recent times the valor of naval crews was stimulated by the prospect of a share in the proceeds of enemy vessels and goods captured as prize. The complicated questions of property and the law of war which this system of hazard pay produced were adjudicated in every country by special tribunals, administering a more or less common body of international law. From its 14th-century origins the English Court of Admiralty had exercised a jurisdiction in such matters. By the beginning of the 18th century, when Admiralty's powers in other fields were on the wane, the prize side of the court had become virtually a separate institution, with sessions, rules, and records distinct from the ordinary civil, or “instance” side. Although this jurisdiction was called upon only in time of hostilities, the warlike nature of the times meant a steady demand for it, so that a substantial body of prize law developed and the Admiralty was saved from the extinction which might otherwise have been its fate.1

In the colonies, the seat of much of the warfare, there was great need for a similar forum, since trial of colonial prizes in England was impracticable. After 1660, captures were tried first in the courts established by the governors under their powers as Vice Admirals, then in the Admiralty courts created in 1697 for enforcement of the Acts of Trade. Confusion over the source of these courts' power to sit in prize was laid to rest by an Act of 1708, which provided for trial in Admiralty under a precise and simple procedure and established fixed formulas for the division of proceeds among the captors.2 Under this statute the colonial Vice Admiralty judges, empowered by special Admiralty warrant, exercised the jurisdiction through all the wars of the 18th century. One authority suggests that this branch may have amounted to as much as a third of the courts' total business.3 Although it may be assumed that the Massachusetts Vice Ad• { 353 } miralty Court sat in prize until the cessation of hostilities in the Seven Years' War in 1763, John Adams had no prize cases before it, as far as is known.

At the outbreak of the Revolution the colonists soon found that, whatever their feelings about the Admiralty had been, the prize jurisdiction was a necessary element in naval warfare. Despite the efforts of advocates of seapower, including Adams, a Continental Navy was slow to develop. George Washington put a fleet of four vessels into action off Massachusetts, and the individual colonies established small navies of their own; but privateers, vessels fitted out at private expense and commissioned by Congress or a colony to sail against enemy shipping, were the substitute upon which the colonists chiefly had to rely.4 Since profits were even more important to the privateers than to regular naval vessels, Massachusetts as early as 1775 established its own maritime court to exercise jurisdiction in prize matters. The other colonies soon followed suit, and the hated royal Admiralty courts were succeeded by a system of state courts, which, however, were usually limited to prize cases and sat with a jury.5 Congress was also quick to recognize the need for its authority in this field. In November 1775 it adopted the report of a committee of which Adams was a member, establishing regulations for privateers, defining the objects of capture, recommending that the states establish prize courts, and providing that appeals from all cases of prize in those courts would lie to the Congress. Under this measure appeals were referred to special committees, until in January 1777 a Standing Committee on Appeals was created.6

Adams was appointed to the Standing Committee in March 1777 and served until November of that year, when he left Congress for good. Despite a busy schedule, he managed to participate in much of the Committee's work.7 Its surviving file papers reveal that of eleven appeals decided during Adams' tenure, he sat on at least five. In five others the appellate papers are incomplete, so that the members of the Committee who sat cannot be determined. Thus Adams may well have been involved in additional cases.8 The papers show that the Committee, which on at least one occasion took the style “Court of Commissioners of Appeals for the American States,” viewed itself, and was viewed by Congress, as a judicial body. Thus, its procedure included provisions for notice, payment of costs, and the like, reflecting the legal background of its members. Its decisions were based on a full record of the trial below, as well as upon oral argument. These decisions were handed down with oral opinions, were in the form of judicial decrees, and were accorded the legal effect of such decrees.9

The Court of Commissioners, and Adams' role in it, deserve a full analysis, which cannot be undertaken here. Despite the limitation of the court's jurisdiction to matters of prize, it foreshadowed the United States Supreme Court as the earliest permanent judicial body with a national jurisdiction. Equally important, the court, and its successor, the Court of Appeals in Cases of Capture, provided an opportunity for the development of an appellate procedure and jurisprudence, and a bar experienced in these matters, which permitted the Supreme Court to undertake its duties in 1789 unencumbered by the need for awkward experiment. Adams, who had had to resign from the chief justiceship of Massachusetts before he could enter upon the duties of that office, was thus finally enabled to serve on the bench in a much more significant way.10 He was, if briefly, a member of what was in effect the first Supreme Court of the United States; as such, he participated in the establishment of an institution capable of handing on the appellate tradition which it began.

In November 1777, when he took leave from Congress for a much needed rest and return to personal affairs,11 Adams was probably little aware of the long-range importance of his recent judicial activities. But he was soon to discover that they were of immediate value. Shortly after his arrival at Braintree he was plunged into a prize controversy between his old client Col. Elisha Doane, one of the richest men in New England,12 { 356 } and certain New Hampshire privateersmen, which brought into play his newly acquired expertise in such matters. The case is of real interest, not only because it marks Adams' last known appearance as an active trial lawyer, but because years later, in the Supreme Court of the United States, it led to an affirmation of the supremacy of the federal courts in a matter in which the states had yielded sovereignty.

The complicated story of the litigation can be pieced together from various contemporary sources, principally the files of the Continental Congress' Court of Appeals.13 It begins in the summer of 1775, when the Cape Cod whaling fleet returned from the South Atlantic, having “proved to be tolerable successful,” and Doane, whose headquarters were at Chatham, found himself with a considerable stock of whale oil on hand. The presence of the British fleet at Boston, and its evident intention to enforce the restrictions which Britain had laid upon New England's commerce,14 meant that there was no local market for the oil. Moreover, like many a businessman whose country is on the verge of hostilities with a former trading partner, Doane had a considerable balance in his favor on the books of Lane, Son & Fraser, London merchants, as well as an unsold shipment of whalebone in their warehouse. He determined to realize upon these various assets before the worsening political situation led to their confiscation.15 Accordingly, he loaded his brigantine Lusanna, already carrying considerable oil that she had herself brought back from the whaling grounds, with additional oil and other goods and arranged that his son-in-law Shearjashub Bourne, a lawyer and recanting addresser of Hutchinson, whose business had virtually disappeared with the closing of the courts, { 357 } should go with this cargo to London and there see to its sale and to the securing of Doane's other interests.16

On 4 September 1775, a week before the effective date of the ban laid on exports to Britain by the Continental Association, the Lusanna, Matthew Wood master, sailed from Wellfleet, having earlier cleared out at the custom house in Plymouth. Her cargo consisted of 101 casks of spermaceti oil and 37 casks of head matter belonging to Doane and consigned to Lane, Son & Fraser; 208 casks of spermaceti oil and 82 of head matter, belonging in part to Doane and in part to some of his whalemen, consigned to Bourne; and a quantity of staves and cord wood, belonging to Doane and also consigned to Bourne.17

The instructions which Doane gave to Bourne and to Lane, Son & Fraser were very broad. To alleviate a shortage of cash in Massachusetts, the Lusanna's outward cargo of oil was to be sold and the proceeds brought directly to Doane by Bourne. If the acts of Parliament restricting New England were repealed, thus leading to the abrogation of the Continental Association, Bourne was to freight the Lusanna home with English goods, bought with Doane's London credits. If the Acts were not repealed, Bourne was to use Doane's funds to send the Lusanna with a cargo to the West Indies to be exchanged there for goods which did not violate the colonial ban on imports. If this was impossible, he was to carry English goods to Nova Scotia, take on a new, nonrestricted cargo there, clear out for the British West Indies, and come directly to Cape Cod. In any event he was to use his judgment in light of all the circumstances.18

Only a week after his departure Bourne met the setback which was to turn his trip from an ordinary if risky commercial venture into an epic voyage of mischance and duplicity. On 11 September, off Sable Island, { 358 } about 200 miles east and south of Halifax, the Lusanna was “met by a violent gale of wind from E, and then shifting to ENE shattered our sails and rigging to a great degree carryd away our foretopmast without any canvas Spread and caused the brig to leak very much.”19 Thus damaged, she was forced to put into Halifax for repairs; on entering the harbor there, she was seized by a boat belonging to the Somerset man-of-war. The Lusanna was held for three weeks, although, according to Bourne, the attorney general at Halifax had ruled that all her papers were in order and that she was not in violation of any Act of Parliament.20 Finally she was released by order of Admiral Graves at Boston, and repairs were undertaken.

When the Lusanna was almost ready for sea, she was seized again on 28 October, apparently by virtue of new orders received by the Admiral from England, requiring all New England vessels to be detained until further notice.21 Bourne at once left for Boston, where he procured the vessel's release, reportedly on condition that he take out a new register in Halifax, listing the vessel as of that port.22 At the time it was rumored that he had also agreed to bring a cargo back to Halifax.23 It is even possible that in his negotiations with Admiral Graves he had adopted the role of fleeing loyalist which he later played in England to his subsequent embarrassment, but there is no evidence of this. Whatever Bourne's tactics, his success is attested by the fact that the Lusanna left Halifax, probably early in January, and arrived in London, “after a tedious passage,” sometime in March.24

Once in England, Bourne set about his assignment. The oil market was not at a desirable pitch in the spring of 1776, but, by October, Lane, Son & Fraser were able to report to Bourne that they had sold a good portion of the oil at a price near that which Doane had wanted, and that they expected little difficulty in selling the remainder.25 Bourne could not yet come home, however. He feared that an American vessel of ambiguous loyalties { 359 } in London at that period would excite a certain amount of suspicion, and he deemed it unwise to hazard apprehension by the British until conditions improved.26 Other affairs kept him busy. Although witnesses later testified that Bourne had refused to charter the Lusanna to the military transport service, Lane, Son & Fraser got her a cargo to Gibraltar, which the evidence indicates was at least in part military stores. After having been registered again, this time as belonging to Shearjashub Bourne “of London,” she sailed for the Mediterranean at the end of September 1776, returning in February or March of the following year.27

Bourne was also charged with establishing correspondence with a London merchant for a new venture in the commission sale of “Oil, Pot and Pearl ashes &c.,” in which he, Doane, and Doane's son Isaiah sought to embark. No details of his “plan” for this enterprise have been uncovered, but he was able to report that he had “settled the correspondence come out for with the best house in England for our interest . . . so that nothing prevents a prosecution but the American war.” At the same time he took advantage of his enforced stay to travel around England, meeting influential merchants and learning as much as he could about manufacturing, markets, and trade, for future commercial use.28

Another matter which concerned Bourne was Doane's claim to a part of the cargo of the brigantine Industry, which had sailed from Wellfleet on 12 September 1775 and was seized off Plymouth on the same day by a British naval vessel. Aboard her were an additional 102 casks of whale oil belonging to Doane, consigned to Bourne or to Lane, Son & Fraser in London. A claim had been entered on behalf of the Industry's owner for vessel and cargo, but on 12 October both were condemned in the Massachusetts Vice Admiralty Court for failure to give bond as required by the Restraining Act of 1775.29 The troubled conditions in Massachusetts had { 360 } prevented Doane from making an appearance in the suit. When Bourne heard of this he procured from Doane a power of attorney to act in the matter, and a certificate of the collector of customs at Plymouth that he had not had the proper forms available when the Industry had cleared.30

Extracts from Bourne's journal, and a memorial which he submitted to the Treasury in England, show that, for this purpose at least, he had assumed full loyalist coloration. He sought and obtained the favor of Thomas Hutchinson in London as he pressed his cause, and in the memorial told a sad tale of his flight from the colonies and his persecution at the hands of the villains who now were running the country. This document, prepared in January 1777, did at least reach the proper committee, but the claim was apparently rejected on the basis of an adverse opinion by Daniel Leonard, formerly of the Massachusetts bar, now solicitor to the American Customs Commissioners in London. Leonard found that Bourne could have had no interest in the voyage, that the owners had probably intended to bring back military supplies to the rebels, and that the collector had cleared her only under duress.31 An unintended result, however, was that journal and memorial were offered in evidence on the subsequent trial of the Lusanna as prize, doubtless contributing substantially to the jury's determination against Doane.32 Unfortunately for Doane and Bourne, Leonard's opinion was not available as a counterweight.

While he was pursuing the Industry claim, Bourne was apparently also seriously considering means of getting home. According to the later testimony of David Smith, a Cape Cod whaling captain who met him in London in February 1777, Bourne had at that date already developed what was essentially the scheme that he would later unsuccessfully attempt to carry out. When the last of the whale oil was sold, he planned to purchase a partial cargo for the Lusanna with £2000–3000 of Doane's funds, then take on other cargo for Halifax to avoid suspicion and clear out for that port. In Halifax he would obtain the remainder of Doane's English funds by negotiating bills of exchange on Lane, Son & Fraser, then clear the Lusanna out for the British West Indies with Doane's goods still aboard and the cash in his strongbox. En route to the latter destination it would be a simple matter to put into a port on Cape Cod or other friendly territory.33

Whether this was the plan or not, the Lusanna began loading in June 1777 and cleared out at London for Halifax at the end of July. About 20 August, she left London, actually sailing from the Isle of Wight on 13 September.34 Her cargo included various goods to the value of about £2000, consigned by Lane, Son & Fraser to Bourne at Halifax, and provisions and liquors worth about £200 consigned by Bourne to himself or Messrs. Thomas Cochran & Co., Halifax merchants. Witnesses later said that Bourne claimed the ownership of all of these goods. The Lusanna also carried miscellaneous merchandise shipped by eight other English merchants, some of it consigned to Bourne, the rest to specific consignees in Halifax.35 Several passengers were aboard,36 as well as goods belonging to Captain James Shepherd, a Bostonian who had left London aboard the Lusanna after a fruitless attempt to appeal the seizure of his ship at Halifax a year earlier. Shepherd had been forced to remain at Cowes on the Isle of Wight, when he had been taken sick just before sailing, but his goods stayed aboard, consigned to Bourne.37

Bourne carried with him letters of introduction not only to Halifax merchants, but to Captain William Spry, “Commanding Engineer” there, which recommended him highly and spoke of his intention to remain at his destination, chartering the Lusanna as a transport until the war should end.38 He also carried two letters of credit, permitting him to draw up to £7000 against funds in the hands of Lane, Son & Fraser, in London.39 His own letter of instructions to Messrs. Cochran indicates the somewhat ambiguous nature of his intentions.

He wanted to sell the goods shipped by others for the interest of the shippers. The provisions shipped by Bourne, which he described as “belonging to myself,” were to be sold for his own interest, and an accounting { 362 } made with Bourne, Lane, Son & Fraser, or Doane. The goods in the amount of £2000 shipped by Lane, Son & Fraser, which Bourne also claimed as his, were to be stored until further orders from Doane, Lane, Son & Fraser, or Bourne, and the Lusanna was to be laid up on the same terms.40

The Lusanna sailed as part of a fleet in convoy with the British frigate Venus, but on the night of 25 October she lost her escort in the fog, and in the morning Wood and Bourne determined to proceed to Halifax as best they could. Four days later on the 30th, they sighted an American privateer, which later proved to be the McClary out of Portsmouth. The Lusanna fled, but after a chase of about an hour and a half, she was overhauled. Several broadsides were fired by the McClary, and the Lusanna, outgunned as well as outsailed, soon struck.41

The McClary brought the prize into Portsmouth, where on 11 November 1777 she was libeled in the Court Maritime of the State of New Hampshire.42 The libelants were John Penhallow and Jacob Treadwell, representatives of the fifteen Portsmouth merchants who owned the privateer; and George Wentworth, agent for the crew, who was also a Portsmouth merchant and the brother of one of the owners.43

Bourne at once began a desperate search for counsel; not only were there considerable sums at stake, but the circumstances of the capture were such that his loyalty to the American cause might be questioned. Oliver Whipple, a Portsmouth lawyer, was engaged to watch over the preliminaries. On 17 November, Bourne wrote for assistance to Robert Treat Paine, who had not returned to Congress after his reelection in December 1776, and was now a member of the General Court and Attorney General of Massachu• { 363 } setts. Paine apparently could not take the case because he had to attend the General Court which sat at Boston from 4 to 15 December.44 Luckily, however, Adams reached Braintree on 27 November and some time thereafter was engaged by Doane.45 Paine seems to have been kept on retainer, for he was supplied with full notes of the trial, made by Whipple (Document III), and he argued the case on appeal to the New Hampshire Superior Court in March and September 1778.46 John Lowell, another Massachusetts lawyer, who had lived in Newburyport until some time in 1777, was also engaged by Bourne and Doane.

Lowell filed three claims in the Portsmouth court on 1 December 1777. The first, on behalf of Elisha Doane, was for the Lusanna herself, her appurtenances and stores, and that portion of the cargo that had been consigned to Bourne by Lane, Son & Fraser. A second claim, in behalf of James Shepherd, was made for the goods which the unfortunate captain had shipped. The third claim was in the name of Isaiah Doane, the Colonel's son and trading partner, and was for the provisions and liquors which Bourne had shipped to himself, as well as for a few other items, apparently also Bourne's.47 Bourne had conveyed this property to Isaiah Doane on 24 November 1777 in an admitted effort to divest himself of all interest in the outcome, so that under strict 18th-century rules of evidence he could qualify as a witness.48 The rest of the cargo was unclaimed.

Originally set for 8 December, the trial was postponed until the 16th.49 Bourne had urged Adams to arrive in Portsmouth on Saturday night the 13th to allow ample time for consultation and preparation beforehand (Document I). Adams endeavored to comply, but on the 13th, his second { 364 } day of travel, “a horrid cold Rain” that wet him through caused him to halt at Newburyport, while “Coll. Doane who was in a stage Coach and his son who was in a close sulky proceeded on.”50 Adams finally caught up with his seemingly inconsiderate clients at Portsmouth the next evening. After spending a night at “the Tavern, Tiltons,” headquarters of Doane's party, he moved to the house of General William Whipple, his friend and colleague in Congress, where his conversation seems to have made more of an impression upon the Reverend Ezra Stiles than his arguments later did upon the jury.51

On the eve of the trial Adams wrote most prophetically to Abigail: “The Cause comes on Tomorrow, before my old Friend Dr. Joshua Brackett, as Judge of Admiralty. How it will go I know not. The Captors are a numerous Company, and are said to be very tenacious, and have many Connections; so that We have Prejudice, and Influence to fear: Justice, Policy and Law, are, I am very sure, on our Side.”52 Adams was certainly not the first lawyer to discover that the latter three elements, however valuable, are not enough to outweigh a judge, who, despite old acquaintance, rules the “wrong” way on points of law, and a jury, whether prejudiced or stubborn, which refuses to accept a subtle interpretation of an ambiguous factual situation.

The evidence at the trial consisted primarily of papers found aboard the Lusanna, or submitted by Doane from his records, and the depositions of absent witnesses.53 Probably prior to trial, counsel for Doane had offered a set of interrogatories raising questions as to Bourne's role and the ownership of vessel and cargo, which were to be administered to Bourne, Matthew { 365 } Wood, and “other witnesses.” On the libelants' motion Bourne and Wood were rejected by the court as interested in the outcome, thus defeating Bourne's stratagem of conveying away his interest.54 No other witnesses were called by the claimants to testify to the issues which the interrogatories covered, although many of the same questions were asked of the libelants' witnesses on cross-examination during the taking of depositions.

As Adams' minutes (Document II) and those of Whipple (Document III) show, the libelants asserted two principal grounds of condemnation, based on Resolves of Congress and New Hampshire statutes: (1) That the vessel and goods were forfeited as being the property of inhabitants or subjects of Great Britain. (2) That vessel and goods were forfeited because the Lusanna was carrying supplies to the “Fleet or Army” of the enemy.55 To the first point counsel for the captors argued that the evidence of the register and invoices, as well as several depositions, showed that the property in both vessel and goods was Bourne's, not Doane's, and that Bourne by his statements and actions, including insuring the vessel against loss to American privateers, had revealed himself as a loyal subject of the Crown. They also apparently argued that since English insurers would actually bear the loss, the goods were in effect British property. On the second point the libelants urged both the voyage of the Lusanna to Gibraltar in 1776 and her clearance with cargo for Halifax on her last voyage. Adams and Lowell sought to have evidence of the Gibraltar trip rejected as being outside the allegations of the libel, but the court once more ruled against the claimants. As to the Halifax point, the libelants could not offer direct evidence that the cargo was being shipped to the British forces, but pointed again to their evidence of Bourne's loyalist sympathies.

Adams and Lowell argued in opposition that on the facts the property was still Doane's, since Bourne had no authority as his agent to effect a conveyance; in any event, all of Bourne's representations of ownership were a “cover” designed to avert British suspicions. As to Bourne's alleged loyalty to George III, it was part of the “cover,” but even if it had been fact, it could not be imputed to Doane. In his argument as reported by Whipple (Document III), Adams contended that the insurance against privateers was also part of the “cover,” and that merely because it threw the loss on British insurers, it could not be deemed to pass the property to inhabitants of Great Britain. Having previously lost the argument on the relevance of the Gibraltar voyage, Adams and Lowell were forced to take the position that royal forces there were not “the enemy” within the meaning of the applicable statutes, and that the evidence was inadequate { 366 } to show that supplies had actually been transported to the fleet or army. As for Halifax, they argued that the necessities of the situation, rather than loyalist sympathies, explained Bourne's clearing for that port, and that the evidence was to the effect that none of the cargo had been intended for the fleet and army.

Despite these arguments the jury brought in a general verdict for the libelants, and the court decreed the Lusanna and her cargo forfeit.56 The basis of the verdict of course cannot be known, but it can be justified on the facts. The first ground of condemnation urged in the libel, that vessel and cargo were the property of British subjects, should not properly have been the basis of forfeiture. The general situation and the letters and other papers of Bourne and Doane, which the libelants did not impeach, suggest most strongly that the property remained in Doane throughout, and that all actions and representations on Bourne's part tending to the contrary were only a ruse intended to prevent seizure by the British. The libelants offered no evidence that Bourne had used his own funds for goods or credit. Since the vessel and goods belonged to Doane, and his loyalty was unchallenged, the property could not be that of an inhabitant or subject of Great Britain; further, even if Bourne were a loyalist, to the extent that he acted as a British subject or inhabitant, he would seem to have acted outside the scope of the very broad authority given him by Doane, so that the latter could not be charged with such conduct.

The libelants were on stronger ground with the contention that the Lusanna had been carrying supplies to the enemy. The court's decision that evidence of the Gibraltar run was within the libel seems strained, because the analogy to a continuing trespass apparently relied on is dubious. Here two distinct events are in question; moreover, 18th-century practice generally favored an identity of pleading and proof.57 Once admitted, however, the evidence, if believed, provided an arguable basis for forfeiture. Adams urged that the applicable statutes covered only enemy forces actually arrayed against the colonies (Document III), a reasonable construction of the Resolve of Congress. The New Hampshire statute also relied upon by the libelants could be read to include activities in other parts of the world, however.58 If Adams argued that the latter statute did not apply in the face of resolves of Congress which occupied the field, Whipple did not record the fact.

As to the Halifax voyage, once again the New Hampshire act was broad enough to include carrying supplies to the inhabitants of enemy territory, as well as to enemy forces. Even if such a construction were not adopted, the evidence of Bourne's loyalist position, which was damning if the explanation of it was not believed, gave rise to an inference that he was dealing with consignees who would sell to the armed forces, thus indirectly supplying the enemy even in the narrower sense. No troublesome ques• { 367 } tions of Doane's liability for these acts of his agent had to be met, because, under the New Hampshire act at least, condemnation turned on the employment of the vessel, rather than on its ownership.59

In fairness to Bourne it should be noted that he had to go to Halifax; he could not leave Britain without clearing for a loyal port, and he could not draw the bulk of Doane's funds except through bills negotiated there, unless he wanted to carry them in specie, subject to both the natural perils of the sea and the danger of British or American naval action. In fairness to the jury, Bourne was in fact headed for Halifax with a history of loyalist sympathy and a cargo consigned there; whatever his intentions, he was still in a position at Halifax to trade with the enemy; and at the trial it was explanations by his counsel rather than hard evidence of his character or motives which were balanced against his prior conduct. Bourne in all probability intended to make for Cape Cod with whatever assets he could salvage as soon as he safely could, but he had sufficiently compromised himself through the exigencies of his situation that he had to bear the risk of being misunderstood. The Portsmouth jury was not only of local origin, but may well have been subject to influence by the McClary owners.60 On the evidence before it, however, the verdict of condemnation was not clearly the result of prejudice and bias.

After the decree the claimants sought an appeal to Congress. This the court denied, on the ground that the applicable New Hampshire statutes provided an appeal only to the state Superior Court.61 Here was the issue which was to keep the case in the courts until 1795—the question of federal against state power. Adams did not participate in the later phases of the litigation, but his argument at Portsmouth reveals that the problems of overlapping jurisdiction were present even on the lower level. He seemed to assume that the resolves of Congress would control, since, as has been noted, he apparently did not argue the point. Thus, not only did he base his argument entirely on those resolves, ignoring the conflicting language of the New Hampshire act, but he, and Lowell also, cited prior decisions from their experience with the Congressional Commissioners of Appeals as precedents for the construction of the resolves.62 In addition, Adams supplied a kind of “horse's mouth” legislative history, both of these statutes and of other Congressional measures, such as the Continental Association { 368 } and Declaration of Independence.63 The jury seems to have ignored these authorities, as well as the implication that they alone were decisive of the case.

The trial of the Lusanna marked the end of Adams' active legal career in a very definite way. According to his Autobiography, it was while he was actually attending in court that “Mr. Langdon came in from Phyladelphia and leaning over the Bar whispered to me, that Mr. Deane was recalled, and I was appointed to go to France.”64 The date of this dramatic episode cannot be determined exactly, since the duration of the trial is not known, but it must have been between 16 December and the 20th, when Ezra Stiles reported in his diary that the news was known in Portsmouth.65 It was almost certainly on the latter date that Adams left for Boston, because he arrived at Braintree on 22 December. On the following day he accepted appointment as a Joint Commissioner to France in a letter to Henry Laurens, President of Congress. He can have had little time or inclination for further involvement in practice during the few short weeks of preparation before his departure from Braintree on 13 February 1778 aboard the Continental frigate Boston.66

The subsequent history of the Lusanna is of great complexity, and can be only sketched here. In March 1778 the case was entered at the Superior Court with Paine now joining Lowell as counsel for the claimants. There the jury disagreed and was discharged. At the September 1778 term of the court at Exeter, the case came on again for a lengthy trial.67 At least 38 new depositions were produced, nearly all of them for the claimants. The areas in which they sought to bolster their case are an interesting reflection of the weaknesses which appeared at the trial in the Maritime Court. Bourne was again rejected as an interested witness,68 but Matthew Wood's testimony as to the voyage out and Shepherd's predicament was { 369 } this time accepted.69 Other witnesses testified to the extent of Doane's credits in the hands of Lane, Son & Fraser; to Bourne's character as a patriot and his occupation as a lawyer with no trading interests, who went to London merely as Doane's agent; to Doane's ownership of a share of the Industry's cargo; to the common practice among American captains of taking out false registers and clearances in British ports to avoid seizure;70 and to Bourne's plans in February 1777 to clear out with false papers and make for home.71

The chief source of contention seemed to be the status of Halifax, a matter which both sides had left to assumption in the earlier trial. The claimants produced at least twelve depositions to the effect that the British garrison there was small and unwarlike, that the inhabitants were friendly toward America, and that the consignees of the Lusanna's cargo were not army or navy supply contractors.72 Here the libelants interposed the only new evidence which they offered, two depositions stating that there was a sizable garrison at Halifax with a real military role, and that a substantial number of naval vessels berthed there.73 Finally, several depositions were offered in behalf of James Shepherd, testifying to his patriotism and to his ownership of the goods which he claimed.74 Despite this mass of evidence, the jury found for the libelants once more. The claimants' appeal to Congress was again refused,75 and on 18 September the Lusanna and her cargo were sold at auction under the court's decree. After court costs of £59 15s. and costs of sale were deducted, the “neat proceeds,” amounting to £3 3,957 10s. 3 1/2d., lawful money, were divided equally between the owners' representatives, Penhallow and Treadwell, and Wentworth, agent for the crew.76

Undismayed by the denial of his appeal, Doane proceeded at once to petition Congress for review, asserting as major defects in the New Hampshire proceedings the prejudice of the local jury in favor of the local owners, and the rejection of Bourne's testimony, which he claimed was vital to his case. On 9 October 1778, his petition was read in Congress and referred to the Commissioners of Appeal.77 In the meantime Congress was occupied { 370 } with the momentous case of the sloop Active, an appeal from the Pennsylvania Admiralty Court, in which the Commissioners had reversed a decree based on a jury verdict in matters of fact. When the Judge and Marshal of the Philadelphia court refused to obey the Commissioners' decree, they suspended activities, and the matter was turned over to a special committee of Congress for study. On 6 March 1779, with the delegates of New Hampshire voting Aye, Congress adopted the committee's findings that Congress by virtue of the war power could try questions of law as well as fact in prize appeals; that no state law could interfere with the right to appeal to Congress in such cases; and that the Commissioners were competent to make a final decree in the case. Although the case of the Active remained unresolved for another thirty years, the Commissioners went back to work.78

The Lusanna was set for trial on 21 June 1779. The McClary party appeared, attacking the jurisdiction of the Commissioners on the basis of the New Hampshire statutes, as well as on procedural grounds, and perhaps also suggesting that the case was moot, the insurance having been paid to the claimants.79 The Commissioners held on 26 June that they had jurisdiction of the case, both by virtue of the original resolves of 1775 and under the resolution adopted in The Active. They declined to proceed, however, until New Hampshire should have time to react to the latter, which had been transmitted to the state legislature.80 Before the Commis• { 371 } sioners could take further action, Congress on 15 January 1780 established the Court of Appeals in Cases of Capture, to try all prize appeals from the state courts “according to the usage of nations, and not by jury.”81 The roster of three judges was completed on 4 May, and on the 24th of that month Congress ordered all appeals now pending before it or the Commissioners to be referred to the new court.82

On 1 March 1781, the Articles of Confederation became effective when they were ratified by Maryland, the last state to do so. Although the Articles contained a grant of exclusive federal jurisdiction in prize appeals, which served to confirm the establishment of the Court of Appeal,83 it was not until September 1783 that the Court called the case of the Lusanna for trial. The owners later complained that they had had no time to prepare, but at the argument held at Philadelphia on 11–13 September, both parties were represented by an array of distinguished counsel. After the jurisdictional objection was once more overruled, the case was reargued on the merits, apparently solely on the record and files of the New Hampshire proceedings. Minutes of the hearing preserved in the files of the Court of Appeals indicate that it was in the form of an appellate argument familiar to lawyers today, with considerably more emphasis on legal questions and authority than had been the case at Portsmouth in 177784 The arguments { 372 } presented for the Lusanna prevailed, and on 17 September, the court gave its decree, reversing the sentence of the New Hampshire court and ordering the restoration of their property to the claimants. John Lowell, Adams' assistant at Portsmouth and now a judge of the Court of Appeals, did not take part in the hearing or decision.85

The McClary party now turned to legislative channels for redress. With the support of the New Hampshire legislature and General John Sullivan, who acted as their agent, they sought relief in Congress, complaining of the decision in “a cause so essentially affecting the Sovereignty and Independence of this State, as well as the rights and property of your memorialists,” by an authority “assumed and arbitrary to an extreme, by no means justified by the confederation, even if that had been completed at the time of the trials in this State, infinitely less so, as it was not until long after the sentence of our Supreme judicial Court within the State.” The question was referred to a committee which submitted a report, in Thomas Jefferson's hand, holding that, since the case had arisen and been submitted to the jurisdiction before the ratification of the Articles of Confederation, Congress was ousted of appellate jurisdiction by the New Hampshire statute. In Congress, 30 March 1784, on the question of agreement with the report, the affirmative could not sustain a majority of the states, and the question was lost.86

Confirmed in their victory, the administrators of Elisha Doane (who had died in January 1783)87 and the other claimants set about obtaining satisfaction. Since the Court of Appeals had no power to enforce its own decrees they were forced to turn to the state courts. No record of an attempt to recover in New Hampshire has been found; the steadfast position of { 373 } the state legislature in upholding the earlier decisions of its courts suggests that the effort was not deemed worth making. In June 1784 at the Suffolk County, Massachusetts, Inferior Court, the administrators began an action founded on the Court of Appeals decree. At the February 1786 term, on appeal to the Supreme Judicial Court, the decree was offered in evidence. According to later accounts, it was rejected by Justices William Cushing, Nathaniel Peaslee Sargeant, and David Sewall, on the grounds that the Court of Appeals had lacked jurisdiction and the New Hampshire decree was final. The plaintiffs discontinued their action.88 Again in March 1786 the administrators, as well as Isaiah Doane in his own right and Shepherd, brought suit in the Court of Common Pleas of Philadelphia County, proceeding by way of foreign attachment against a vessel belonging to one of the McClary owners found in Philadelphia. On motion to quash the attachments, the court at the September term, 1787, found it unnecessary to decide the questions of the Court of Appeals' jurisdiction, or whether the discontinuance in Massachusetts was conclusive upon the plaintiffs; it ordered the attachments dissolved, however, holding that a common-law court lacked jurisdiction to enforce the decree of an Admiralty court in a prize case, at least where to do so would raise the question of prize or no prize, which is exclusively of Admiralty jurisdiction.89

The case lay dormant until the new system of federal courts decreed in the Judiciary Act of 1789 was firmly established. Finally in March 1792 the administrators libeled the McClary owners in the United States District Court for the District of New Hampshire, setting forth the decree of the Court of Appeals and asking that it be carried into execution.90 Since John Sullivan, Judge of the District Court, had once acted as counsel for the owners, the action was removed to the Circuit Court for the District of { 374 } New Hampshire under an Act of 1792 providing this procedure for such a situation.91 In October 1793 the case came on for trial in the Circuit Court before Justice John Blair, the only issues being jurisdictional. Blair found for the administrators and directed commissioners to ascertain the damages. A year later, with Justice William Cushing on the bench, the commissioners reported that at the time of the sale under the 1778 decree the Lusanna and her cargo had been worth £5895 145. 10d. Interest from the date of the sale until the date of the report was £5659 175. 4d. On 24 October 1794 Cushing handed down a final decree, awarding the administrators the equivalent sum of $38,518.69, with $154.30 costs, to be recovered in full against any one of the respondents separately.92

The case came up to the Supreme Court on writ of error and was argued and decided at the February term 1795-93 Eight errors were assigned, of which the following were the principal ones: (1) That the decree was void because the Court of Appeals lacked jurisdiction; (2) that it was matter of record that Elisha Doane was dead when the decree issued in his name; (3) that the libel sought performance of the Court of Appeals' decree of restitution, rather than damages for nonperformance; (4) that the decree of the Circuit Court held the owners' agents and the captors' agents each in full damages, although the proceeds had originally been divided equally between them; (5) that there was no jurisdiction in Admiralty of the libel filed in the District Court.94

The seriatim opinions of Justices Paterson, Iredell, Blair, and Cushing, which take up forty-one pages in the printed report, were primarily concerned with the jurisdictional issue.95 All four agreed that the Court of { 375 } Appeals, sitting after the ratification of the Articles of Confederation, was validly constituted and had jurisdiction of the subject matter by the authority of that instrument; thus its ruling that it had jurisdiction in the premises (which could not be overturned by collateral attack) also cured any defects arising from the fact that the case had been filed before the ratification of the Articles. Since the jurisdiction was exclusive, it ousted all claims of the states to create courts of last resort. Only Paterson and Blair clearly held that the inherent war power of Congress was sufficient to validate the jurisdiction in the period before the Confederation. It thus cannot be said that there was a decision of the court on this point.96 Doane's death was held not material, primarily because the action had been in rem, but it was agreed that the question was, in any event, foreclosed by the failure to raise it below. The four justices likewise agreed that the failure to pray for damages was cured by the libel's prayer for general relief; and that the District and Circuit courts had had jurisdiction of the matter in Admiralty, as the only courts competent, and by analogy to the jurisdiction to enforce the decrees of foreign Admiralty courts.

The only disagreement affecting the outcome was in the matter of damages. All concurred that interest should be allowed only from September 1783, the date of the Court of Appeals decree, and that the damages should have been levied severally in proportion to the original award in favor of the McClary. Iredell and Blair held that George Wentworth, the agent for the crew, should not be liable, since he had in good faith paid over the entire sum awarded under a decree binding under state law, without actual notice that the appeal was going forward. Since the court was evenly divided on this point, the prior judgment that Wentworth was liable stood, but the Circuit Court decree was modified so that the smaller interest figure was reflected. The total award was divided into two halves of $16,360.68, one half to be recovered against the agents of the owners, and the other against Wentworth.97

So eighteen years after Adams had argued their case in Portsmouth, the persevering Doanes prevailed. The decision brought a flurry of news• { 376 } paper and pamphlet criticism of the court for this blow to the sovereignty of the states, but the court withstood the attack as it has in similar circumstances since.98 Despite the intensity of the appellees' resistance, the Doanes were apparently able to recover about 80 percent of the sum awarded against Penhallow and Treadwell; Wentworth's liability was discharged on his submission of 10,000 acres of land valued at about $3300.99 The Doanes' troubles were not yet over, however. The English insurers of the Lusanna and her cargo, as patient as their erstwhile clients, now proceeded to sue the administrators in the Federal Circuit Court for Massachusetts to recover the sums paid out under the policy. From the beginning the McClary party had pointed to the insurance as defeating Doane, first as a transfer of property, then by making his claim moot through payment. These attacks had been resisted successfully, but now the reckoning must be paid.

Three actions were brought—one against Bourne, one against David S. Greenough (who had married Elisha Doane's widow) “et al.,” and one against Greenough's executors. The last-named suit was dropped in October 1801 as a “misentry.” In April 1802 a jury found a verdict for Bourne, and the suit against Greenough et al. was continued. At the October term 1802 in the latter action it was “suggested that the Plaintiff is dead,” and the case further continued. Finally, in June 1803 neither party appeared. Greenough and Doane now attempted to negotiate a settlement with the insurers. In February 1804 John Lane reported that at least some of the underwriters were ready to settle for their costs, and, in a reply dated 18 May, Greenough and Doane agreed to these terms, “upon condition, that we be secured from any farther suits, &c.” In July, however, Lane wrote that a settlement was not yet forthcoming due to the expense and difficulty of obtaining the consent of the individual underwriters involved. Since no further correspondence has been found, the conclusion of the Lusanna's voyage remains unknown.100

Coll. Doane informs me, that he hath engaged you, in the Cause of { 377 } his Brig[antin]e, and his property found in her, at the time of her Capture;

And as Mr. Paine was not fully engaged at the time you was, he does not attend the Tryal (which is to be on the 16th. of this Month at Portsmouth). I herewith Inclose you a Brief of facts (without many perticular circumstances) which may give you a General Idea of the Question, Wishing it may suffice untill your arrival at Portsmouth; to which place I shall proceed on Tuesday next, not doubting of Seeing you there, the next Saturday night, which (if so) will give me an opportunity of instructing you in every perticular circumstance.

Mr. John Lowell is your assistant. There are three Claims, one in behalf of Coll. Doane for the Brig[antin]e and goods, one other in the Name of Mr. Isaiah Doane, and the third in the Name of Wm. Shepherd.2 The goods Claimed by Isaiah Doane were sold him by me, for which I have given him a Release, (the Sale is Bona fide) to inable me to be a Witness for Coll. Doane.3

Coll. Doane is taking Depositions to his Character as well as Isaiah Doane.4 Mr. Lowell directs us how to proceed, and if any perticular plan be thot of by you, please to write me by the Bearer (Capt. Avory) who will wait your pleasure. By the time you Reach Portsmouth, hope to have it in my power to acquaint you with Every paper filed against us. I think Sir there is an absolute necessity of your beeing at Portsmo. next Saturday night, and wou'd Recommend Mrs. Tiltons House to you, to Lodge at, as I shall provide for the Company there.5 I am with due Respect Sir Your Most Obedt. Hmble Sevt,

Mr. Sewall. 3 Causes sett forth.2 Resolve of Congress, 25 Novr. 1775. March 23d. 1776.3

Law of N. Hampshire, principally relyd on. In June 1776. <1777 April 19.> Septr. 5, 1776.4

Vessell and Cargo the Property of Sherja. Bourne, who thought it safest to go to E[ngland] and take shelter under the Wing of his Majesty K. George.

Register, in the Name of S. Bourne, 3 Aug. 1776.5

Invoices from Lane Son & Frasier, consignd to S.B.6

Provisions consignd to Cockran in the Absence of Doane.7

Deposition of Thos. Casey, a Passenger, with his Wife. Understood from Bourne that the Brig, was made over to Bourne. Understood B. was in Conjunction with his Father and Brother Doane. Knows the sewing silk was Shepards. He would store the Goods 3 Year if he could not get a good Price.8

Letter from Lane Son & Frasier. Gibraltar.

Employd in carrying Ordnance stores to Gibralter.

Letter speaks of the Brig, as Bournes Property.9

Deposition of Mary Casey.10

Mr. Lewis.

Letter Bourne to Cockran, Wait orders from Me, L. Son and Fr., E. or Is. Doane.11

Lot Lewis. Deposition. Went in her to Gibralter. Saild 1. Octr. 1776. Timber and Bricks the Cargo.

Ordnance Colours. Understood, the Property was C[olonel] Doanes. Carryd Pitch, Tar, Timber and Bricks to Gibralter. Understood they { 382 } were Ordnance Stores because they wore Ordnance Colours, received of a Government Contractor as I took the Gentleman to be.12

Sewall. Swearing is a serious Matter. An honest Man must pause. Oath to the Register.

Invoices and Bills of Lading. Marked S.B.

Letter. E. Crosby, to Captn. W. Spry, Engineer at Hallifax. He will have a Vessell or two which he would be glad to get into Governments service.13 This to shew that Bourne was an Enemy to these States.

Bournes Memorial to the Lords of Trade &c. Always a loial subject.14 Where Conduct is uniform, I dont blame.

If the Goods are Doanes, all Bournes Acts as his Agent are his Acts. Bournes sending the Brig to Gibr[alta]r was Ds. Act.

Goods all insured in London. Why should he guard vs. Privateers. He would wish to be taken. Premium 10. Guins. Pr. Ct. 4 to be returnd.15

Continental Association: We will not import.16 Breach of this, Proof of Disaffection to our Cause.

Indictment for running a Man thro with a sword. Evidence may be given that he cut off his Head with an Ax,—not that he poisoned him.17

Mr. McKay. Bourne said, if I loose her she is well insurd in London.

Mr. Baker. I dont want it insurd again for she is once insurd in England.18

C[olonel] Doane wont loose it, nor Mr. Bourne, but the Insurers.

Mr. Doanes Letter, respecting Sheppards Goods.19

Mr. Lowell.<. . . Copy of>

3 Nov. 1775. Letter to Lane Son and Frasier, from Bourne at Hallifax seized. Inferring that Lusanna belonging to Doane was seized.20

Ditto. 3d. Decr. 1775.21 1. Oct. 1776. Letter from L.S. & Fraser, write to Bourne about his Brigantine and his Int[erest].22

12. Octr. 76. Letter from Bourne to Doane. His situation very unhappy seperated from Family and Friends. Impossible to alter it, without exposing my Person and your Property. Am determind to make an Effort to see you and all Friends.23

Letter from B. to his Wife. Expectation of speedily returning.24

Libell vs. Brig. Industry at Boston 18 Sep. 1775. Condemnd. Bromfield claimd an Appeal to England. The Oil was consigned to Mr. Bourne, in London for Sale. Bourne applies to Smith Council who drew the Memorial for him to the Lords of Trade.25

Depositions of Mr. Hancock. Jno. Bradford, Jno. Emmery. Chas. Miller. Laz. Goodwin. Saml. Emmery.26

Bills of Lading of two Trunks and 29 Ib. silks of Shepards.27

Capt. Woods hand Writing to the sailing orders.28 In the Book. On the Risque of Elisha Doane.29

Agreed between Elisha Doane and Mathew Wood.30

Letter to Lane Son & Fraser, from C[olonel] Doane.31

Letter to Bourne from Doane, consigning Oil &c. by the Industry.32

July 17. 1777. Letter, from D. to Bourne.33

Bills of Lading S.B. Invoice from Edenson & Co. Invoice of <. . .>.34

Shepards Property admitted.

Isaiah Doanes, purchased of Mr. Bourne.35

Laws of the State of N.H.36 Resolve of Congress 25 Nov. 75. 23. March. 76. 24. July 76. extended to all the subjects of G.B.37

Association.38

The Voyage to Gibralter. French, Spaniards, Portuguese, Sweeds &c.39

Onus Probandi on the Libellant.

Deposition of T. Casey and Wife.40

Maccays Case.41 Mrs. Alsops Case.42

Bill Jacksons Case.43 Butlers Letter.44

Insured.

1. Q. Is the Property Doanes? Yes.45

2d. Does the Voyage to Gibralter, forfeit the Property?

3. Does the Voyage to Hallifax forfeit.

4. Does the Goods being British Manufactures forfeit em and Brig.

5. Does the Insurance forfeit the Goods?

The Libel sets forth three Facts as Causes of Condemnation viz.

1st. That the Property of Brig and Cargo belonged to some Inhabitant or Inhabitants of great Britain.

2d. That at the Time of the Capture She was Carrying Supplies to the Enemy.

3d. That the Property on Board was British Manufacture.2

NB They then indeavour to introduce a fourth Cause of Condemnation viz. that the Brig made a Voyage to Gibralter with King's Stores in the Year 1776, tho' this Cause is not set forth in the Libel.3

There are two Resolves of Congress principally insisted on viz. the one that makes british property confiscate, the other, that makes all Vessels, their Cargoes &c. forfeited carrying Supplies to the Fleets and Armies acting against America, which said Resolves are adopted in our maritime Law.4

The Agents Council open the Cause in such manner, as to make Mr. Bourne the ostensible Owner of the Brig and Cargo, and as he has not Claimed the Property, They draw a false Consequence, that Coll. Doane has no foundation or Right of Claim to the Property.

The Council for the Agents first proceed to prove the Property in Mr. Bourne, and that he is an Inhabitant of Great Britain. To this end they Produce the Register in his Name.5 The Goods being marked in his Name.6 His Departure from the Country at the Commencement of the Despute.

His Memorial to the Lord[s] of the Admiralty7 to recover Part of the Cargo of the Brig Industry. His Journal to show him an Enemy to the Country.8

Mr. Crosby's Letter of Recommendation to the Commanding Ingineer at Hallif ax.9 Two Letters of Credit from Mr. Lane, and Watson and Company to Mr. Butler at Hallifax in Favour of Mr. Bourne for about 7000.10

Also the Deposition of one Casey.11

The Deposition of Mrs. Casey.12

The Deposition of Mr. Lewis the Mate.13

And also produce a Letter from Mr. Bourne to Mr. Cockran at Hallifax.14

Answered by Mr. J. Lowell.15

By giving a general History of the Voyage and the whole transaction thereof, and showing the Property of the Brig and Cargo to be in Coll. Doane and that the altering the Register was to cover the Property from Seizure.

The marking the Goods SB was for the same Purpose.

His Departure from the Country was not criminal at that Time, as he went for the Purposes of Business for his Father as agent and with Intent to git his property out of England. That the Memorial ought not to be considered as Mr. Bourne's Sentiments, but as his Council's who framed it, to answer the Purpose. That there is nothing in the Journal (saving the Memorial) that looks unfriendly, but it shewes his Intentions were to return to his Family and Friends again.

That Crosby's Letter (whatever were Mr. Bourne's Intentions) cou'd not opperate to defeat Coll. Doane of his Property, nor cou'd { 391 } any Acts of Mr. Bourne as a Factor, defeat him of his Property. That Mr. Lane's and Watson's Letters were disigned that Mr. Bourne should draw the Money at Hallifax, as an equivalent for Coll. Doane's Property in England in their hands, which Mr. Bourne did not think proper to risque in Specie or Goods across the Water, and disigned to have sent the Money, when received in some secret Way to Coll. Doane.

The Depositions were mostly favourable to the Defense of the Claimants, and were well observed on.

NB Mr. Adams, after recapitulating the main Points of the Evidence, as stated by Mr. Lowell, divided the Cause into the following Heads viz.16

1st. Whether it was not legal for any man to git his Property from an Enemy's Country?

2d. Whether taking the Register at Hallifax and another in London, in Mr. Bourne's Name to secure and cover the Property from Seizure, alterd the Property, and made it liable to Forfeiture?

Answer'd by Mr. Adams.

1st. That a man having property in an Enemy's Country, had an undoubted Right to transport that Property to any Place, where there was an appearant Probability, of geting it, or the Proceeds thereof to his Home, that he had a Right to chuse the Mode or Manner of securing his Property and transporting it Home, unless the States had by Law pointed out the Channel in which it was to be done (which is not the Case) and relyed much on the Justice and Equity of permitting it to be done, and concluded that it was the general Sentiment of the Congress to favour the Design.

2d. He observed, that Registers do not always identify the Property, and that taking out a Register and swearing to it was no Method known in Law to convey Property, if it was, it wou'd be in the Power of every man who had the Care of a Vessel, to deprive the rightful Owner of her by taking out a Register; he relyed on the Necessity of altering apparently the Property of a Vessel &c., where liable to be seized, that it was Justifiable upon the Principles of Commerce, and sanctified by almost universal Custom of Persons intrusted with Property abroad.17

3d. Whether the Voyage She made from London to Gibralter freighting Kings Stores, in the Year 1776, was a Cause of Forfeiture?

NB The Council for the Agents indeavoured to introduce the Evidence of the Brig's haveing made a Voyage to Gibralter with King's Stores tho' not set forth in the Libel as a Cause of Condemnation;18 This was objected to by the Councel for the Claimants; That no Evidence cou'd be given of any Matter that was Cause of Condemnation unless set forth in the Libel, that every Cause of Condemnation in the Law, ou[gh]t to be shown to the Court, before Evidence given, and that if they might be allowed to give Evidence of Facts that did not appear in the Libel, it wou'd be unne[ce]ssary to have any Libel at all, and that they cou'd not go out of the Libel for Matter of Condemnation, but must abide by their Allegations.19 The Councel for the Agents likened it, to an Action of Trespass, where if the Evidence of the Fact was before the Time laid in the Declaration, it was good, if the Evidence related to any Part of the Trespass.

NB This is by no Means a similar Case, for Evidence never was given of any Trespass unless specially set forth in the Declaration, but the Judges gave it in their Favour, but wrong.

He [Adams] observed that from the ninteenth of April 1775 none but general Gage and the Troops under his Command, in Conjunction with the Fleet, were looked on as Enemies, nor did the Congress till some Time in the Year 1776 even look on great Britain, or Ireland or any foreign Garrison as their Enemies in a General Sense,20 and insisted there was no Law or Resolution of Congress that prohibited a Voyage to Gibralter, the Troops and Fleet not coming within the Meaning of the Law ie, Enemies acting against the united States of America. That the Sense of the Law and the Word Enemy was wholly limitted to the Fleets and Armies at that Time here, and on the Coast of America and that there is Yet no Law forbiding the Supplying a foreign Garrison of the King of Great Britain;21 for if the word Enemy was to be construed in a general Sense to all the Dominions of the King of great Britain, it wou'd be absurd to say, That this Vessel, or any other, That was transporting Goods, or Provisions from one { 393 } Place to another within those Dominions, was carrying Supplies to the Enemy; because the Enemy were supplied with the Goods &c. previous to their Imbarkation; That the Superiour Court of the Massachusetts Bay and all other Courts, which had decided on the Question were of a Similar sentiment.22

4th. Whether the Brig being bound from London to Hallifax was a Cause of Forfeiture?

That all Vessels in London must be cleared out for some British Ports,23 that Hallifax was the nighest Port to these States, that is open, except Garrison'd Towns, that there was every Probability if he got his Goods and Property at Hallifax, he might git them for the Doanes from thence in some secret Way, that there was no Law or Resolve, prohibiting the bringing home british Property, or directing the Mode, (as observed before) it is therefore left to the Choice of the Party; nor is there any Law that makes a Vessel forfeited for carrying Freight or anything else to Hallifax, provided it be for the Inhabitants, and not for the express Use of the Fleet and army; That not a single Article of the Cargo was for the Fleet and army, is express in the Depositions of Casey, Wife and Lewis,24 and that there was no apparent Intention, Design or Mark of supplying the Fleet or Army, unless the Captors cou'd search out the Hart of Col. Doane and Mr. Bourne; and added that all Vessels or Transports bringing supplies or Stores to the Fleet and Army, did not clear out at the Custom House at London or elsewhere, but only had orders and a Certificate to deliver their Stores to the King's Commissary at the Place of Destination.25

5th. Whether the Property Claimed, and consisting of English Goods, and insured was a Cause of forfeiture?

He observ'd that there is no Law now in being against bringing Home british Manufactures, and that the Goods being made in England was no Cause of Forfeiture. The Act of Association, went no further than to forbid Importation of british Goods, but did not declare them forfeited, but were only to be Stored or reshipped as the Importer chose, and all the Penalty was to stigmatize the Importer, “as an Enemy to Liberty.”26

That the Declaration of Independancy, repeated all former Resolves of the Association;27 that Independancy, or the Declaration thereof, did not respect british Manufactures, and there is no Expression therein, that prohibits the Importing british Goods, or that makes them liable to Forfeiture as Such; That it was the general Sentiment of the Congress that <Property> Goods in England, tho' british, belonging to Americans, might be brought here without a Liability of Forfeiture, and that it was for the general good of the Country.28 Mr. Adams then Instanced a Case at Carolina, where Goods were condemned at a maritime Court, because brought from Statia, and were british Manufactury, but on appeal to Congress, the Decree was reversed, it being no Cause of Forfeiture.29

Mr. Adams observed that the Court of the Massachusetts, agreed in Sentiment with the Congress on that head; for they had given in many Instances, Licenses to People to go to Hallifax, and to others that were there who were desirous to come into these States, to bring their Property consisting of British Manufactures, into these States, without the least Idea of Forfeiture,30 which if it was not permitted, wou'd opperate as an inconceivable Injury to many Good Subjects of these States.

He observed,31 That Insurance was only a Wager, that it did by no Means pass the Property, and that every one wou'd act imprudently who did not insure his Property even against Common Accidints; that this was never known to be a Cause of Forfeiture of a Friends Goods, because insured by an Enemy, perhaps they were not insured to half the Value, and then the assured must loose the Remainder. That this Insurance was made for a Cover, that they might not suspect any ill Designs; had it not been done, they on the other Side the Water, wou'd have suspected a Design that the Brig was destined to some Port in America, and he added that if the rankest Tory existing was bringing his Goods to America with a View to settle here, the same wou'd not be subject to Forfeiture.32

Mr. Adams spoke largely to each of the foregoing Questions, added many incidental Observations, and concluded, if the Property in Despute had belonged to a Southern State Instead of the Massachusetts, the Owners wou'd Send forth armed Ships to make Reprisals.

On 22 February 1770, a man named Ebenezer Richardson fatally shot an eleven-year-old German boy. The circumstances of the shooting and the conditions of Richardson's subsequent trial for murder so emphasize the peculiarly disturbed status of the law in Boston at the time that documents pertaining to the case are included in this collection, even though Adams does not appear to have been actively engaged in the matter. The fact is that defense counsel's notes (Document I) remain among the Adams Papers and were docketed “Rex v. Richardson” in Adams' hand; moreover, the legal points raised in Richardson's trial and its aftermath bore particular relevance at the Massacre trials in 1770 (Nos. 63, 64).

Ebenezer Richardson was born in Woburn in 1718, married a Woburn woman, and some time thereafter came to Boston.1 There he was at least a reputed member of the customs establishment and commensurately disliked. Although the Customs Commissioners were later to deny that he had ever been a customs officer,2 Richardson had for “many years” before 1770 “been known by the name of The Informer,” according to the Boston Gazette.3 Even John Adams was in later times to fulminate against { 397 } him: “If there was even a color of justice in the public opinion, he was the most abandoned wretch in America. Adultery, incest, perjury were reputed to be his ordinary crimes. His life would exhibit an atrocious volume.”4 Whatever Richardson's other faults may or may not have been, later events demonstrated indubitably that he had a short temper.

All this, added to the rough-and-tumble of the fall and winter of 1769–1770 in Boston,5 almost insured that Richardson would soon collide with the patriots. The occasion arrived on 22 February 1770, a Thursday, which, like all Thursdays, was by Boston custom a market day and a school holiday;6 plenty of idle schoolboys as well as numerous up-country farmers stood available to bolster the already powerful Boston mob.

The latter's principal object for some time had been the enforcement of the nonimportation agreement. Temporarily checked by the resourceful stubbornness of John Mein,7 the “well-disposed” were beginning to move against the few holdouts. One of these, Theophilus Lillie, a near-neighbor of Richardson's and “a very inoffensive man, except in the offense of importation”8 resisted with language which, for sarcasm, at least, rivaled even Mein's: “I cannot help saying,” Lillie had written in January 1770, “although I never entered far into the mysteries of government, having applied myself to my shop and my business, that it always seemed strange to me that People who contend so much for civil and religious Liberty should be so ready to deprive others of their natural liberty—that Men who are guarding against being subject to Laws [to] which they never gave their consent in person or by their representative, should at the same time make Laws, and in the most effectual manner execute them upon me and others, to which Laws I am sure I never gave my consent either in person or by my representative. . . . I own I had rather be a slave under one Master; for if I know who he is, I may, perhaps, be able to please him, than a slave to an hundred or more, who I don't know where to find, nor what they will expect from me.”9

For some time, the technique used against men like Lillie had been the { 398 } “exhibition,” a sign or placard planted before the offending shop, carrying language whose general import was “Don't Buy from the Traitor.” This was usually coupled with the 18th-century equivalent of a picket line, a crowd of schoolboys.10 As Gordon was to write a few years later, “Boys, small and great, and undoubtedly men, had been and were encouraged, and well paid by certain leaders . . . and still persevered.”11 But, though boys were the actors, Thomas Hutchinson, at least, did not doubt that they were being “set on by Men.”12

On the day in question, a gang of boys (the witnesses at the trial varied in their estimates: one said as few as sixty, another said as many as three hundred) paraded to Lillie's and placed before his door a large wooden head bearing caricatures of the four leading importers and a hand pointed toward the house.13 Richardson, seeing the “hundreds” of boys gathered at Lillie's, tried to persuade first “a countryman,” then a charcoal vendor, to run their respective wagons against the sign. In desperation, he even took a cart and horse standing in the street and tried to do the job himself. At this, the crowd began to add more solid missiles to the epithets it was already hurling. As Richardson retreated to his house, he passed several of the patriots, including Edward Proctor and Thomas Knox. Crying “Perjury! Perjury!” in apparent reference to what Richardson considered the false nature of the charges implied by the sign, Richardson paused to exchange insults with these men and two others besides. At the trial, there was testimony that Richardson had sworn to “make it too hot” for Proctor and the others; there was also testimony that they in turn had called him a “damn Son of Bitch” and had threatened to have his heart and liver out.

Lieutenant Governor Hutchinson, meanwhile, hearing of the trouble, “gave express directions to the Sheriff to go and suppress this unlawful assembly before the accident happened, but he did not think it safe to attempt it nor is there a J. of P. in the town who will appear upon such an occasion.”14

With Richardson back in his house, the battle raged on. A witness at the trial was later to testify that stones shattered the windows, carrying away even the lead and frames. George Wilmot, a sailor employed in the { 399 } customs service, was at Richardson's house, the reason for his visit not being clear, although the patriots claimed he had originally been sent to tell Richardson to take down the sign.15 As the violence increased, and the crowd began to push at the doors, Wilmot told Richardson, one of the witnesses later said, “he would stand by him as Long as he had breath.” The pelting continued, and Richardson thrust a gun through a window, “snapping” it at the mob. Finally, he fired a charge of bird shot, eleven of which struck and mortally wounded Christopher Seider (or Snider), some after striking the hand of another boy.

Immediately a bell was set ringing and, according to the Evening-Post account, a crowd surrounded the house front and rear. The mob completed the breaking and entering, subdued Wilmot and Richardson, and hustled them outside. “[T]he first thought was to hang him up at once and a halter was brought and a sign post picked upon, but one who is supposed to have stirred up the tumultuous proceedings took great pains and prevented it.”16

The men were dragged through the town, “cruelly abused by the Mob,”17 and put before Justice of the Peace John Ruddock, who ordered them on to Faneuil Hall, where in the presence of a thousand people, he, along with Justices of the Peace Richard Dana, Samuel Pemberton, and Edmund Quincy, examined them and had them committed to jail.18 “After the Examination, when the Sheriff was carrying them to Gaol, several attempts were made to get a Rope around Richardson's neck.”19 It should be noted that the boy did not die until that evening,20 so that at the time of their commitment and near-lynching, Richardson and Wilmot could not, by any reasoning, be guilty of murder.

Of course the “Sons of Liberty took care to Improve this Affair to the utmost advantage.”21 On 26 February 1770 the Gazette ran an inflammatory report of the “late barbarous Murder” insinuating that the customs officers were behind it all. “Inhumanly murdered” the Gazette said of “the unfortunate boy,” “the young lad who last week fell a sacrifice to the Rage { 400 } and Malice of an Old Offender and his Abettors.” Richardson was called “infamous” three times, no less, once all in capital letters.22 Even the loyalists had to acknowledge the propaganda triumph of the patriots. “So artful were they in their account that it was almost universally believed that the Commiss[ioners of Customs] were Abettors in this Affair.”23

The funeral was a somber and effective climax to the press attacks. John Rowe, in whose company John Adams attended the rites, was “very sure two thousand people” were there,24 and Adams' “Eyes never beheld such a funeral.”25 As the cortege wound its way past the Liberty Tree, the mourners could read on a board tacked thereto these appropriate sentiments: “Thou shalt take no Satisfaction for the Life of a Murderer. He shall surely be put to Death. Though Hand join in Hand, the Wicked shall not pass unpunished.”26 Adams wrote afterward in his diary: “This Shewes, there are many more Lives to spend if wanted in the Service of their Country. It Shews, too that the Faction is not yet expiring—that the Ardor of the People is not to be quelled by the Slaughter of one Child and the Wounding of another.”27 If the articles and the demonstration could have this effect on Adams, whose ability to distinguish patriotic heroes from “saucy boys” was to receive a public demonstration within the year,28 how well had the affair fulfilled its designed purpose “to raise the passions of the people, and to strengthen” the cause “in which their leaders had engaged them.”29 It is probably fair to say that if the troops had not fired on the mob less than two weeks after Richardson killed young Seider, the Sons would have celebrated not 5 March, but 22 February, as the anniversary of the first effusion of patriotic blood. As Hutchinson pointed out, the funeral of young Allen, killed in the St. George's Fields riot over John Wilkes in 1768 was a good recent example of the technique.30

But the King Street riot did occur, and, though its long-run effect on Richardson was to thrust him from center stage, its immediate result was { 401 } to render his chance of a fair trial minimal and of acquittal zero. Two things assured this. First, popular prejudice, already heated by the newspapers and the funeral, burst into passionate flame over the actions of the soldiers; Revenge! was the cry, anything loyalist and powerless the object. Second, the rancor against Captain Preston and the soldiers was so great, and, apparently, the official interest in defending them so much higher than in Richardson's case,31 that, although the court “chose to postpone the Trials, untill there might be some Chance of Justice being uninterrupted,”32 when Sam Adams and a delegation “waited on the Superior Court and insisted upon their proceeding without any adjournment on the tryal of Preston, &c.,”33 the judges were forced to bargain. At first, it is true, the judges “notwithstanding this demand and the risque they run of being torn to pieces should they counteract the will of this Sovereign Committee . . . continued to try civil Causes only.” But “The people being very uneasy that the criminal tryals were not brought on, the Court found it necessary in order to keep them a little quiet to arraign Richardson.”34

“The existence of a state of public opinion which prevents a fair trial is a danger to which the jury system is always open,” Holdsworth has written. “And it is a danger against which there is no remedy except the existence of an impartial, a humane, a courageous, and a learned bench.”35 He might have added “and a strong civil authority.” In the opinion of Judge Oliver, “had a Trial been refused, it was rather more than an equal chance that the Prisoners [i.e. Preston and the soldiers as well as Richardson] would have been murdered by the Rabble; and the Judges been exposed to Assassinations.”36

According to the anonymous reporter whose narrative is in the Bernard Papers, “Richardson was arraign'd on a Monday and directed to prepare for his tryal on the Friday following. Accordingly on the Friday he was brought to the Bar and ask'd by the Court if he was then ready. He observ'd to the Court that he had made application to almost every Lawyer in town to undertake his cause, which no one would do, that the Constables had refused summoning his Witnesses,37 that the Jailer, had used him in so { 402 } cruel a manner that he was even frequently debarred the Liberty of conversing with his friends, that every Newspaper was crouded with the most infamous and false libels against him in order to prejudice the minds of his jury; that without Counsel, without the privilege of calling upon his Witnesses to support his innocence he was now to be tried for his life. The Judges moved with compassion at this representation put off the trial to a further day. The Court then made application to the several Lawyers present to appear as his Counsel but this one and all of them declined. The court finding that a requisition had no effect asserted their Authority and order'd Mr. Fitch the advocate General to appear on his behalf on his trial. Fitch made use of a variety of arguments in order to excuse himself which the Court did not judge sufficient. He concluded with saying that since the Court had peremptorily ordered him, he would undertake it, but not otherways.”38

The right to counsel availed Richardson little, because Fitch was sick on the two occasions the case was called for trial, the last one being 17 April.39 The court thereupon appointed Josiah Quincy; three days later Richardson and Wilmot went on trial.40 For the Crown, Solicitor General { 403 } Samuel Quincy and Robert Treat Paine divided the prosecution, establishing the pattern they were to follow later that year in the Massacre trials.41 According to a later newspaper account, “The cause was opened, and the evidence examined in behalf of the Crown by a Gentleman of superiour ability, who was assisted by another Gentleman, employed by the Town of Boston42 perfectly acquainted with the law, who performed his part with such distinguished talents, as did honour to himself, and gave intire satisfaction to his constituents. The evidence in behalf of the Prisoner being examined by a Gentleman who did not speak to the case, gave the other Gentleman who was his Attorney a greater opportunity to enlarge on the law and evidence in his favour; who, actuated solely from the motive of humanity, as he did it without fee or reward, and at the hazard of losing his popular reputation, so ably managed the law and evidence, in bringing such pertinent authorities to support the facts, and making such just remarks on the same, as fully convinced me of his abili• { 404 } ties as an Attorney and of his benevolence as a citizen, in endeavouring to preserve the life of a fellow-subject; although his appointment to this task did not add to his reputation among the people at that time, yet the faithfulness and impartiality he shewed for the Prisoner must certainly more than compensate for any loss he might sustain in this or any other respect.”43

Paine's notes of the trial appear as Document II, below. They set out the evidence and most of the arguments, but do not describe the atmosphere of the courtroom. Some of the passion and hatred that filled the onlookers and tainted the proceedings filters through the subsequent testimony of the jurors and the keeper. But the contemporary accounts detail the picture even more vividly. To appreciate the legal context, it must be realized that Richardson's principal defense had been that, because the mob had attacked him in his own house and endangered his life, he had been entitled to protect himself in any way possible, including killing one or more of his assailants; the prosecution sought to show and to argue that the crowd was composed of nothing more than rowdy schoolboys, whose insults and stone-throwing had never endangered Richardson's life. Moreover, the Crown contended, whatever anyone else was doing, the boy Seider was not, at the moment Richardson fired, threatening his life. These were also the patriot views, and they have generally prevailed among historians.44 To this last, the defense argued that, because Seider had been part of the illegal enterprise, his killing, although perhaps not justifiable as self-defense, amounted only to manslaughter. Even if Seider had been a wholly innocent bystander, if Richardson had been justified in firing the gun at all, he would not be guilty of murder.

“Richardson's Trial continued till late on Friday night. After the witnesses were examined and the lawyers had done pleading the Judges gave their charge to the Jury. They said it appeared by the Evidence that the prisoner was attacked in his own house by a number of tumultuous people. That what he had done was in his own defence. That self-defence was a right inherent in every man. That the persons who had encouraged putting up these hands were guilty of the murder and not the prisoner and they were convinced the jury could find him guilty of nothing more than manslaughter.”45

“There was a vast Concourse of Rabble at the Trial.”46

“The Court upon summing up the Evidence to the Jury were all of { 405 } opinion that if what the witnesses on both sides had sworn was believed the fact could amount to no more than Manslaughter. Mr. Just. Oliver doubted whether it could amount to that and with great spirit charged the death of the Boy upon the Promoters of the Effigies and the Exhibitions which had drawn the people together and caused unlawful and tumultuous assemblies and he did not excuse such as had neglected suppressing these Assemblies as the Civil Magistrate had done.”47

“[W]hilst one of the Judges was delivering his Charge to the Jury, and declaring his Opinion, that the Case was justifiable Homicide, one of the Rabble broke out, 'D—n that Judge, if I was nigh him, I would give it to him'; but this was not a Time, to attempt to preserve Decorum; Preservation of Life was as much as a Judge dared to aim at.”48

“After the Judges had done speaking the mob became very outrageous, called out that they hoped no Jury dare acquit him. 'Remember jury you are upon Oath.' 'Blood requires blood.'”49

“[The mob] designed to have hanged the Prisoner as he came out of the Court House, to be returned to Prison untill the Jurors Verdict was settled; and they provided an Halter, ready at the Door of the Court Room, for the Purpose; but the Court had ordered the Sheriff, with the Peace Officers, to lock him into the Court Room untill the Mob had dispersed.”50

“The judges found it necessary to remain in Court for upwards of an hour, and also to detain the prisoner till the mob were in some measure dispersed least they should destroy him in his way from the Court house to the Jail. It is said they had a rope in Court ready to hang him. The judges were hissed and abused in a most shameful manner in passing from the bench to their carriages.”51

The jury (none of whose members came from Boston) began its deliberations at 11 p.m.52 and, without food, drink, or sleep, debated until 8 or 9 o'clock the next morning.53 The verdict as to Wilmot was Not Guilty;54 { 406 } as to Richardson, Guilty of Murder. “An universal clap ensued,”55 and “the Court Room resounded with Expressions of Pleasure; 'till, even one of the Faction, who had some of the Feelings of Humanity not quite erased, cried out, 'for Shame, for shame Gentlemen!' This hushed the clamorous Joy.”56

At first, the grounds for the verdict were unknown. “I have not yet heard whether the Jury did not believe the W[itnesses] for the Prisoner or whether they thought themselves better J[udges of] the Law than the Court or whether they were intimidated by die [ . . . ] of the Inhabitants of Boston.”57 Notwithstanding, the defense apparently moved immediately for a new trial. This was a difficult motion to carry in the 18th century under the best of circumstances, and the court did not consider it seriously at that time. As Hutchinson noted, “The court was at first in distress. It was hard to be obliged to give judgment upon a verdict which appeared to them directly against law; and it was difficult, in the state of the town, to order the jury out a second time, or to refuse or delay sentence after the verdict was received.”58 So the court compromised. “The Verdict was received and recorded,”59 but the court adjourned without passing sentence until 29 May 1770.60

On that date, two of the judges being ill, the court further continued the matter to 31 May and then to 6 September.61 At last, on 6 September, at least one judge and all the lawyers having dined together at John Adams', the jurors were called back in and individually examined.62 Judging from Paine's minutes (Document III), the verdict had rested on at least two of the grounds which Hutchinson had hypothesized. The jury had pretty clearly found the facts the Crown's way and it had certainly been exposed to the rancor of the courtroom mob, although the shouts of the crowd were “not mentioned in the Jury Room.”63 But the jury apparently did not consciously take to itself the decision of the law. Indeed, the willingness of eleven jurors to leave the law to the court was the lever which ultimately moved the last man, Thomas Lothrop, who finally agreed to vote Guilty on the assurance of the others that “if the verdict was not agreeable to Law the Court would not receive it.”64

The jurors having testified (whether on oath or not is unclear), the court heard defense counsel's argument for a new trial. From Paine's minutes, it appears that Blowers made three alternative points: first, that the jury intended to follow the court's direction and find manslaughter, so the court should effectuate that intention; second, that the shouts as the jurors were retiring amounted to conversations with the jury sufficient to nullify a verdict of Guilty; third, that the verdict was so contrary to law and evidence that the court should order a new trial.

There was some authority for granting a new trial to a defendant whom the court considered to have been improperly convicted, and Blowers (or whoever was arguing that branch of the motion) appears to have brought it all to the court's attention. The trouble was that the opinions cited dealt with noncapital offenses, and the English law did not allow new trials in capital cases.65

It is apparent from the notes that counsel was very much aware of the doctrine, soon to be tested anew in the English criminal libel trials,66 that the jury was the proper finder not only of fact, but of law as well. Everyone agreed, and had for a hundred years, that no matter how blatantly a jury disregarded the court's directions, neither it nor any of its twelve members could be punished for so doing.67 This was true in civil and criminal cases alike. In the former class of litigation, “if the Jury find against Evidence and the Direction of the Court,” the judges could alleviate the problem by granting a new trial.68 Thus, in capital criminal matters, the most that lay in a court's power was to remind the jury that it was on oath to find according to law, that the court knew the law better than the jury, and that the jury would be risking its conscience by finding contrary to the rules laid down by the court. And as Lord Mansfield himself noted, the jury could always end the question by bringing in a Not Guilty verdict, right or wrong.69 The court could also advise the jury that, if it had any doubts of the law, its safest course was to bring in a special verdict. If the jury followed the recommendation, its verdict would take the form of a series of recited facts, found from the evidence, concluding with a prayer to the court to decide on the basis of those facts whether the defendant was guilty or not.70

But the jury, in the last analysis, did have the “final power” to decide { 408 } according to its own view of the law. “This power,” as James Bradley Thayer has noted, “where it was uncontrollable, has been considered by some to be not distinguishable from a right; and it is not at all uncommon to describe it thus—as a right to judge of both fact and law.”71

Faced with the double problem of apparent jury omnipotence and inability to grant a new trial, the Massachusetts court temporized and followed the advice of the 17th-century criminal-law writer, Sir Matthew Hale, “to reprieve the person convict before judgment, and to aquaint the king, and certify for his pardon.”72 This made better political sense, too, than passing sentence and then having the Lieutenant Governor suspend execution pending receipt of the pardon, at which “the people would have been more enraged, than merely at the court's suspending their own determination.”73

Hutchinson apparently wrote Lord Hillsborough, at an unspecified time after the verdict, recommending a pardon; the Hutchinson letterbooks in the Massachusetts Archives contain nothing precisely on this point. However, in a letter to Hillsborough dated 15 May 1771, Hutchinson referred to “the Instrument which accompanied” one of Hillsborough's earlier letters; this, Hutchinson said, “I have caused to be communicated to the Judges of the Superior Court. Some of them are struck with the informalities of it for the purpose for which it is intended, and they have thought it advisable to defer their determination until their Court which is to be held on the third Tuesday of June in the County of Essex. Whatever it may be as to the sufficiency of the Instrument in point of form, it carries such evidence with it of His Majesty's most gracious pleasure with respect to the immediate Subject of it that must stop all further proceedings against him.” The “Instrument” can only be the copy of the pardon order, dated 12 February 1771.74 When one recalls that the Court did not examine the jurors until 6 September 1770, the probable chronology appears to be this:

After the examination, the court concluded it could do nothing, and Hutchinson wrote to England, asking for a pardon. As a result of the usual delays attendant upon a North Atlantic passage, coupled with the slowness of official action, the pardon order did not issue until 12 February 1771, and was not received in Boston until the beginning of May 1771.

Throughout the summer the judges and Hutchinson temporized. Their chief concern was the form of the “Instrument,” which was really only a copy of an order from the King to the Recorder of London to insert Richardson's name in the next “Newgate” Pardon—so-called because it referred to “our poor convicts in Newgate” Prison. As Hutchinson wrote to former Governor Pownall in August, “Neither the Judges nor the Attorney General { 409 } are clear in the discharge of Richardson without some further evidence of His Majesty's pardon. We have no precedent upon record in this province. They say that if there was no other Exception to the form of the Instrument yet it is no more than a Warrant to insert the name of Richardson in a pardon which it does not appear to them has ever been done. If a Copy could be procured of the pardon attested I hope it may be sufficient. I am not acquainted in what manner pardons are passed for such persons whose sentences are respited in the several Counties in England but if it be usual to insert the names of such persons in the Newgate pardons I wish to be furnished with a Certificate that it is so.” Hutchinson even proposed that a Royal Warrant issue, permitting Hutchinson to issue the pardon himself, under the Province seal. This was rejected, but not until 3 March 1772 did Hutchinson receive his final instructions.75

Meanwhile, Richardson remained in jail, while the patriot press flayed him and his protectors. The Massachusetts Spy and the Boston Gazette claimed that the court planned to enlarge the benefit of clergy by admitting him to it.76 By early 1772, the patriots were becoming impatient over Richardson's fate. The Massachusetts Spy published some bitter doggerel referring to the two soldiers' having pleaded clergy as well as Richardson's remaining alive: “The basest murderers, full of guilt and crimes / Have gone unhung by reason of old LINES / So we were disappointed in our hopes / But for the future they'll be hung by Ropes.”77 The Boston Gazette ran a lengthy piece signed “Callisthenes” which urged that Richardson was either innocent, and should be released, or guilty, and should be executed. “Is Richardson kept in goal in order to recommend him to mercy?” “Callisthenes” asked. “The honour of magistracy ought openly to avow it:—the wisdom of the recommenders ought to justify it. . . . Let not the infamy of the man give origin to an acquiescence in unjustifiable confinement. . . . What is law for a Richardson is law for a Sidney. If oppression is warranted by law, the Patriot is much more likely to fall a victim than the pimp and pander. Hampdens will stain the scaffold with blood, while a robber or murderer finds a city of refuge.78No tyranny so secure, none so intolerable, none so dangerous, none so remediless, as that of Executive Courts.”79