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Browsing: Legal Papers of John Adams, Volume 2

Docno: ADMS-05-02-02-0008-0002-0004

Author: Adams, John
Date: 1769-05

Plea to the Jurisdiction1

Special Court of Admiralty, Boston, May 1769
Province of the Massachusetts BayTo the Honble. the Commissioners <of the> constituting the Special Court of Admiralty for the hearing and determining of Piracies Robberies and Fellonies committed upon the high Seas, begun and held at Boston in the County of Suffolk, and Province of the Massachusetts Bay in New England in America on the twenty third day of May in the Ninth Year of the Reign of George the Third by the Grace of God of Great Britain, France and Ireland, King Defender of the Faith &c.
{ 289 }
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
1. In JA's hand. Adams Papers, Microfilms, Reel No. 184. Docketed in another hand: “Michael Corbett & the 4 sailors who kill'd Panton in defence of th[eir] liberty.” There were of course only four sailors involved. Similar pleas in JA's hand in behalf of John Ryan and Pierce Fenning are in MBAt:Ezekiel Price Papers. See notes 661, 162, below. Quotation marks supplied.
2. 28 Hen. 8, c. 15, §§1, 2 (1536).
3. 11 & 12 Will. 3, c. 7, §§1, 4 (1700).
4. 4 Geo. 1, c. 11, §§7, 9 (1717).
5. The commission recited all three statutes, but in constituting the court it gave it only powers provided by the Act of William III. See p. 276, note 8 above. Compare JA's report, text following note 1755 above.
6. The plea of John Ryan (and, mutatis mutandis, that of Pierce Fenning) concludes as follows:
“Now the said John says that the Commission whereby this Honourable Court is constituted, authorizes it to proceed only according to the Directions in the said Act made in the Reign of King William the third, that is to say according to the Course of the Admiralty, according to the civil Law, and the Methods and Rules of the Admiralty: And <that the Matters> according to the other particular Rules and Methods, therein <panic> described and explained: And the said John further says that the Matters and Things contained in the Articles aforesaid, exhibited against him, by Ezekiel Price Gentleman, ought now by Law to be heard and tryed, by a Court constituted according to the said Act of Parliament made in the Reign of King Henry the Eighth, and ought to be enquired of heard, tryed, determined, and adjudged, <accor> by the oaths of twelve good and lawfull Men, in such manner and Form as in and by the same Act of King Henry the Eighth, is directed and appointed, and as by the Laws of the Realm of Great Britain is accustomed.
“Wherefore the said John prays Judgment if this Court will take any further Cognizance of the Matters and Things charged upon <said Michael> him in said Articles.” In JA's hand. MBAt: Ezekiel Price Papers.

Docno: ADMS-05-02-02-0008-0002-0005

Author: Adams, John
Author: Price, Ezekiel
Date: 1769-05

Additional Pleadings1

Special Court of Admiralty, Boston, May 1769
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.
[signed] Ez. Price
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.
[signed] J. Adams
{ [facing 292] } { [facing 293] }
1. In Jonathan Sewall's hand, signed by Ezekiel Price, and in JA's hand, signed by him, appended to pleas of Ryan and Fenning, notes 156, 661, above, MBAt:Ezekiel Price Papers.

Docno: ADMS-05-02-02-0008-0002-0006

Author: Adams, John
Date: 1769-06

Adams' Minutes of the Trial1

Special Court of Admiralty, Boston, June 1769
Mr. Fitch.
About the Time of the Blow—the 2d Pistol was fired.
Commission from Commissioners.
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
{ 298 }
Mr. Henry Stanhope. Midshipman cozn. [cousin] of E[arl of] Chesterfield.8
{ 299 }
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.
{ 300 }
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.
{ 302 }
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
{ 303 }
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
{ 307 }
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.
{ 308 }
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.
{ 309 }
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.
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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.
Mr. Fitch's Application of the Evidence.
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.
{ 311 }
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.
Our Witnesses.
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.
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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
{ 319 }
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
{ 320 }
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 say37would 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
{ 321 }
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.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 184.
2. In margin: “Mem. Motion by Advocate General that he might have a written Account prepared before.” A scuttle is a small opening in the deck with a moveable lid. See OED.
3. In margin: “Note.”
4. Robert Trail or Traill (d. 1785), Comptroller of the Customs at Portsmouth, later to be proscribed as a loyalist. Jones, Loyalists of Mass. 278–279; 2 Sabine, Loyalists 361.
5. BA's reading. MS (apparently): “favr.”
6. Thus in MS.
7. JA's supplementary notes (see text at note 25 above and note 3395 below):
“Mr. Bowen, Midshipman. Was with Mr. Panton, when he went on Board the Brigg. The Mate threw out a wharp [i.e. a line] for the Boat. Panton enquired for the Master and went down to the Cabin with him as did Mr. Bowen and Mr. Stanhope, another Midshipman. Panton enquired where the Brig came from. Master said from Cadiz loaden with Salt, for Marblehead. Mr. Panton demanded his Bill of Lading, Clearance and other Papers. Master replyed he had no Bill of Lading or Clearance, only a Bill of Health which was all the Papers he had, and produced it, having it in his Hand ready. Mr. Panton next enquired how many Men he had on Board? Master answered 6 before the Mast, besides himself and Mate. Mr. Panton asked for his Log Book; and said He would order the Roses People to go down into the Hold, to search for unaccustomed Goods, or to that Purpose; and desired the Hatchways and Scuttles to be opened, which the Master said should be done. Mr. Panton, Mr. Bowen and Mr. Stanhope, went upon Deck leaving the Master in the Cabin and there desired the Mate to send all his Hands aft, at the same Time ordered the Roses Boats Crew to go down below and search. The Mate said he would send what Hands there was aft. Panton made answer, he must send them all. Mate said he could not send them all aft, but he would go and call them: Mate went, and Mr. Panton ordered Mr. Bowen to go with him. The Mate called the People, but none answered. Mate went aft and informed Mr. Panton. Mr. Panton then said We must search for them. Lights were got. Mr. Panton ordered Mr. Bowen with two of the Boats Crew, to go into the Hold and search for the Men, but found nor heard none. Mr. Bowen came out of the main hold and went forward. Gibson, one of the Boats Crew said to Mr. Bowen There is a Scuttle, pointing to one before him, which Mr. Bowen ordered him and Churchill, another of the Boats Crew, to take up. Churchill taking up the Scuttle, called out, “here they are!” and desired the Men he saw to come up; they, the Brigs People, swore bitterly, that the first man, who dared to approach them, they would cutt his Limbs off, at the same Time shewing a Hatchet, a Harpoon, a Musquet and fish Gig. Mr. Bowen then said his Lieutenant wanted to see them, and desired they would come upon Deck. They swore they would not. Mr. Bowen informed Mr. Panton of what had happened. Mr. Panton, hearing it, went forward himself with Mr. Bowen and mildly desired the People to come up, 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 for that Purpose, They repeated to him, what they had threatned to Mr. Bowen, and shewed Mr. Panton their Weapons. Mr. Panton desired them a second Time, to 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 Mr. Bowen to man the Roses Boat, and send Mr. Stanhope on Board for assistance. Mr. Bowen returned to Mr. Panton and found him talking to the People endeavouring to perswade 'em to come out, explaining the Folly of being obstinate. They said several Times in Mr. Bowens Hearing, if there was 50 men armed, they would not be taken, and told Mr. Panton, if he had any Regard for his own Life, he would let 'em pass. He answerd it was his Duty, and he could not do it. They said they knew he was a Lt. and his orders, and desired him 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 them, desiring they would let him see, thro the scuttle, what Sort of a Place it was they were in. One of 'em, took the Candle, and lighted it about the Place where they stood, Mr. Panton said he could not see it and wanted to go down; They said he should not go down, and if he attempted it, they would that Moment shoot him; presenting their Musquet, which they said was loaded with Sluggs, and primed. Then they returned the Candle. Mr. Panton said, Aye? will you shoot me? And in a joking manner added I will take a Pinch of snuff first; and ordered Mr. Bowen to go and see if the Boat was returned. The Boat was just then come back with Mr. Peacock a Midshipman, Mr. Stanhope, Forbes the Master at arms, and Boats Crew. They all went below. Soon after, Mr. Panton orderd Mr. Peacock and Boats Crew to open the Bulkhead of the Place, where the Briggs People were. As soon as the Boats Crew began to work upon the Bulkhead, the Briggs People said they would shoot the first Man that made a Hole. One of them advised the others to shoot the Lt. first and divide themselves. 2 to defend the scuttle and 2 the Bulkhead. One of those at the scuttle, presented a Musquet, another a Fish gig and one from within called out fire. Mr. Panton and Mr. Bowen having their Swords drawn, Mr. Bowen with his, struck the Musquet downwards, out of its Direction at Mr. Panton, Mr. Panton then went towards Mr. Bowen and ordered the Scuttle to be put down, which Woodgate (one of the Boats Crew) did and stood upon it, to prevent their Doing Mischief that Way, or coming out. Then Mr. Panton and Bowen left the scuttle and went to the Bulkhead to see what Mr. Peacock and the Boats Crew had done there. The Master at arms had begun to make an opening, with a Crow, and having made a small one, one from within presented a Musquet thro it, threatning to shoot him. When Mr. Panton and Mr. Bowen went to the Bulk head, the Roses Men were seperated at each End of it. Mr. Panton went to the starboard side, where Mr. Peacock was, with some of the Boats Crew; Mr. Bowen to the Larboard side, where Forbes, Silley and Sinclair were. The Man who presented the Musquet at Forbes, removed to the other Side upon which Forbes with the Crow broke off a Piece of Plank, then gave the Crow to Sinclair and took up his Pistol; again one within presented a Musquet at Sinclair which he snapt, 3 times; all the others calling out to Fire, damning the Musquet 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 and almost immediately Mr. Bowen heard the Report of a Pistal, which Silley says was fired by him, without Ball at the Man, that threatned the Lt. so hard, and had several Times snapt his Musquet at him; in order to frighten them and make them submit. Mr. Panton during all this Time, frequently begged of them to surrender or he must clear his Way to come to them. But all of 'em said they would shoot Mr. Panton first and Forbes after before they would be taken.
“Upon hearing the Report of a Second Pistol, Mr. Bowen turned about, and saw Mr. Panton had been wounded in the Throat with a Harpoon, and a Pistol had been fired at the Person who did it, and Mr. Peacock endeavouring to stop the Effusion of Blood with his Hankerchief. P[anton] expired in less than 2 Hours.”
8. In margin: “[Learnt?] it perfectly before I came into Court.” Philip Dormer Stanhope (1694–1773), fourth Earl of Chesterfield, and author of the famous Letters, was Midshipman Stanhope's cousin.
9. In margin: “Q. for what.”
10. JA's supplementary notes:
“Mr. Stanhope, Midshipman, says he went on board with Mr. Panton, that the Mate threw a Rope to the Boat. Panton went down to the Cabbin, Bowen and Stanhope followed. Panton demanded Bills of Lading and Clearance. Master answerd he had only Bills of Health, which Mr. Panton desired to see. Mr. Panton then [asked] for his Log Book, which he produced. Mr. Panton enquired how many Men there were on board. Master said 6 besides himself and Mate. Mr. Panton then said he must open his Fore and After Peak, and let his Men search for prohibited Goods, or to that Purpose. Master answerd very well. They went upon deck and the Master came up after. Mr. Panton then ordered Mr. Bowen and 2 of the Boats Crew to go down into the Hold, and Mr. Stanhope upon deck to look after the Roses Boat. Mr. Bowen came upon the Quarter Deck and acquainted Mr. Panton, that there were Men below, who swore, the first Man who came near 'em was a dead Man. Soon after he was sent on board the Rose for Assistance, and knows but little more.”
11. Here, as on some other occasions in JA's minutes, the answer appears without a question.
12. JA's supplementary notes:
“Mr. Peacock, Midshipman, says, at his Arrival on board the Brigg he enquired at the Mate, where Mr. Panton was who informed him, he was down the Fore hatchway; Mr. Peacock went down immediately followed by the Boats Crew, and asked Mr. Panton what was the Reason of the Disturbance, who told him, the People were so obstinate, that all the arguments he could make Use of, were to no Effect, that they had told him they were resolved to die, sooner than be pressed on board a Man of War. Mr. Panton then ordered Mr. Peacock down the main Hold to force down a Bulkhead, which parted the main Hold from the fore hold where the men were. He went down and ordered the Boats Crew to knock down the Bulkhead as fast as possible. When they began the Briggs People within threatned immediate Death, to the first Person they saw, and presented a Gun thro one of the Holes, which they snapp'd 3 Times. By this Time, the Bulkhead was so much down as to give an imperfect Light of the Place. We could observe there were 4 men in it, differently armed, with a fish Gig, Harpoon, Musquet, and ax, still threatning to kill whoever durst approach them. Mr. Panton then came down, and orderd the Men to withhold from breaking the Bulkhead till he had spoke to them within. He then represented to them the folly of persisting, against such a superiour Number, the Impossibility of their Escape, promising them good Usage, if they would <surrender> voluntarily come out. But they were deaf to all he said, told him, they knew him to be a Lt. and the Men acted by his orders: that the first Man they saw offer to break the Bulkhead, they would do for him <meaning Mr. Panton->. One of our Men then fired a Pistol at the Man who told Mr. Panton so, loaden with Powder only, as the Man afterwards declared (who fird), in order to intimidate them, which must be true as it had no other Effect, than scorching the face of the Person fired at. Upon which the Man whose face was scorched asked Mr. Panton why his Men fired at him, and desird him to look what was done. Mr. Panton then replyed it was not done by his order, and that he would shew him the Man, when he came on board (meaning as Mr. Peacock understood) he should get Satisfaction and immediately took the Pistol from the Man, and gave strict orders no one should fire without his Directions. Mr. Panton then desired the Men to proceed with knocking down the Bulkhead, which they did as well as possible, being interrupted by those within, who kept presenting their Piece, and striving to hurt our Men with their other Weapons. Mr. Panton gave orders to stop, and asked those within, whether they would come out, they answerd they would not; Mr. Panton then asked one of them, if he would lend him his ax, to knock down the Bulkhead a little faster? who answerd he'd lend it to scalp him. Mr. Panton then gave orders to knock down the Bulk head directly, which we were going about, when one of those within made a Lunge at Mr. Panton with a Harpoon and Mr. Peacock immediately fired his Pistol. He stood in his former Position, for a few seconds, and then said, Peacock, the Rascal has stabbed me in the Jugular Vein. Mr. Peacock ran, and bound his Neck with his Hankerchief. He died in less than 2 Hours.”
13. Grains are prongs of a fish gig. OED.
14. Thus clearly in MS, although BA reads “em.”
15. “JA's supplementary notes:
“John Forbes, Master at Arms. Says, he heard the People after he came on Board, <say> call out from below, 'come on Ye Dogs, Here we are.' Forbes threw off his Coat, and went down the Main Hatchway to the Bulkhead of the Forehold, where the Briggs People were. One of the Boats Crew followed him with a Light by the Help of which, he saw the Bulkhead, and said it could not be broke down without an Iron Crow. Went on deck and found one; at which Time he saw Mr. Panton who ordered him to go down and force open the Bulkhead. He accordingly went, and began to work on the starboard side; the first or 2d. stroke he gave, the People within called out, 'Come on Ye Dogs, thats all we want,' to which Forbes answerd he expected to get 4 or 5 dollars, for the Vessell yet. With 5 or 6 Blows he made an opening in the Bulkhead, so as to see the People within. Mr. Panton then came down from the scuttle; Forbes continued to knock down the Bulk head towards the Larboard Side; The Briggs People all the Time threatning to murder the Lt., when one of them called Corbit by the others, saw the Lt., thro the opening that was made, said 'Mr. Lt. I will kill you first and you may be certain of Death, if you do not go about your Business,' at the same Time presenting a Musquet at Mr. Panton, others with a Fish Gig, Harpoon and Ax, swearing and repeating Corbetts Threats without Intermission, Mr. Panton all the Time gave them not the least Provocation or abuse, on the Contrary, very fair Words, Forbes desird 'em to point their Weapons at him, and not hurt a Gentleman who meant them no harm, and told them if they continued to point their Weapons at Mr. Panton, he would fire at em, then they made several Pushes at Forbes, and one called Ryan, striking a Fish Gig at Forbes and not throwing it out far eno to do Execution, the others within called him a Coward and struggling to take the Fish Gigg from him, the Grain dropped from the Pole. The Person called Corbet then took up a Musquet and snapt it 3 Times at Sinclair, one of the Boats Crew, and afterwards at Forbes damning it for not going off. Forbes by this Time had cleared away the Bulk head, as far as the Larboard Wing, except a Piece of Plank about Midships which Corbet tryed to pul down himself, saying he wanted Room to kill the Lt. Mr. Panton, hearing that, said Aye my Lads? Silley who was on the Larboard side with Forbes, made several Attempts to bring down the Board. One of them within pointed a Musquet at him, which he got hold of. But not being able to keep his Hold, went to the starboard side, where Panton was, and took up a Pistall, which the Person called Corbett, seeing in his Hand dared him to fire. Silley made answer if he did not go back from the opening he would fire at <Cor> him. Corbet then said, 'Fire if you dare: I will not go back, I will kill the first of you.' Immediately after Forbes heard a Pistol go off, and a Person call to the Lt. and those from within, push their Weapons so hard at them that Forbes called out to Mr. Panton he must be obliged to fire, to save his Life; which Mr. Panton strictly forbid him to do upon his Peril, and took a Pistoll from Silley and blew the priming out; then Forbes saw the Person called Corbet dart a Harpoon at Mr. Panton and immediately after a Pistol go off, followed by a groaning in the Hold.”
16. The word “Prisoner” is an apparent inadvertence. See testimony of the Marine, Wilks, text following note 38100 below, which indicates that it was the prisoners who made the offer of food.
17. The MS apparently reads “alls,” which makes no sense. BA's text reads “also.” Presumably, the following sentence is an answer by the witness, but even this is uncertain.
18. Panton's commission has not been found. As to the powers of naval officers generally, see No. 51, note 1. The Act of Parliament referred to is 7 & 8 Will. 3, c. 22, §6 (1696).
19. These two sentences are apparently a colloquy between Hutchinson and Fitch over Peacock's testimony, Fitch referring to the testimony taken by the Register of the Court of Vice Admiralty. See text at note 17 above. For Peacock's testimony, see text following note 1072 above.
20. Apparently JA's comment. See text following note 567 above; see also note 2991 below.
21. 2 Hale, Pleas of the Crown 16–17, discusses 28 Hen. 8, c. 15 (1536): “The offender excluded from clergy; but quaere, whether the statute of I Edw. 6 c. 12 (1547) does not restore it even in this case.” The statute Hale mentions, “An Act for the Repeal of Certain Statutes Concerning Treasons and Felonies,” abolished clergy for certain offenses (not including killing on the high seas) and in the same section (§10) specifically allowed clergy “in all other cases of felony other than such as are before mentioned.”
22. 1 Hale, Pleas of the Crown 455:
“Concerning Murder by Malice Implied Presumptive, or Malice in Law. “When one voluntarily kills another without any provocation, it is murder, for the law presumes it to be malicious.” Id. at 457: “The second kind of malice implied is, when a minister of justice, as a bailiff, constable, or watchman, etc. is kild in the execution of his office, in such a case it is murder. If the sheriff's bailiff comes to execute a process, but hath not a lawful warrant . . . if such bailiff be kild, it is but manslaughter, and not murder.”
23. Capias is a writ ordering the sheriff to take the body of the defendant; a distringas orders the sheriff to take goods of the defendant to compel his appearance. Black, Law Dictionary. “[I]f a process issuing out of a court of record to a sergeant at mace, sheriff, or other minister, be erroneous, as if a Capias issue, when a Distringas should issue, yet the killing of such a minister in the execution of that process is murder.” 1 Hale, Pleas of the Crown 457.
24. Mackalley's Case, 9 Co. Rep. 65b, 68a, 77 Eng. Rep. 828, 833–834 (1612). This supports the point in note 2385 above.
25. 1 Hale, Pleas of the Crown 458:
“A bailiff jurus & conus had a warrant to arrest Pew upon a Capias, and came to arrest him, not using any words of arrest, Pew said, Stand off, I know you well enough, come at your peril, the bailiff takes hold of him, Pew thrusts him through; it was ruled murder, tho he used no words of arrest, nor shewed his warrant, for possibly he had not time.” Rex v. Pew, Cro. Car. 183, 79 Eng. Rep. 760 (K.B. 1631).
26. 1 Hale, Pleas of the Crown 458:
“A bailiff having a warrant to arrest Cook upon a Capias ad satisfaciendum came to Cook's house, and gave him notice, Cook menaceth to shoot him if he depart not, yet the bailiff departs not, but breaks open the window to make the arrest, Cook shoots him, and kills him; it was ruled, 1. That it is not murder, because he cannot break the house, otherwise it had been, if it had been upon a Habere facias possessionem. 2. But it was manslaughter, because he knew him to be a bailiff. But 3. Had he not known him to be a bailiff, or one that came upon that business, it had been no felony, because done in defense of his house.” Rex v. Cook, Cro. Car. 537, W. Jones 429, 79 Eng. Rep. 1063, 82 Eng. Rep. 225 (K.B. 1639).
A Habere facias possessionem is a writ directing the sheriff to put the plaintiff in possession of a given piece of realty. Black, Law Dictionary.
27. A place parted off at the fore part of the 'tween decks in some merchantmen, for storing provisions and stores. OED.
28. “The two men belonging to the brig not mentioned in the above account [i.e. the men not in the forepeak], were Americans, they remained on deck the whole time the Rose's people were on board her; the Commodore, out of his great goodness, having given orders, that no American or person married in America, should be pressed.” Boston Chronicle, 1 May 1769, p. 139, col. 2.
29. JA's supplementary notes:
“Thos. Power, Master. 22nd. April. 4 leagues from Cape Ann. The Rose fired 2 Guns, and bro't us to. Lt. and two Midshipmen came on board, in the Cutter. Asked me for my Papers and my Clearance. I said I had none, coming from a foreign Port, except a Bill of Health and a Bill of Lading. Then he asked for a List of my Men. I brought up my Shipping Book and shewed him. He then desired I would go down in the Cabbin with him. I did. He there took an Account of the Peoples Names, and asked where they were? I answerd I know not. He then asked me to order my People to open the Lazaretto. I told him it should be done. While he and I were talking together he ordered his People to go and search and get my Men. He then asked me if I had any particular favour for any Man. He would not take him, but he would set a Mark against his Name. He then said He would have taken only 2, but as they had hid themselves, he would take them all four. Then a Midshipman or Man came down, and told him, he had found the People out and that they had hid, in the forepeak and would not come out for them. Then the Lt. went upon Dick, and I saw him no more alive.”
30. That is, the wooden hood placed over the entrance or staircase to the master's cabin. OED.
31. BA reads this as “tough.”
32. Apparently written over “they.”
33. At this point in the MS are stitched in the eight leaves of rough notes in JA's hand, headed “Witnesses for the Prisoners. Thos. Power, Master. Hugh Hill Mate, John Ronay and James McGloclkin Mariners, on board the Pitt Packett.” The second part of the notes is headed “Witnesses against the Prisoners.” In the present arrangement the text of these notes has been divided up and each witness' remarks appended as footnotes to the full record of his testimony. See note 25 above.
34. The “broad arrow” (↑) was, in this connection, the sign that a vessel had been seized for violation of the Customs Acts. See note 8 above. The letter of the Commissioners of Customs ordering the Pitt Packet admitted to entry at Marblehead listed her cargo, including three small kegs, two cases, one-quarter barrel, and twenty-seven bottles of wine; sixteen bottles of champagne; three kegs of gin; and three-quarters of a barrel of “lemmons.” Commissioners to Salem Customs Officers, 27 April 1769, Salem Custom House Record Book, 1763–1772, fols. 280–281, MSaE.
35. JA's supplementary notes:
“Hugh Hill Mate. Like the Masters [testimony or, more likely, deposition] till—I heard the Commander of the Rose, order Captn. Power to heave too, and lay his Head as theirs was, which he did. Then like the Master untill He went down into the Cabin, with the Master. In 5 minutes he came upon deck, and asked me, if I was Mate? I told him I was. He told me to call the People to answer to their Names. 2, who were upon deck came aft. He asked me where the rest of the People were? I told him, I did not know. He then told me to go, and turn the People up from below, or he would take me. Use your Pleasure. Then his People came and told him, the Briggs People was down in the Forecastle in the Peak. He then went down into the Forecastle, and said to the Men in the Peak, my Lads, you had better come up. They <said> told him no, and to stand off, and that they did not want to hurt him or his Men. He told them, that he had seen as stought Fellows as they, and by God he would have them out, and called his Midshipman, to take 4 Hands in the Boat, and go on board the ship for more Men and Arms, and to bring the Cutter, properly armed. They came on board, and they called for Lights, which were given them. Lt. sent a Midshipman up and demanded Tools, to break down the Bulk Head, and if they did not deliver Tools he would confine the Master. Master said he had no Tools, if they could find any, they might take them. They found an Adz and a Crow bar. In a short Space of Time after, I heard a Pistall go off, and our People told me, one of our People was wounded. In 6 minutes after, I heard another Pistal go off. Immediately after they said the Lt. was dead. Midshipman hailed the ship, and called for the Dr., who came &c. and was asked to dress the wounded Man. He said let the Dog die and be damned. One of their Marines said, he fired a Pistol in Corbetts face by order of the Lt., thinking to make him retreat, which he would not.”
36. JA's supplementary notes:
“John Ronay, Mariner. As the Master. After the Lt. came up from the Cabin, I saw him have the Shipping Book in his Hand, and he asked the Mate, where the People were? Mate replyed, 2 of 'em were forward, and looking over the Shipping Book. Lt. called for Michael Corbit, and then for John Ronay. I answerd to my Name. A Man of Wars man came up and said, one of our People had drove a pair of Grains thro his Trowsers. Upon that the Lt. went forward, and talked to em, and said 'My Lads come up,' and they said they would not come up from where they were. He said then he would force them up. They replyed they did not want to hurt, or any of his Men. Then he orderd a Man to hail the ship, and a midshipman did hail and I got him the Trumpet to hail her. Lt. told one of the Midshipmen to go on board and fetch Men and Arms, and the Master of arms, who came, and jumped over the Ruff trees and swore by his Saviour, the he would have 'em up, asking where are the Dogs? One of their People made answer they are down here in the forepeak. He went down in the forecastle scuttle into the Hold, and in about 20 minutes I heard a Pistal go off. A Midshipman told me one of our People was wounded. About 5 minutes after, I heard another Pistall go off and about 6 minutes afterwards I heard the Lt. was killed.”
37. “they” ?
38. JA's supplementary notes:
“James McGlocklin. Lt. ordered me to give him a Light, which I did, and to go forward with it to the Forecastle. The Lt. was there, talking to the People in the forepeak. He told them to come out, for it would be better for them. They said they would not. He said he would have 'em out. They told him to stand off, for they did not want to hurt him, or his Men. Then I went aft. Heard Lt. order a Man to hail the ship and to take the Cutter, and go on board to get more Men and Arms. Upon the Mens coming on board he ordered me to get another Light and go down into the Hold, and showed him the main Hatchway. The Master of Arms asked me to look for a Crow bar, to break down the Bulk head, where the People were. He looked himself and found one, by the Water cask, and carried it down in the Hold. After that I went into the Steerage, and sat there some time and heard a Pistoll fired. Presently after that a Man of Wars man came up and told me, that one of our People, was wounded. Soon after that I heard another Pistoll and saw Jno. Ryan coming in the Steerage, and helped him over the Water Casks. Then he asked for Water and Cloths, and said he was faint. A few minutes after that, a Report came up that the Lt. was dead, &c.”

Docno: ADMS-05-02-02-0008-0002-0007

Author: Adams, John
Date: 1769-06

Adams' Argument and Report1

Special Court of Admiralty, Boston, June 1769
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.
{ 326 }
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
{ 327 }
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
{ 329 }
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
{ 333 }
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
1. In JA's hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184, continuing Doc. II. Printed in 2 JA, Works 528–534. It is impossible to say accurately how much of this document is JA's notes for actual trial use and how much is his subsequent embryonic report. See text at note 24 above. See also note 1250 above.
2. This contention is subject to qualification: “It is quite certain that the Crown had the power to impress mariners for the navy. The statutes of the Long Parliament which provided for their impressment practically assume this. There is no recital in them that impressment is contrary to the liberty of the subject; and . . . they would have contained such a recital, if Parliament had thought the practice illegal.” 4 Holdsworth, History of English Law 329. “[T]he compulsion of men to go beyond or upon the sea, or otherwise imprisoning them, or compelling men to take prest money, or otherwise imprison them hath been, I Confess, a practice long in use.” 1 Hale, Pleas of the Crown 678. And, for a thorough contemporary review of the law, see Rex v. Broadfoot, Foster, Crown Cases 154 (Recorder's Court, Bristol 1743). Mr. Recorder (later Mr. Justice) Foster admitted that he knew “of no Statute now in force, which directly and in express Terms impowereth the Crown to press Mariners into the Service. And admitting that the Prerogative is grounded on immemorial Usage, I know of no Necessity for any such Statute.” Id. at 168. Authority to impress was usually conveyed by Admiralty warrant issued pursuant to Orders in Council. Id. at 154–155. No warrant in the name of Panton, or Captain Caldwell of the Rose has been found. Since the Crown did not urge the warrant as a basis for Panton's actions, there may have been none.
3. “An act for the encouragement of the trade to America” (1707). The emphasis is JA's. Quotation marks supplied.
4. JA omits: “from such ship of war belonging to her Majesty at any time after the fourteenth day of February, one thousand seven hundred and seven.”
5. Dudley Ryder (1691–1756) was attorney general of England, 1737–1754; John Strange (1691–1754) was solicitor general, 1737–1742. DNB. In 1740, they signed a joint opinion: “We have perused the several clauses in the American Act, and by comparing the several clauses together, it seems to us, that the Act is not now in force, but expired at the end of the war.” Chalmers, Opinions 232. See also Clark, “The Impressment of Seamen in the American Colonies,” in Essays in Colonial History Presented to Charles McLean Andrews 198, 212 (New Haven, 1931). In 1716, Sir Edward Northey, the attorney general, had given an identical opinion. Chalmers, Opinions 232.
6. JA omits: “for the further encouragement of her Majesty's ships, and private ships of war, the annoying and diminishing the wealth and power of her Majesty's enemies in those parts, and for the encrease of shipping and of seamen for these and other services.”
7. These sections concern prize procedure.
8. §14 concerns privateers.
9. § 19 relaxes “during the continuance of this present war, and no longer,” the requirement of the Navigation Act, 12 Charles 2, c. 18, §1 (1660), that privateers and trading ships must have a British master and a crew three-fourths British.
10. §21 relaxes “during the continuance of the present war” the requirement of the Navigation Act, 12 Car. 2, c. 18, §1 (1660), that all British ships be British-built.
11. §20 concerns naturalization of foreign seamen serving in British ships.
12. 2 Domat, Civil Law 638. Quotation marks supplied in this and following citations by JA.
13. JA omits: “Now those bounds may be observ'd with respect to the manner, the time and the cause.”
14. Wood, New Institute of the Civil Law 270. JA omits: “for you are bound to fly if it may be without danger. Neither is such flight ignominious even in a Soldier.”
15. Justinian, Codex, bk. 9, tit. 16, “§2. Of those who defend their own safety. He who, when in danger of his life, kills his aggressor or anyone else, should have no fear of prosecution on this account. “§3. When anyone kills another who attacks him with a sword, he should not be considered a homicide, for the reason that the defender of his own life is not held to have committed an offense. “§4. If (as you state) you have killed a robber, there is no doubt that it will be decided that you have lawfully killed him who had the intention of depriving you of life.” See 15 Scott, Civil Law 29–30.
The editors have translated the material following “Liceat” as follows:
“It is lawful (46) to kill with impunity one who attacks by night in the fields, or blockades the highways, and lies in ambush for passersby, even if he be a soldier. For indeed it is doubly better to attack, than for an injury suffered to be healed, and to seek vengeance.
“Note 46. He is not a murderer who, in peril of his life, kills an attacker, nor ought anyone to wait for the first blow, because it might be irreparable.”
16. Andreas Gail, Practicarum observationum tam ad processum judiciarum praesertim imperialis camerae quam causarum decisiones pertinentium 503–506 (Cologne, 1721). The editors' translation follows; passages omitted by JA, except omitted citations, appear in brackets:
Corporal punishment of homicide never takes place except in the case of voluntary homicide, when the homicide is perpetrated by design, deliberately, and also with malicious intent. A genuine and express evil intent ought to appear [in such a case, for the punishment of the Lex Corneliae on murder to apply]. And this is always true—to such an extent that even gross fault is not equated to evil intent. [And this is the first extension of this original rule. Secondly, it is extended so that it may apply to statutes imposing capital punishment for homicide, which statutes receive an interpretation at common law. Therefore, they are to be understood to concern homicide committed with evil intent. Hence it is considered the rule in offenses requiring evil intent, that in the absence of evil intent an offense is not committed, at least for purposes of corporal or ordinary punishment.] Evil intent, [moreover,] is not regularly presumed. Therefore he who alleges evil intent ought to prove it [since one is clearly presumed to be lacking in evil intent until the contrary be proved]. For nature lacks evil intent from its origins, [and as its origins are, so its later development is presumed to be. Moreover, evil intent is proved by various circumstances—by place, time, type of weapons, violence itself. And evil intent is regularly presumed from an illegal act—when someone does an illicit thing by that fact alone he is judged to be of evil intent.] From this first rule, that plainly an ordinary penalty in homicide demands evil intent, many unique things which are becoming matters of practice can be inferred. And the first of these is that homicide which has been committed with the excuse of guiltless self-defense is not punishable: for consider the case where a person is provoked and defends himself with the excuse of guiltless self-defense and kills the aggressor—such a murderer ought not to be punished but fully absolved, and this is confirmed on three grounds: First, because defense belongs to natural law and is permitted by every legal system, [which we share with dumb animals.] Secondly, because if the aggressor is the provoker, he is considered slain by his own hand and not by another [and consequently the provoked party is not judged to be of evil intent]; thirdly, because the person killing does not perpetrate an evil deed in defense of himself, since it is lawful to meet force with force, and where there is no offense, then there should be no punishment.
And the rule of common opinion is that a person who has been attacked is presumed to do everything in his own defense and not for revenge: necessity rules out the presumption of evil intent. The reason is that necessary defense is allowed by all law—even the divine—and is without sin. Moreover, defense is considered reasonable if with the excuse of guiltless self-defense, when a person could not defend himself from mishap in any way other [than in the manner by which he defends himself, as, for example, if, having been placed in peril of his life, he defends himself in the best way that he can, the one who challenged him is not slain unjustly]. Moreover, someone is presumed to have been placed in a position of peril when he is attacked by another man who has arms in hand and his sword unsheathed by this very fact, that fear of weapons puts anyone in such a position.
[Therefore, in order to obtain absolution or withdrawal of the accusation of the homicide committed, the person provoked ought to plead clearly the two most important items, namely the provocation and the necessary defense, and prove them by way of purgation and innocence.]
But what if once provoked he goes beyond the manner of guiltless self-defense and slays the attacker who is in flight? Would he then have to be punished by the ordinary punishment of the Lex Corneliae [concerning murderers]? Certainly not— rather, he who has exceeded reason ought to be punished by the decision of a judge in a manner other than that laid down by the law. The reason is that, as stated a while ago, evil intent and the intent to kill are not presumed to exist in the person provoked, nor is an eagerness for revenge presumed, but rather the need for defense. Nor is he even bound to flee, if flight would bring him in danger of his life: for a person provoked, just as one moved by intense vexation, does not have complete possession of his faculty of understanding: unexpected dread of impending danger removes correct judgment and prudent deliberation: and therefore the commentators say that the man provoked does not have scales in his hand to measure blows and wounds.
[Wherefore it is relevant, that when it is a matter of excusing wrongs, a principle —and not a conclusion—is sought.] Therefore the provoked person ought to be punished for that excess, not as a person of evil intent (since the previous provocation excuses him from evil intent) but as one guilty through fault [(since he exceeded the reasonable limits of guiltless self-defense)].
Moreover, defense is likewise favored, as even where a third party, for example, a friend to the provoked man, is excused from the usual punishment if he intercedes and slays the attacker.
17. Gail, Practicarum observationum 509. The editors' translation follows; passages omitted by JA, except omitted citations, appear in brackets:
Sixthly, it is inferred that homicide committed in the heat of anger is not to be punished in the ordinary way because inquiry must be made as to wrath which has been provoked, when someone is provoked to anger by another man because of damaging language: for in that case he is thus excused from the ordinary punishment. [And it is necessary to investigate what was the nature of this proneness to anger which has deprived the wrongdoer of reason: for angry men are wholly upset in the mind and lack the use of reason and know not how to speak and cannot use their senses, and have so much trouble speaking that they are consequently presumed to lack evil intent, and the will to inflict harm arises from an excessive proneness to anger, which an armed wrath, so to speak, feeds.] Wherefore it is relevant, as stated above, that a man who has been spurred by intense vexation is not in full possession of his understanding. [Further, it is most difficult to control righteous vexation of the mind.]
18. Robertus Maranta, Praxis, sive de ordine judiciorum . . . vulgo speculum aureum et lumen advocatorum 51 (Cologne, 1614). The editors' translation follows; passages omitted by JA, except omitted citations, appear in brackets:
This is evident, because homicide perpetrated by fault is said to be an offense which the law does not cover and is punished with discretionary penalties. Whenever a married man slays the wife he has caught in an act of adultery, he is not given the death penalty but another milder corporal punishment; and this is because this sort of homicide is said to have been committed through fault, but not with evil intent, since it occurred in a situation in which it was difficult to control righteous indignation. [For in his guilty frame of mind there was an element missing due to the justification, and so he is punished more mildly than the man with a guilty frame of mind.] Therefore, since it appears from the aforesaid that a homicide perpetrated through fault is to be punished by a penalty that is discretionary and out of the ordinary course, it necessarily follows that a judge cannot impose the death penalty, which is the ordinary punishment [for in his discretionary judgments a judge can never impose a punishment like an ordinary punishment for a similar wrong].
19. Rex v. Oneby, 2 Ld. Raym. 1485, 1496, 92 Eng. Rep. 465, 472 (K.B. 1727). Held: Killing after aroused passions have had reasonable time to cool is murder.
20. See text at note 40140 below.
21. JA made this point at somewhat greater length, citing the authorities in notes 15–20115–120 above, in a footnote to the published version of his argument in the trial of the British soldiers. See No. 64, note 41218. He also used this argument again before a Special Court of Admiralty in Rex v. Nickerson, No. 57.
27. Reg. v. Mawgridge, Kelyng 119, 128, 84 Eng. Rep. 1107, 1111 (Q.B. 1706).
28. The Protector v. Buckner, Style 467, 82 Eng. Rep. 867 (U.B. 1655), cited in Reg. v. Mawgridge, Kelyng 136, 84 Eng. Rep. at 1114. Held: Stabbing upon provocation of false imprisonment is not within the Statute of Stabbings, I Jac. 1, c. 8 (1603), and hence the prisoner is entitled to clergy.
29. JA omits: “or call for Aid or Assistance.”
30. Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1706).
31. Rex v. Hugget, Kelyng 59, 84 Eng. Rep. 1082 (Newgate Gaol Delivery 1666). Held: Killing while attempting to rescue man impressed without a warrant is manslaughter.
32. Reg. v. Tooley et al., 2 Ld. Raym. 1296, 92 Eng. Rep. 349; sub nom. The Case of the Reforming Constables, Holt K.B. 485, 90 Eng. Rep. 1167 (Q.B. 1709). Constable arrests a woman without a warrant; prisoners attempt to rescue her; constable calls deceased to aid him; one of the prisoners kills deceased. Held: Manslaughter, because constable was not acting within his authority, and the prisoners had sufficient provocation to attack him. “[I]f one be imprisoned upon an unlawful authority it is a sufficient provocation to all people out of compassion; much more where it is done under a colour of justice, and where the liberty of the subject is invaded it is a provocation to all the subjects of England.” 2 Ld. Raym. at 1301, 92 Eng. Rep. at 352; see also Holt K.B. at 489, 90 Eng. Rep. at 1169.
33. Reg. v. Mawgridge, Holt K.B. 484, 90 Eng. Rep. 1167 (Q.B. 1706).
34. Foster, Crown Cases, discusses, at 312 and 315–316, Reg. v. Tooley, note 32132 above; at 292, Reg. v. Stedman (unreported) (Old Bailey 1704), in which one who killed a woman after she struck his face with an iron patten was held guilty of manslaughter only, because of the “smart” of his wound; at 296, Reg. v. Mawgridge, note 27127 above. At this point in the MS appears the narrative set out in text following note 150 above.
35. Foster, Crown Cases 288–289; JA sets out the text at note 42142 below.
36. See text at notes 15–21115–121 above. The dagger appears in the MS, and refers to the text at notes 39–44139–144 below.
37. An accurate condensation of 28 Hen. 8, c. 15, §2 (1536).
38. 4 Geo. 1, c. 11, §7 (1717). See text at notes 14–1552–53 above.
39. Rex v. Oneby, note 19119 above.
40. Barrington, Observations upon the Statutes 54 note (k). The text appears in JA's next paragraph. JA used this and the passage from Lord Raymond in a footnote to the published text of his argument in the trial of the British soldiers. See No. 64, note 41218. Quotation marks have been supplied here and below.
41. See note 19119 above.
42. Foster, Crown Cases 288–289. JA has paraphrased Foster's opening: “I therefore think those Judges who have taken general Verdicts of Acquittal in plain Cases of Death per Infortunium . . . have not been to Blame. They have, to say the worst, deviated from antient Practice in Favour of Innocence.”
43. Foster cites, among other examples, 11 & 12 Will. 3, c. 7 (1700) and 4 Geo. 1, c. 11 (1717).

Docno: ADMS-05-02-02-0008-0003-0001

Editorial Note

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.
{ 336 }
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
{ 337 }
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 younot 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
2. Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3. See also, Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3; 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300. The latter adds the details, presumably from Hutchinson's personal knowledge of the case, that the Nickerson schooner was first boarded “by a large boat, rowed with twelve oars, which came from an armed schooner lying to at a distance.” Doane also figures in Doane v. Gage, No. 43, and appears briefly in the epic of the Lusanna, No. 58. Fitch's account of the evidence (Doc. II) suggests that Nickerson testified that his purpose in going on the voyage was “to get his Cloaths.”
3. That is, the taffrail, the upper part of a ship's stern, sometimes a railing there. The spelling in the text is a corruption of the 18th-century usage, “tafferel” which is derived from the Dutch taferell, a panel. OED. JA, in a later account, referred to this as “some thing, the technical term for which, in naval architecture, I have forgotten.” JA to David Sewall, 29 Jan. 1811, 9 JA, Works 627, 628.
4. Hutchinson described this as “the money which the crew had received at Boston, for the earnings of their vessel the year preceding,” assigning robbery as the motive. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301–302. According to one contemporary account, the vessel was returning home after discharging its catch from a fishing voyage at Boston. Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3. Compare JA's comment that “A sum of money of no great amount had been shipped on board by one of the other men, which was not found.” JA to David Sewall, note 3 above.
5. Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3.
6. Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3. See also, 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300–301; Rowe, Letters and Diary 236.
8. Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3.
9. Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3; Rowe, Letters and Diary 236.
10. In the Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3, the Lively was reported as having returned “yesterday.” Rowe, Letters and Diary 236, reports her return “from a Cruize into Nantasket Roads,” with “No further account of any Pirate,” on 28 November. The discrepancy may be accounted for by the possibility that the vessel made more than one “Cruize.”
11. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300, 302. Hutchinson was attacked in the Massachusetts Spy, 17 Dec. 1772, p. 2, cols. 1–2, for his aversion to “fair trials by jury.” Nickerson's arraignment (note 12 below) was reported in the same issue, at p. 3, col. 2.
12. Boston Evening-Post, 21 Dec. 1772, p. 2, col. 3. According to Rowe, the court at this session consisted of “The Governour, Lieut Govr, The Secretary of the Province, The Admirall The Judge of Admiralty, Mr. Fisher the Collector of Salem, Mr. Waldo, The Collector of Falmouth Casco Bay.” Rowe, Letters and Diary 237. Hutchinson's version is that “the counsel for the prisoner moving for further time, and urging that intelligence might probably be obtained of a pirate schooner having been in the bay, and it appearing that a large armed schooner sailed from Boston, bound to the coast of Guinea, at the same time with the fishing vessel, the court thought proper to adjourn the trial for six months.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301.
13. Massachusetts Spy, 3 June 1773, p. 2, col. 4. As to the Gaspee, see p. 104, note 24, above.
14. Massachusetts Gazette, 17 June 1773, p. 3, col. 2; Massachusetts Spy, 17 June 1773, p. 3, col. 2. It was later reported that Nickerson had been examined “on the report of money being found, suspected to be hidden by him.” Boston Gazette, 5 July 1773, p. 3, col. 1.
15. Massachusetts Gazette, 15 July 1773, p. 3, col. 1.
16. JA to David Sewall, 29 Jan. 1811, 9 JA, Works 627, 628; compare 3 JA, Diary and Autobiography297: “He requested my Assistance and it was given.” The note which Nickerson gave Adams for his fees was dated 30 July 1773. See text at note 25 below.
17. Boston Gazette, 9 Aug. 1773, p. 1, col. 2.
18. Boston Gazette, 9 Aug. 1773, p. I, col. 2.
19. The foregoing paragraph is drawn from the account in Boston Gazette, 9 Aug. 1773, p. 1, cols. 2–3. A broadside published after the trial related certain further “circumstances” purportedly establishing Nickerson's innocence. Worthington C. Ford, comp., Broadsides, Ballads &c. Printed in Massachusetts, 1639–1800, 75 MHS, Colls., No. 1678 (1922). The enduring appeal of Nickerson's adventures is attested by Albert Smelco's play, “The Ansell Nickerson Story,” performed at Chatham, Mass., in Aug. 1962. Boston Globe, 3 Aug. 1962, p. 8.
20. Boston Gazette, 9 Aug. 1773, p. 1, col. 3.
21. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301. For the opinion of the Advocate, Attorney, and Solicitor General, 5 Nov. 1761, upon which Hutchinson apparently relied, see Chalmers, Opinions 525–527.
22. JA to David Sewall, 29 Jan. 1811, 9 JA, Works 627, 628; see also 3 JA, Diary and Autobiography297: “I know not to this day what Judgement to form of his Guilt or Innocence.”
23. JA to David Sewall, 29 Jan. 1811, 9 JA, Works 627, 628.
25. Adams Papers, Microfilms, Reel No. 344.

Docno: ADMS-05-02-02-0008-0003-0002

Author: Adams, John
Date: 1773-07

Adams' Notes of Authorities1

Special Court of Admiralty, Boston, July 1773
Ansell Nickersons Case.
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
{ 342 }
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
{ 343 }
Civil Law.
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
{ 344 }
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
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. Docketed by JA: “Ansell Nickerson's Case. Evidence, Confession, Judication,” the three issues with which these notes deal. Intervals of space indicate space breaks in the MS. JA's outline of his own argument is appended to these notes in the MS, but it is here printed separately (Doc. III), so that the arguments can be presented in the order in which they were presumably given. See note 187 below.
2. The passage appears in Wood, Institute of the Laws of England 671 (London, 9th edn., 1763). JA seems to have cited the wrong page inadvertently. This is the only edition in which there are more than 663 pages, 1 Sweet and Maxwell, Legal Bibliography 38. Quotation marks have been supplied.
3. 12 Viner, Abridgment 95, tit. Evidence, plea A. b. 23, no. 3. Quotation marks supplied. For King v. Pain, see note 833 below. The “note” in the text appears in the margin in Viner; it is a quotation, with very minor discrepancies, from Buncombe, Tryals per Pais 209 (London, 3d edn., 1700). The same passage appears at p. 363 in Volume 2 of the 1766 edition of the latter work, cited below by JA, note 732.
4. 12 Viner, Abridgment 96, tit. Evidence, plea A. b. 23, no. 4. Quotation marks supplied. The passage reads in full, “Confession is the worst sort of Evidence that is, if there be no Proof of a Transaction or Dealing, or at least a Probability of Dealing, between them as in the Principal Case there was, the one being a Sailor, the other a Master of a Ship. Per Holt. 7 Mod. 42. Mich, 1 Ann. B.R. Anon.”
5. 12 Viner, Abridgment 96, tit. Evidence, plea A. b. 23, no. 6. Quotation marks supplied. JA has omitted the citation: “St. Tr. 1 Vol. 169. 780.—2 Vol. 575.”
6. 12 Bacon, Abridgment 313, tit. Evidence, L. Quotation marks supplied. JA has omitted the preceding paragraph, which states that the defendant's confession, whether taken according to law by a justice of the peace or magistrate, “or spoken in private Discourse,” may be used against him. Both this passage and the sentence quoted in the text appear in substantially similar form in 2 Hawkins, Pleas of the Crown 429, which is cited in the margin in Bacon. See notes 934, 490, below.
7. 2 Duncombe, Trials per Pais 427 (8th edn., 1766). The passage contains several more or less accurate quotations from 12 Viner, Abridgment 95–96, including those cited in notes 328 and 429 above.
8. Rex v. Paine, 5 Mod. 163, 165, 167, 87 Eng. Rep. 584, 585, 586 (K.B. 1695). Quotation marks supplied. See note 328 above. In an information for publishing a criminal libel the defendant had confessed that he had written the libel at another's dictation and then had delivered it to one Brereton by mistake. There was also the evidence of the defendant's servant that the libel had been repeated in a room in the presence of a Dr. Hoyle after the defendant had brought in a writing. The jury gave a special verdict raising the question of the defendant's guilt as composer of the libel, but finding him not guilty of publication. The passage quoted from p. 165 is apparently part of the argument of counsel to the jury that that portion of the confession which indicated delivery by mistake must also be taken into account and read to show that there was no publication. The passage from p. 167 is part of the opinion of the court, conceding that if the confession were the only evidence on the question of publication, the defendant was not guilty. The court went on to state, however, that the servant's testimony was also evidence of publication, if it could be established that the paper brought into the room was the libel. The court adjourned without giving judgment.
9. 2 Hawkins, Pleas of the Crown 429, §5. Quotation marks supplied. The passage is cited by Bacon, note 631 above.
10. 2 Hale, Pleas of the Crown 290. Quotation marks supplied.
11. That is, 4 Blackstone, Commentaries *352: “Fourthly, all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” Blackstone then recites the passage quoted from Hale, note 1035 above.
12. That is, Justinian, Digest, bk. 29, tit. 5, law I, §24, cited by Hale, note 1035 above, a passage construing a senatorial decree which inflicted torture upon slaves of a master who met a violent death. Quotation marks have been supplied. See 6 Scott, Civil Law 320: “Unless it is established that a man has been killed, his slaves ought not to be tortured.”
13. 2 Domat, Civil Law 667, a passage stating the general rule that a confession is to be taken as proof of the fact confessed unless the contrary be established affirmatively. “And this Rule has only one Exception in Accusations of Capital Crimes, where it is not enough that the Party who is accused confesses a Crime which is not proved; but other Proofs are necessary for putting him to Death besides his own Confession, which might be an Effect of Melancholy or Despair, or proceed from some other Cause than the Force of Truth.”
14. Wood, New Institute of the Civil Law 310. Quotation marks supplied. Compare No. 46, note 42119.
15. Justinian, Codex, bk. 4, tit. 19, §25. Quotation marks supplied. See No. 46, notes 47–48124–125.
16. Maranta, Speculum Aureum, pars IV, Distinctio I, §77. Quoted, No. 56, note 18118.
17. Gail, Practicarum Observationum 503, quoted in No. 56, note 16116, from which the passage here was probably extracted. Quotation marks have been supplied.
18. Gail, Practicarum Observationum 509. See No. 56, note 17117.
19. Presumably a reference to Gregor Kolb, Examen Juris Canonici, juxta V. libros decretalium (Vienna, 1728), a work which JA owned. See Catalogue of JA's Library 136.
20. Maranta, Speculum Aureum 313. “114” is presumably an inadvertence for p. 314. See text preceding note 490 below. In JA's copy at the Boston Public Library two passages on these pages are marked. The first states that, even though the defendant's confession contains matter favorable to himself, this must be proved, as in a confession that he killed in self-defense. The second adds the important qualification that on the basis of such a confession the defendant cannot be condemned to death, as for a homicide, but must be given the lesser penalty of banishment.
21. Johannes Calvinus, Lexicon Juridicum Juris Caesarei Simul, et Canonici, tits., Confiteri, Capitulum (Geneva, 1622). It has not been possible to determine exactly the passages under these heads to which JA referred. The title “Capitulum” seems to contain nothing relevant. Under “Confiteri” there are several general statements concerning confessions which JA may have intended. The citation is omitted in the notes from which he argued (Doc. III).
22. Apparently a reference to Institutiones Juris Canonici 118 (Basel, ed. J. P. Lancelottus, 1695), bound with separate paging as part of Corpus Juris Canonici (Basel, ed. J. P. Lancelottus, 1696). At the cited page appears bk. 3, tit. 14, “De Probationibus,” a title beginning with several sections concerning proof by confession of the parties.
23. Wood, New Institute of the Civil Law 316, §2, set out in No. 46, notes 29–30106–107.
24. Justinian, Digest, bk. 22, tit. 5, §12, set out in No. 46, at note 31108.
25. Justinian, Codex, bk. 4, tit. 20, §9, §1, set out in No. 46, at note 32109.
26. Reg. v. Quelch et als., 8 State Trials 205, 213 (Boston, Ct. of Adm., 1704). Quelch and his crew had taken over a privateer when the master died, and had preyed on friendly shipping in the South Atlantic. The cited page contains a series of objections to the evidence by Quelch's counsel. JA's use of the passage in his argument (Doc. III) indicates that he here referred to an argument that the civil-law rules for accrediting witnesses should apply. This contention, like all the others made for Quelch, was rejected by the court. Quelch and several of his accomplices were ultimately condemned and executed on 30 June 1704.
27. Rex v. Bonnet, 6 State Trials 156 (S.C. Vice Adm., 1718). See No. 56, at note 1654.
28. See 28 Hen. 8, c. 15 (1536), set out in No. 56, at notes 2–540–43; 11 & 12 Will. 3, c. 7 (1700), set out, id., at notes 2–544–49 (see also note 257 below); 4 Geo. 1, c. 11, §7 (1717), set out, id., at notes 14–1552–53.
29. See Foster, Crown Cases 288–289, indicating that there is no crime of manslaughter in Admiralty, set out in No. 56, at notes 42–43142–143.
30. See Barrington, Observations upon the Statutes 54, stating that there is no crime of manslaughter under the civil law, set out in No. 56, at note 40140.

Docno: ADMS-05-02-02-0008-0003-0003

Author: Adams, John
DateRange: 1773-08-03 - 1773-08-04

Adams' Minutes of the Argument1

Special Court of Admiralty, Boston, 3–4 August 1773
Fitch. Not charged with Murder. But as the Killing constitutes Pyracy.
{ 345 }
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
{ 346 }
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
{ 347 }
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.
{ 348 }
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
{ 349 }
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
2. Domat. 618.27
1. Ld. Bacon. 251.28
2. <Hawk.> Hale P.C. 289.29
{ 350 }
Ayliff 447. 8.30
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The notes have been dated from a contemporary newspaper account. See text at notes 17, 18, above.
2. 11 & 12 Will. 3, c. 7, §9 (1700):
“And be it further enacted, That if any commander or master of any ship, or any seaman or mariner, shall, in any place where the admiral hath jurisdiction, betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammunition, goods, or merchandizes, or yield them up voluntarily to any pirate, or shall bring any seducing messages from any pirate, enemy, or rebel, or consult, combine, or confederate with, or attempt or endeavour to corrupt any commander, master, officer, or mariner, to yield up or run away with any ship, goods, or merchandizes, or turn pirate, or go over to pirates, or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defense of his ship and goods committed to his trust, or that shall confine his master, or make, or endeavour to make a revolt in the ship, shall be adjudged, deemed, and taken to be a pirate, felon, and robber, and being convicted thereof, according to the directions of this act, shall have and suffer pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer.”
3. 25 Edw. 3, stat. 5, c. 2 (1350), defined petit treason as “When a servant slayeth his master, or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth faith and obedience.” Fitch may here have been quoting or paraphrasing 1 Hawkins, Pleas of the Crown 98, c. 37, Of Piracy, §2: “It is said that before 25 Ed. 3. this Offense [Piracy] was punished at Common Law as Petit Treason, if committed by a Subject, and as Felony, if committed by a Foreigner: However it seems agreed, that after that Statute by which all Treason is confined to the Particulars therein set down, it was cognizable only by the Civil Law.” Compare 4 Blackstone, Commentaries *71.
4. 1 Domat, Civil Law 413, bk. 3, tit. 6, Of Proofs, and Presumptions, and of an Oath: “We call that a Proof which convinces the Mind of a Truth.”
5. 1 Domat, Civil Law 414:
“But if it [the identity of the murderer of one killed alone on the highway at night] is discovered, it will be only by Proofs that may be drawn from circumstances which shall happen to be linked together with this Crime, and which will depend on Events that have happened by accident, such as the casual rencounter of some Witnesses, and such signs and tokens as there may happen to be, conjectures, and presumptions.”
6. 1 Domat, Civil Law 415:
“It may be gathered from these Remarks, that there are two sorts of Presumptions: Some of which are drawn by a necessary consequence from a Principle that is certain; and when these sorts of Presumptions are so strong, that one may gather from them the certainty of the Fact that is to be proved, without leaving any room for doubt, we give them the name of Proofs, because they have the same effect, and do establish the truth of the Fact which was in dispute. The other Presumptions are all those which form only Conjectures, without certainty; whether it be that they are drawn only from an uncertain Foundation, or that the consequence which is drawn from a certain Truth is not very sure.
“It is because of the difference between these two sorts of Presumptions, that the Laws have appointed some of them to have the force of Proofs, and have not left the Judges at liberty to consider them only as bare Conjectures, because in effect these sorts of Presumptions are such, that one sees in them a necessary connexion between the truth of the Fact that is to be proved, and the certainty of the Facts from whence it follows.”
7. 1 Domat, Civil Law 430, bk. 3, tit. 6, Of Presumptions, §4: “Presumptions are of two kinds, some of them are so strong, that they amount to a certainty, and are held as Proofs, even in Criminal Matters. And others are only conjectures which leave some doubt.”
8. 2 Domat, Civil Law 666, presumably a reference to a passage on the cited page describing the four ways of proving facts in court: “The Confession of the Party, the Testimony of Persons who know the Fact, the Evidence which arises from Deeds and Writings, and the Knowledge of certain Facts, which are linked in such a Manner with that whereof we search the Truth, that one may gather the said Truth from the Connection there is between the Fact in question and those of which the Truth is proved.” Immediately following in the text is the passage cited by JA, note 1338 above, and cited by him in argument, text following note 490 below.
9. Wood, New Institute of the Civil Law 302 (London, 4th edn., 1730): “Proof is either (plena) a full proof, as by two Witnesses or a publick Instrument; or (semiplena) an half proof, as one Witness or a private Writing; so that two half proofs being joined together (though of a different nature) make one full proof.” Note that the edition cited here and in note 1065 below by Fitch is that of 1730. JA's citations to this work in this case and elsewhere are to the first edition of 1704.
10. Wood, New Institute of the Civil Law 305 (London, 4th edn., 1730):
“But all Confessions are not to be esteemed a discovery of the Truth, if there are no other corroborating Circumstances. For sometimes Fear or a weariness of Life, or some other Reason hath induced Men to make Confessions of those Things which they were never guilty of. . . . But when the Confession is regular, and admitted by the other Party, he ought to admit the whole as it is qualified, and when it is extended to other matters which are done at the same time; unless there is a presumption against that part. As when one confesses that he kill'd Titius in his own defense; the killing shall stand by it self as confessed, and the qualification must be proved, because the Law presumes design, and throws the proof upon the Criminal.”
The phrase between dashes in the text is presumably JA's insertion.
11. This is apparently a reference to the language of Wood, New Institute of the Civil Law 305–306, which follows the passage quoted in note 1065 above:
“But if the Sentences are distinct, where there is no presumption, the qualification afterwards comes too late, and infers that the Acts are done at different Times.” Then follows an example in which “The Libel charges that you receive 100 l. of me. You answer, That you did receive 100 l. of me which I ow'd to you, and no other Sum; this is but one Sentence, and cannot be divided; for with one Breath I do as it were absolutely deny the Charge. But where the Sentences are divided, there the Confession shall be divided, and part accepted and part rejected. As if you had answer'd, That you did borrow the 100 l. but that you have since repaid it: Or that I have promised not to demand it 'till seven years were past. The latter part of this answer must be proved, else you will be condemned.”
JA may have noted the argument for his own later use, since the statement would seem to cut against the Crown.
12. Thus in MS, but quite possibly an inadvertence for “sailed.”
13. That is, nine months between the date of the incident in Nov. 1772 and the time of the hearing in Aug. 1773.
14. Probably JA's reminder to himself that Nickerson's signal of distress was not consistent with a criminal intent.
15. Probably a reference to an example given in 1 Domat, Civil Law 415, following the passage quoted, note 661 above, which recounts Henri II's edict of 1556 that if a woman was brought to childbed without witnesses and there was no subsequent christening or public burial, there should be a presumption that she had murdered the child.
16. That is, “Manor” ? The reading and allusion are unclear. This may be a reference to a presumption as to the title to chattels remaining on the land at the time of conveyance.
17. Probably a witness, but not identified.
18. Probably a reference to Capt. Joseph Doane, who found the schooner (note 2 above), although the title, “Coll.” suggests Col. Elisha Doane, one of JA's wealthy clients. See Nos. 52, 58.
19. Wood, New Institute of the Civil Law 276 (London, 4th edn., 1730): “Homicide with Deliberation is when one kills another upon a premeditated design, and in cold Blood. If the design cannot be proved directly, it may be learnt from circumstances, as when there was Enmity between the Parties, providing Arms, lying in wait, &c.”
20. Hawkins, Pleas of the Crown. The page reference cannot be determined from the context.
21. See the materials quoted in JA's notes, notes 3–528–30 above.
22. Justinian, Digest, bk. 42, tit. 2, De Confessis. A series of eight laws, most of which deal with the confession of civil obligations, stating the general proposition that confession of a debt is the equivalent of a judgment for that amount. Quincy may have been drawing an analogy to the provisions that this rule does not apply where the amount of the debt or the nature of property in question is uncertain. Id., L. 6, L. 8.
23. Justinian, Codex, bk. 7, tit. 59, De Confessis, §1: “Confessis in jure pro judicatis haberi placet. Quare sine causa desideras recedi a confessione tua, cum et solvere cogeris.” See 14 Scott, Civil Law 202: “It has been decided that confessions made in court have the effect of judgments, therefore you have no right to revoke your confession, as you will be compelled to make payment.” A better translation of the first clause might be: “confessions in law have the effect of judgments.”
24. 1 Domat, Civil Law 430:
“Presumptions are consequences drawn from a fact that is known, to serve for the discovery of the truth of a fact that is uncertain, and which one seeks to prove. . . . Thus in a Criminal Affair, if a Man has been killed, and it is not known by whom, and if it be discovered that he had a little while before a quarrel with another person, who had threatened to kill him, one draws from this known fact of the quarrel and threatning, a Presumption that he who had thus threatned him, may have been the Author of the Murder.”
25. 2 Domat, Civil Law 668:
“There is likewise a fourth Kind of Proofs which are called Presumptions, that is to say, Consequences which are drawn from certain Facts that are known and proved, whereby to guess at or infer the Certainty of the Fact in dispute, and of which the said known Facts are Marks and Signs; and these sorts of Proofs are called Presumptions, because they do not demonstrate the Fact it self which is to be proved, but prove the Truth of other Fact, the knowledge whereof discovers, points out, and gives room to conjecture and presume the Fact in question, because of the natural and necessary Connection between the Facts that are known, and those which we want to know the Truth of.”
26. That is, 2 Domat, Civil Law 670. The precise passage intended cannot be determined from context.
27. 2 Domat, Civil Law 618, a passage stating that the three bases for differentiating between crimes are (1) the degree of heinousness; (2) the motive, whether premeditation, passion, or imprudence; and (3) the circumstances in which the crime is committed.
28. Probably a reference to Francis Bacon, Works, 1:251 (London, 1750), a section of the eighth book of his De Augmentis Scientiarum, entitled “De exemplis et usu eorum,” which deals with “examples, from which justice is to be derived when the law is deficient,” that is, examples of human experience not common enough to have been reduced to custom or law. See 5 Bacon, Works 92–94 (London, transl. and ed. Spedding, Ellis, Heath, 1877).
29. 2 Hale, Pleas of the Crown 289. Presumably the reference is to this passage: “In some cases presumptive evidences go far to prove a person guilty, tho there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished, than one innocent person should die.” Hale then gives the example of a man executed for theft of a horse, only to have the true thief later confess that he had given the innocent victim the horse to walk just before his apprehension. There follows on p. 290 the passage quoted by JA, note 1035 above, and cited by him in argument, text following note 490 below.
30. Presumably John Ayliffe, Parergon Juris Canonici Anglicani 447, 448 (London, 2d edn., 1734), a long passage on the sufficiency of proof, containing such statements as, “In the Business of Proof, a Judge ought first to have a great Regard to the Probability thereof” (p. 447), and, “As in all Criminal Causes Evidence or Notoriety of Fact is full Proof, so likewise in such Causes all manner of Proofs ought to be clearer than the Light of the Sun at Noon-day.” (p. 448). That this work was available in Boston appears from the Harvard Law School's copy, which bears the signatures of Jeremy Gridley, Samuel Sewall, and Christopher Gore. For another use of Ayliffe by JA, see p. 104 above.

Docno: ADMS-05-02-02-0008-0003-0004

Author: Adams, John
DateRange: 1773-08-04 - 1773-08-05

Adams' Notes for His Argument1

Special Court of Admiralty, Boston, 4–5 August 1773
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.
{ 351 }
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.
1. In JA's hand, following, after an interval of space, his notes of authorities, printed as Doc. I. See note 26 above. Only authorities not cited by JA in Doc. I have been annotated in Doc. III. The notes have been dated from a contemporary newspaper account. See text at notes 18, 19, above.
2. That is, the information or libel containing the articles of the charge against Nickerson. No copy of this document has been found.
3. That is, into both the common law, and the civil law, which was traditionally used in Admiralty. Compare No. 56. In the English practice, the jury and other features of the common law were made applicable by statute, but certain civil-law rules, such as the lack of the death penalty for manslaughter, applied. See No. 56, Doc. VI; p. 275, notes 2, 3, above. The argument seems to be JA's means of getting around the decision of the Boston Special Court of Admiralty in Quelch's Case (1704), that common-law rules controlled the admissibility of evidence. See note 51 above. For his difficulties with the same problem in the Vice Admiralty Court, see No. 46.
4. Presumably a reference to the statutes 1 & 2 Phil. & Mary, c. 13 (1554), and 2 & 3 Phil. & Mary, c. 10 (1555), which provided that justices of the peace should examine persons accused of manslaughter or felony, either when admitting them to bail or upon commitment, and should certify the examination to the next court of general gaol delivery. According to 2 Hawkins, Pleas of the Crown 429 (cited by JA to another point, note 934 above), confessions taken on such occasions could be given in evidence, as could those “taken by the Common Law upon an Examination before a Secretary of State, or other Magistrates for Treason, or other Crimes, not within those Statutes, or in Discourse with private Persons.” Compare note 631 above. JA's point seems to be that Nickerson's examinations before Edward Bacon and the Admiralty Commissioners (text at notes 6–9 above) met none of these requirements.

Docno: ADMS-05-02-02-0009-0001-0001

Editorial Note

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
{ 354 }
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
{ 355 }
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
{ 361 }
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
1. For a concise history of the English prize jurisdiction, see 1 Holdsworth, History of English Law 561–568.
2. 6 Anne, c. 37 (1708).
3. Andrews, “Introduction,” Records of the Vice Admiralty of Rhode Island 41 (Washington, ed. D. S. Towle, 1936). For an account of the development of the jurisdiction, see id. at 35–42. For a contemporary account, including a copy of the warrant issued for trial of prizes in 1756, see Anthony Stokes, A View of the Constitution of the British Colonies 275–281 (London, 1783). Forms used in the West Indies appear in id. at 276–357. For some of the jurisdictional and other problems presented by appeals from the Vice Admiralty courts in prize cases, see Smith, Appeals to the Privy Council 186–187, 518–520.
4. For the first years of the Continental Navy, see Howard I. Chapelle, History of the American Navy 52–79 (N.Y., 1949). As to Washington's fleet, see William Bell Clark, George Washington's Navy 1–98 (Baton Rouge, 1960). For the colonial navies and privateers, see Gardiner W. Allen, A Naval History of the American Revolution, 1:42–52, 132–152 (Boston and N.Y., 1913). As to JA's interest, see 2 JA, Diary and Autobiography 201–202 note, 221–222 note.
5. For the Massachusetts court, see Act of 1 Nov. 1775, 5 A&R 436, 438–441, as amended, Act of 13 April 1776, 5 A&R 474. The jurisdiction was later extended to certain traditional maritime causes such as seamen's wages, salvage, and disputes between part-owners, as well as to offenses against a law prohibiting the exportation of naval stores, but the jury was retained. Act of 29 April 1778, 5 A&R 806; Act of 19 Feb. 1779, 5 A&R 930. For a summary of legislation in other states, see Davis, “Federal Courts Prior to the Adoption of the Constitution,” 131 U.S., Appendix xx—xxii (1889); Hampton L. Carson, The Supreme Court of the United States 44–47 (Phila., 1892). For the work of these courts, which did much to pass on the Admiralty tradition to the courts of the United States, see Wiener, “Notes on the Rhode Island Admiralty, 1727–1790,” 46 Harv. L. Rev. 44, 59–62 (1932); Hough, Reports 243–254; Ubbelohde, Vice Admiralty Courts 195–201. For JA's later comments on the Massachusetts act, see his letter to Elbridge Gerry, 14 April 1813, 10 JA, Works 37.
6. For the Congressional Resolve of 25 Nov. 1775, and a further resolve of 23 March 1776, see note 3108 below. For the work of the special committees and the resolve creating the Standing Committee, see Davis, “Federal Courts,” 131 U.S., Appendix xxii—xxiii; 7 JCC 75. For the cases which came before special committees, see McAroy v. The Thistle, note 41146 below; National Archives, The Revolutionary War Prize Cases 26–27 (pamphlet accompanying Microcopy No. 162, Washington, 1954). It has been suggested that the idea of trial by committee may have come from the example of the British practice under which appeals from the Vice Admiralty courts in cases of prize went to Lords Commissioners for hearing such appeals, a committee of the Privy Council. Jameson, “The Predecessor of the Supreme Court,” in J. Franklin Jameson, ed., Essays in the Constitutional History of the United States 13–16 (Boston and N.Y., 1889). It should be noted, however, that after 1762 this committee included the judges of the common-law courts. See 1 Holdsworth, History of English Law 565 note.
7. JA was appointed to the Standing Committee on 12 March 1777, when three members were added to the original five. 7 JCC 172. On 8 May 1777, when the old committee was discharged as being “too numerous,” he was one of a new committee of five, “they or any three of them to hear and determine upon appeals brought to Congress.” Id. at 337. In Oct. he was the only one reappointed to a new committee constituted because “a number of the members appointed to hear and determine appeals are absent.” Resolve of 13 Oct. 1777, 9 id. at 800. For his relief from the Committee, see Resolution of 17 Nov. 1777, 9 id. at 936. During this important year, he also presided over the constantly busy Board of War and Ordnance. There is no reference to the work of the Standing Committee in his diary, which is extremely fragmentary for this period, or in his Autobiography. See 2 JA, Diary and Autobiography  262 note; 3 id. at 447 note.
8. The papers are preserved in DNA: RG 267. They have been filmed as National Archives Microcopy No. 162, “The Revolutionary War Prize Cases: Records of the Court of Appeals in Cases of Capture, 1776–1787,” and will be hereinafter cited as DNA Microcopy 162, Case— (numbered documents within a case file will be cited as No. –). The five cases on which JA definitely sat were Newman v. The Sherburne,DNA Microcopy 162, Case 10 (see note 9 below); Alsop v. Ruttenbergh, id., Case 11 (see note 42147 below); The Industry, id., Case 14; Palmer v. Hussey, id., Case 17; The Greenwich, id., Case 19. The appeal papers are incomplete for White v. Sloop Polly and Cargo, id., Case 12; The Leghorn, id., Case 13; The Montgomery v. The Minerva, id., Case 15; Hopkins v. Derby, id., Case 6; and Fowkes v. The Roseanna, id., Case 20 (JA was familiar with the last-named case, decided just before his departure from Congress. See note 29179 below). His name does not appear in the file of Pierce v. The Phoenix,DNA Microcopy 162, Case 8, but he had judged another phase of this case in The Greenwich, cited above.
9. For the style of the “Court,” see the decree in The Industry,DNA Microcopy 162, Case 14. The matters of procedure noted in the text appear in all of the cases having appeal papers which are cited in note 8 above. The attitude of Congress toward the court appears in the report of the Marine Committee on a petition apparently transmitted through JA by his former client, Timothy Folger (No. 45), in behalf of the crew of a Nantucket whaler condemned as prize. The court in affirming the condemnation had awarded wages to the crew, as provided by resolve of Congress (note 3108 below), but Folger sought a share of the profits for them, claiming this to be the custom of whalers. The Marine Committee reported adversely, on the grounds that the petition raised questions of “construction of the promulgated resolutions of Congress, which make part of the code of laws of maritime war, which laws ought to be construed and applied by the courts of admiralty and commissioners of appeals in their judicial capacity, and not by Congress” and that since the case had already received “a judicial determination before the said courts” in which the issue might have been raised, it was improper for Congress to act upon it. The resolution was concurred in by Congress on 23 May 1777. See Newman v. The Sherburne,DNA Microcopy 162, Case 10; 8 JCC 383–384. The states were not so ready to recognize these decrees. See The Active, note 78 below.
10. As to JA as Chief Justice, see vol. 1:xci above. For evaluation of the court's role, see sources cited in notes 5, 6, above. The continuity between the Court of Commissioners and the Supreme Court is perhaps best illustrated by the fact that James Wilson sat as a Commissioner with JA in many of the cases cited in note 8 above, then argued before the Court of Appeals in Cases of Capture (see note 84 below), and finally took his seat as one of the first members of the United States Supreme Court (see note 95 below).
11. JA was granted leave on 7 Nov. 1777, left York, Penna., on the 11th, and arrived at Braintree on 27 November. See 9 JCC 880; 2 JA, Diary and Autobiography267–269. An account of his reasons, which included the desire to obtain some of the legal business created by the prize courts, appears in 4 id. at 1.
12. For another JA case involving Doane, see No. 52. Doane has been described as the second richest man in the Province. See Samuel E. Morison, Maritime History of Massachusetts 25 (Boston, 1921). Compare 2 JA, Diary and Autobiography61.
13. See Doane v. Treadwell and Penhallow; the Brig Susannah,DNA Microcopy 162, Case 30. The spelling “Lusanna” has been adopted in the present work for reasons stated in note 77 below.
14. For restrictions on Massachusetts and the Port of Boston passed in 1774, see No. 53, text at notes 1, 2. New England was further restricted by the statute, 15 Geo. 3, c. 10 (1775), which provided that after 1 July 1775 enumerated goods produced in New England could not be exported and that other goods could be shipped only to Great Britain or the British West Indies. No imports were to be permitted except from Great Britain and, in certain cases, Ireland. The trade of New Jersey, Pennsylvania, Maryland, South Carolina, and Virginia was similarly restricted by 15 Geo. 3, c. 18 (1775). It was not until the Act of 16 Geo. 3, c. 5 (1776), note 23173 below, that all colonial trade was embargoed. See generally, Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 538–540 (N.Y., 1918).
15. See Doane to Lane, Son & Fraser, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 107; Deposition of Joseph Doane, undated, 1778, id., No. 133; Deposition of John Greenough, 19 Jan. 1778, id., No. 127; Deposition of David Greenough, 20 Feb. 1778, id., No. 136. An account furnished Doane in April 1781 by Lane, Son & Fraser, showed that, as of 30 April 1775, Doane's balance was £3690 19s. 6d. and that in April 1779, 34 bundles of whale fins in their hands sold for £530 17s. id. MHi: David S. Greenough Papers. For this and all other references to the Greenough Papers the editors are indebted to Mrs. Katherine A. Kellock of Washington, D.C., who has been of great assistance in the case of the Lusanna, not only by uncovering sources which might otherwise have been overlooked, but by supplying a chronology of the case, which was a valuable aid in the preparation of this editorial note.
16. Joseph Doane, who figured also in Doane v. Gage, No. 43, and Rex v. Nickerson, No. 57, had been master of the Lusanna on her whaling voyage and supervised her loading for the voyage to London. See his deposition, note 15 above. The Lusanna, a square-sterned brigantine of seventy tons, originally built as a sloop in 1760, had been purchased by Elisha Doane from his father's heirs and rebuilt in 1773. Ibid.; Lusanna's Register, 28 June 1773, DNA Microcopy 162, Case 30, No. 62. For Bourne's recantation on 27 Sept. 1774 of his participation in the address of the bar to Governor Hutchinson at the latter's departure from the Province in June 1774, see Deposition of Nathaniel Freeman, 18 Aug. 1778, DNA Microcopy 162, Case 30, No. 122. Bourne (1746–1806), Harvard 1764, had been admitted an attorney in the Superior Court in 1767, and a barrister in 1772. Min. Bks. 82, 97, SCJ. He suffered no permanent political ill effects from his involvement in the affair of the Lusanna, since he sat in the General Court in 1782–1785 and 1788–1790, was a member of the Ratification Convention in 1788, served in Congress from 1791 to 1795, and was appointed a Massachusetts Common Pleas judge in 1799. See Biog. Dir. Cong.
17. See “Invoice of the Brigantine Lusanna's Cargo to London,” undated, DNA Microcopy 162, Case 30, No. 103. Bills of lading and other shipping documents appear in id., Nos. 90–99. For the certificates of bond which she gave on clearance, see id., Nos. 63, 64, 66. Compare Deposition of Matthew Wood, 28 Jan. 1778, id., No. 118. As to the Continental Association, see note 16121 below.
18. Doane to Bourne, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 92; Doane to Lane, Son & Fraser, 29 Aug. 1775, id., No. 107.
19. Bourne to Doane, Halifax, 29 Sept. 1775, DNA Microcopy 162, Case 30, No. 76.
20. Bourne to Doane, Halifax, 29 Sept. 1775, DNA Microcopy 162, Case 30, No. 76.
21. Bourne to Lane, Son & Fraser, Halifax, 3 Nov. 1775, note 20125 below; Deposition of Richard Baxter, 9 Jan. 1778, DNA Microcopy 162, Case 30, No. 148.
22. Bourne to Lane, Son & Fraser, Halifax, 31 Dec. 1775, note 21126 below. As to the condition, see Deposition of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, No. 118.
23. Doane to Bourne, 12 Feb. 1776, DNA Microcopy 162, Case 30, No. 113.
24. Bourne to Doane, London, 6 May 1776, DNA Microcopy 162, Case 30, No. 77. Deposition of Richard Baxter, 9 Jan. 1778, id., No. 148. On 11 April 1776, Samuel Curwen, chronicler of the doings of loyalists in London, reported that he had dined in company with “a Mr. Bourne, lately arrived from Halifax . . . a grave solid man.” Curwen, Journal and Letters 52–53 (London, 1842). The editors are indebted to Mrs. Kellock for this reference.
25. Doane wanted £45 per ton for body oil and a proportionate price for head matter. The sale in Oct. was at £43 for body oil. Lane, Son & Fraser to Bourne, 1 Oct. 1776, PCC No. 44, fol. 311. See Doane to Lane, Son & Fraser, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 107.
26. Bourne to Doane, 12 Oct. 1776, note 23128 below; same to same, 18 Sept. 1776, DNA Microcopy 162, Case 30, No. 78.
27. See Deposition of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, No. 118; Lane, Son & Fraser to Bourne, 1 Oct. 1776, note 9114 below; Deposition of Lot Lewis, 4 Dec. 1777, note 117 below; Lusanna's register, 3 Aug. 1776, note 5110 below; Deposition of David Smith, 13 July 1778, DNA Microcopy 162, Case 30, No. 135. Doane had suggested the change in register in a letter of 12 Feb. 1776. Id., No. 113. The Lusanna's account with Lane, Son & Fraser, furnished by the latter in 1781, and a letter of Doane's widow to them, 14 Nov. 1783, confirm that government stores were a part of the cargo out, and indicate that on the voyage the vessel called at Barcelona and took on freight at Malaga. MHi:Greenough Papers; see note 9114 below.
28. Doane to Lane, Son & Fraser, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 107; Bourne to Doane, 18 Sept. 1776, id., No. 78; see also same to same, 12 Oct. 1776, id., No. 29.
29. Note 14 above. The papers in the action are in DNA Microcopy 162, Case 30, Nos. 37–58. See note 25130 below. See also Deposition of Jacob Williams, 31 Aug. 1778, id., No. 140. The claimant had sought an appeal to the Privy Council, but withdrew it upon advice of counsel. Opinion of Daniel Leonard, 4 Aug. 1777, PRO, Treas. 1:528. The Industry herself was reported destroyed in March 1776 when the British left Boston. Bourne to Doane, 18 Sept. 1776, DNA Microcopy 162, Case 30, No. 78. For some earlier problems of her new owners, see PRO, Treas. 1:513, fol. 266, et seq. Notes of the contents of the PRO documents were furnished to the editors by Mrs. Kellock.
30. See Deposition of John McFarland, In the Exchequer, 28 Jan. 1777, DNA Microcopy 162, Case 30, No. 58; Doane to Bourne, 12 Feb. 1776, id., No. 113; Doane's power of attorney to Bourne, 1 Oct. 1775, id.,No. 61; Certificate of Edward Winslow, Deputy Collector, Plymouth, 1 Feb. 1776, id.,No. 57. It was later suggested that the claim had been made with Doane's assent and that he could have entered Boston to appear. Opinion of Daniel Leonard, 4 Aug. 1777, PRO, Treas. 1:528.
31. Opinion of Daniel Leonard, 4 Aug. 1777, PRO, Treas. 1:528, with endorsement of Richard Reeve, secretary to the Commissioners, 27 Aug. 1777, indicating that on the basis of the opinion Bourne's memorial would not be acted upon further.
32. Bourne's Memorial to Lords of Treasury, 30 Jan. 1777, in note 14119 below. Extracts from Bourne's journal in note 8158 below.
33. Deposition of Captain David Smith, 13 July 1778, DNA Microcopy 162, Case 30, No. 135. See also Deposition of William Claghorn, 20 Aug. 1778, id., No. 149. Doane had suggested a somewhat similar plan in his instructions to Bourne on 29 Aug. 1775, note 18 above. See Deposition of David S. Greenough, 20 Feb. 1778, DNA Microcopy 162, Case 30, No. 136.
34. See Invoice and Bill of Lading, Lane, Son & Fraser to Bourne, 10 June 1777, note 6111 below; Certificate of bond for enumerated goods, London, 26 July 1777, DNA Microcopy 162, Case 30, No. 32; Deposition of Thomas Casey, 3 Dec. 1777, note 8113 below; Deposition of Lot Lewis, note 12117 below.
35. For the first two invoices consigned to Bourne, see notes 6111, 7112, below (a complete inventory of the £2000 invoice appears in SF 104193). For the others, see DNA Microcopy 162, Case 30, Nos. 16–27. See also notes 11116, 34139, below.
36. See Depositions of Thomas and Mary Casey, 3 Dec. 1777, notes 8113, 10115, below; Deposition of Edmond Coffin, 2 Sept. 1778, DNA Microcopy 162, Case 30, No. 121.
37. See note 27132 below. As to Shepherd's problems, see Deposition of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, No. 146.
38. Edward Crosby to William Spry, 16 July 1777, note 13118 below. See also William Cochran to Thomas Cochran & Co., 23 Aug. 1777, DNA Microcopy 162, Case 30, No. 35.
39. See note 10160 below. The oil had apparently not been sold at this date, since Lane, Son & Fraser's account in 1781 shows that it was not until Sept. 1778 that £3378 10s. 2d. was credited to Doane as proceeds of its sale, giving him a balance, with interest, of £7732 18s. 6d. No drafts against the letters of credit were ever charged to this account. MHi: Greenough Papers.
40. Bourne to Messrs. Thomas Cochran & Co., undated, note 11116 below.
41. See Deposition of Thomas Casey, 3 Dec. 1777, note 8113 below; Deposition of Lot Lewis, 4 Dec. 1777, note 12117 below; Libel, New Hampshire Court Maritime, 11 Nov. 1777, note 2107 below. The McClary, one of New Hampshire's leading privateers, was herself captured and her crew imprisoned at Halifax in 1778. Richard F. Upton, Revolutionary New-Hampshire 110, 112 (Hanover, N.H., 1936). See Library of Congress, Naval Records of the American Revolution 381 (Washington, 1906). The editors are indebted to Mrs. Kellock for the latter reference.
42. See note 2107 below.
43. The owners were John Penhallow, Joshua Wentworth, Ammi R. Cutter, Nathaniel Folsom, Samuel Sherburne, Thomas Martin, Moses Woodward, Neil Mclntire, George Turner, Richard Champney, Robert Furniss, Jacob Treadwell, Thomas Dalling, Daniel Sherburne, and Keith Spence. See A Statement of the Cause of the M'Clary Owners, and Doane & Doane's Administrators from its Commencement in 1777, to its Close in the Supreme-Court of the United States, Feb. 1795 5 (Portsmouth, 1795). Their counsel is noted by JA only as “Sewall,” and no other reference to his name has been found. This is either Jonathan M. Sewall (1748–1808), a Portsmouth lawyer who was also register of the Court Maritime, or David Sewall of York, Maine, about to take his seat on the Massachusetts Superior Court, who was present in company with JA at General Whipple's on 18 December. See Bell, Bench and Bar of New Hampshire 629–630; 2 Stiles, Literary Diary 238. Since “Sewall” appears twice in JA's minutes (see text at note 2107, and following note 12117, below), it is possible that both Sewalls argued for the libelants. The second appearance, however, could reflect a recess and a resumption of note-taking by JA. See also note 88 below.
44. Paine had also had experience on prize appeals in Congress. See notes 41146, 42148, below. He had apparently already told Bourne's emissary that he could not attend the trial when Bourne wrote him requesting “Council in a Cause which nearly affects my interest, (if not Character),” and asking that Paine reconsider. He went on: “If Sir you are previously engaged, I can say no more. If you are under a retaining fee I can only say, I am unfortunate; if you are at liberty and so engaged, that you cannot attend me and Mr. Doane at the first tryal, and it so happens, that an appeal is claimed by either party, I must beg your assistance to support Mr. Whipple and Mr. Lowell, the first of which I have engaged, and the last I have this day dispatched an agent to engage.” Bourne to Paine, 17 Nov. 1777, MHi: Paine Papers. The editors are indebted to Mrs. Kellock for this reference. Paine did attend the General Court. See Paine Diary, 4–15 Dec. 1777, and his “Draft of an Address of the General Court to the People—on the Act to restrain the Circulation of the State Currency,” 12–15 Dec. 1777, Paine Papers. Whipple (1743–1813), Harvard 1766, came to Portsmouth from his native Rhode Island and was not related to William Whipple, the New Hampshire delegate to Congress. See Whipple to JA, 26 April 1790, Adams Papers. Bell, Bench and Bar of New Hampshire 739–741. In the weeks before the trial he was present at the taking of several depositions in Portsmouth. See notes 8113, 10115, 12117, below.
45. See Doc. I, below; note 11 above.
46. See note 67 below.
47. The three claims appear in DNA Microcopy 162, Case 30, Nos. 3, 4, 5.
48. See Doc. I. As to the rules on interested witnesses, see Gilbert, Evidence 122–134; No. 2.
49. See published notice of monition, dated 14 Nov. 1777, in Portsmouth Freeman's Journal, 29 Nov. 1777, p. 2, cols. 2–3.
51. JA to AA, 15 Dec. 1777, 2 Adams Family Correspondence 374. For JA's conversation on the evenings of 17 and 18 Dec., ranging from politics to law and history, see 2 Stiles, Literary Diary 237–238.
52. JA to AA, 15 Dec. 1777, 2 Adams Family Correspondence 374. Brackett (1733–1802), Harvard 1752, A.M. 1755, M.D. (Hon.) 1792, after first studying theology, took up medicine and became a successful practitioner at Portsmouth. After the Revolution he was an officer of the Massachusetts and New Hampshire Medical Societies and donated $1500 toward a Harvard professorship in natural history and botany. He was appointed Judge of Admiralty at the beginning of the Revolution and held the post until the creation of the United States District Court in 1789. The sources consulted do not reveal the basis upon which he was given this position. He was active in the patriot cause, serving on the Committee of Safety, but perhaps his education and intellectual attainments were the qualifications which recommended him for the appointment. See Nathaniel Adams, Annals of Portsmouth 321–324 (Portsmouth, 1825); J. Farmer and J. B. Moore, eds., Collections, Historical and Miscellaneous: and Monthly Literary Journal, 2:17–21 (Concord, N.H., 1823); MH:Archives. Brackett may have been JA's old friend, but he was undoubtedly a current acquaintance of at least 10 of the McClary owners, who, with him, were members of Ezra Stiles' congregation. See 2 Stiles, Literary Diary 171–173; see also note 43 above.
53. There were also apparently at least two witnesses actually present at the trial. See note 18123 below. The New Hampshire statute establishing the court required that all papers found aboard ship be filed with the court and permitted witnesses to testify either by deposition or in person. Act of 3 July 1776, 4 Laws of New Hampshire 25, 28, 31 (Bristol, N.H., ed. H. H. Metcalf, 1916).
54. See Interrogatories, with minute of court's ruling, undated, DNA Microcopy 162, Case 30, No. 84. The “Instructions to Privateers,” contained in a resolve of Congress, dated 3 April 1776, followed Admiralty practice in requiring the submission to the court of interrogatories taken from the master and principal persons aboard the captured vessel. 4 JCC 253–254. There was no comparable provision in the New Hampshire act, note 53 above.
55. They asserted a third ground, that the goods were forfeit as being of British manufacture, but it was not seriously pressed and seems to have had little weight. See note 2107 below.
56. See Decree, New Hampshire Court Maritime, 16 Dec. 1777, PCC No. 44, fols. 263–264.
57. See note 17122, text following note 19169, below.
58. See note 4109 below.
59. The New Hampshire act, note 4109below, makes liable to forfeiture vessels “carrying supplies . . . or whose Masters or Supercargoes shall have design of carrying such supplies.” The resolve of Congress in question, note 3108 below, deals with “all vessels to whomsoever belonging employed,” in carrying supplies, which might be construed to include only voyages to which the owner was privy.
60. The jury was Perkin Ayers, David Page, Ebenezer Neal, Benjamin Marston, James Neal, Samuel Rand, Joseph Philbrook, Richard Brown, David Lock, Thomas Johnston, Joshua Brackett, and William Simpson. Ayers was appointed foreman by the Court. DNA: RG 267, National Archives Microcopy No. 214, “Appellate Case Files of the Supreme Court of the United States” [hereinafter DNA Microcopy 214], Case 6, fols. 50–51. The relationship of the Joshua Brackett on the jury and Judge Brackett is not known.
61. See Decree, New Hampshire Court Maritime, 16 Dec. 1777, note 56 above.
62. See text and notes 41–43146–148, ||text and note||29179, below.
63. See text at notes 26–28176–178 below. The rejection of the interrogatories, note 54 above, is another example of state refusal to accept federal directives.
66. As to JA's return to Braintree and acceptance of the appointment, see 2 Adams Family Correspondence 375 note. For his departure for France, see 2 JA, Diary and Autobiography269–271. He was retained in at least one other prize case after his return, giving advice to the privateer's agent, probably during his stay in New-buryport en route to Portsmouth in December (note 50 above). The trial at the Feb. 1778 Superior Court went on without him. See Samuel Tufts to JA, 6 Jan. 1778, 2 Adams Family Correspondence 377–378. JA was also forced to forgo an appearance in one of the Kennebec Company's numerous land cases set for the Feb. term. See John Lowell to AA, 22 Feb. 1778, id. at 393–394;——to AA, 23 Feb. 1778, id. at 394–395. The Company on 14 Jan. 1778 voted to give him a fee of $100 in this cause. 3 Kennebec Purchase Records 132, MeHi.
67. See Decree of New Hampshire Superior Court, Sept. Term. 1778, DNA Microcopy 162, Case 30, No. 165. See also Paine's notes of both trials in the Paine Law Notes. Paine's diary shows that the March trial lasted from 11 to 13 March; on the 14th “the jury came in and informed the Court they could not agree. The papers taken from them and the Cause Continued.” The second trial lasted from 2 to 4 September. Paine Diary.
68. Interrogatories to Bourne, Sept. 1778, DNA Microcopy 162, Case 30, No. 158.
69. Depositions of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, Nos. 118, 146.
70. See note 17167 below.
71. Depositions covering all of the foregoing points are to be found in DNA Microcopy 162, Case 30, passim,
72. DNA Microcopy 162, Case 30, Nos. 120, 124, 126, 130, 131, 132, 142, 143, 144, 147, 150, 152.
73. DNA Microcopy 162, Case 30, Nos. 125, 154.
74. DNA Microcopy 162, Case 30, Nos. 121, 123, 134, 146, 151, 162.
75. Decree of New Hampshire Superior Court, Sept. Term 1778, note 67 above. See Bourne to Paine, 10 Sept. 1778, Paine Papers.
76. Precept and return, 8 Oct. 1778, PCC No. 44, fol. 273. Costs were to be paid out of the proceeds by virtue of the New Hampshire act of 3 July 1776, 4 Laws of New Hampshire 25, 29.
77. Petition of 14 Sept. 1778, DNA Microcopy, 162, Case 30, No. 166; 12 JCC 992. See also Claim of Appeal to Congress, New Hampshire Superior Court, Sept. Term 1778, PCC No. 44, fol. 317. According to the June 1780 docket of the Court of Appeals, the case was “lodged” on 28 Nov. 1778. DNA Microcopy 162, Reel 15. Doane's vessel was called the “Susannah” in the contemporary printed congressional Journal for 9 Oct. 1778. 4 Journals of Congress 586 (Phila., 1779). This seems to have been the first appearance of an understandable copyist's or printer's error for “Lusanna.” The spelling “Susannah” was adopted elsewhere in the Journals and in Alexander Dallas' reports of two later cases involving the vessel (notes 89, 90, below), but “Lusanna” is the form used in virtually all other printed and manuscript sources and is undoubtedly correct. See 4 JA, Diary and Autobiography2.
78. The matter was settled in favor of the jurisdiction in United States v. Peters, 5 Cranch (9 U.S.) 115 (1809). This decision, which in effect asserted the power of the United States courts over the legislatures of the states, met initial violent resistance in Pennsylvania, but was ultimately accepted. See Charles Warren, The Supreme Court in United States History, 1:374–388 (Boston, 1922). For details of the case, see Davis, “Federal Courts Prior to the Adoption of the Constitution,” 131 U.S. Appendix xxix—xxxiv (1889); Jameson, “Predecessor of the Supreme Court,” 17–23; The Case of the Sloop Active (Phila., 1809); Richard Peters, The Whole Proceedings in the Case of Olmstead and others v. Rittenhouse's Executrices (Phila., 1809). For the proceedings in Congress, see DNA Microcopy 162, Case 39.
79. See Commissioners' order of 5 May 1779, that appellants give appellees notice of hearing on 21 June, DNA Microcopy 162, Case 30; Plea, 21 June 1779, and Replication, Ibid.; Memorial of Penhallow et al., 20 Oct. 1783, 6 Jefferson, Papers, ed. Boyd, 448, 449. That the insurance payment was a ground of attack may be deduced from the presence in the file of the deposition of Thomas Casey, taken at the request of Penhallow on 24 May 1779 for use in the hearing on 21 June. Casey, who had already given evidence as one of the Lusanna's passengers (note 8113 below), testified that William Cochran, Halifax merchant just returned from London, had told him on 10 Jan. 1779 that the insurance had been paid, and that this was the general opinion in Halifax. DNA Microcopy 162, Case 30.
80. See copy of Commissioners' order, 26 June 1779, DNA Microcopy 162, Case 30. New Hampshire on 18 Nov. 1779 passed an act in response to the Active resolution which allowed appeals in cases where the property of friendly foreign nationals was involved. 4 Laws of New Hampshire 238. A copy of this statute was duly filed with the Commissioners on 27 Dec. 1779. DNA Microcopy 162, Case 30. According to the certificate of the Clerk of the Court of Appeals, dated 24 Jan. 1784, however, in the minutes of the Commissioners (and presumably in those of the Court of Appeals), “there do not appear to have been any further proceedings in the said Cause untill the Eleventh Day of September 1783.” PCC No. 44, fol. 230.
81. 16 JCC 61–64. See sources cited in note 6 above, and Hogan, “The Court of Appeals in Cases of Capture,” 33 Oregon L. Rev. 95 (1954). Ubbelohde, Vice Admiralty Courts 201, states that establishment of the court without a jury was a recognition of the failure of that institution in the state courts of Admiralty. However, the Court of Appeals was a continuation of the old Commissioners, who had sat without a jury. Most of the state courts continued to employ a jury, so that creation of the Court of Appeals was merely a phase in the conflict between federal Admiralty courts and state civil juries which continued into the 19th century.
82. 17 JCC 459. As to the judges, see Davis, “Federal Courts Prior to the Constitution,” 131 U.S. Appendix xxvi.
83. Articles of Confederation, Article IX: “The united States in Congress assembled shall have the sole and exclusive right and power of . . . establishing courts for receiving and determining finally appeals in all cases of capture.” The form of the Articles had been agreed on in Congress on 15 Nov. 1777, and on 9 July 1778 they were ratified by eight states, including New Hampshire. By 5 May 1779 they had been ratified by four more states, leaving only Maryland, which could not be persuaded to join until 1 March 1781. See Davis, “Federal Courts Prior to the Constitution,” 131 U.S. Appendix xii—xiii.
84. As to the owners' objections, see Memorial of Penhallow et al., 20 Oct. 1783, 6 Jefferson, Papers, ed. Boyd, 448, 450. They claimed that they had sought to obtain from England more evidence on the question of the insurance being paid, but the short notice had prevented them. Ibid. Counsel at the hearing included “Mr. Rush” (doubtless Jacob, brother of Benjamin) and William Lewis for the appellants, and Jonathan D. Sergeant and Jared Ingersoll for the appellees. James Wilson argued also, presumably for the appellants, since he appeared last, following Ingersoll. It is difficult to determine his position from the very brief minutes, however. Principal reliance seems to have been placed on two authorities which indicate a specialized approach to the questions of prize: R. Lee, Treatise of Captures in War (London, 1759); Emmerich de Vattel, Law of Nations (London, 1760). See Minutes, 13 Sept. 1783, DNA Microcopy 162, Case 30. No authorities appear in Paine's notes of the proceedings before the New Hampshire Superior Court, note 67 above. The jurisdictional argument was held on 11 Sept. 1783 and the case “put off,” apparently until the 13th, after the decision. See Minutes, 11 Sept. 1783, DNA Microcopy 162, Reel 15.
85. Record and Decree, Court of Appeals in Cases of Capture, 17 Sept. 1783, DNA Microcopy 162, Case 30. Lowell had been appointed to the court on 5 Dec. 1782. 23 JCC 862; Davis, “Federal Courts Prior to the Constitution,” 131 U.S. Appendix xxvi.
86. Most of the papers submitted on the petition are in PCC No. 44, fols. 186–324. The selection, being ex parte, is rather one-sided on the merits, including none of the depositions favorable to the claimants. For the Penhallow memorial of 20 Oct. 1783, Sullivan's letter of 6 Jan. 1784, Jefferson's report of 8 Jan. 1784, and an account of the proceedings in Congress, see 6 Jefferson, Papers, ed. Boyd, 447–455. See also Bourne's memorial, 6 May 1784, supporting his position, which was apparently unneeded. PCC No. 44, fols. 234–235.
87. Alfred A. Doane, The Doane Family 137 (Boston, 1902). Letters of Administration granted to his widow Anna and son Isaiah at Barnstable, 26 Feb. 1783, are in DNA Microcopy 214, Case 6, fols. 95–96.
88. See Statement of the M'Clary Owners 29–30; Charles Storer to JA, Boston, 7 April 1786, Adams Papers. See Doane's Administrators v. Penhallow, et al., 1 Dall. (1 U.S.) 218, 219 (Penna. C.P., 1787). The Massachusetts suit is undoubtedly Isaiah Doane et al. v. Thomas Martin et al., SJC Rec. 1785, fol. 22; Docket Bk. 4, SJC Suffolk, Feb. 1786, C–78, an action of trover brought by the Doane Administrators against George Wentworth and the McClary owners at the Suffolk Inferior Court in June 1784. In April 1785, seven of the owners appeared, and on a plea of not guilty entered by Christopher Gore, obtained a verdict. In the Supreme Judicial Court the appellants discontinued. The disputed decree does not appear in the file. SF 104193. If it was in fact David Sewall who was of counsel for the libelants at Portsmouth in 1777 (note 43 above), it is curious that he did not disqualify himself in the Supreme Judicial Court as did John Lowell in the Court of Appeal (note 85 above), and James Wilson later in the Supreme Court (note 95 below).
89. Doane's Administrators v. Penhallow et al., 1 Dall. (1 U.S.) 218 (Pa. C.P., 1787). Although they did not press the point on this occasion, the McClary owners had finally succeeded in getting convincing evidence of the payment of the insurance. On 17 Feb. 1787 at Portsmouth, John Lane, the “Son” of Lane, Son & Fraser, had given his deposition in perpetuam rei memoriam, testifying that insurance for a loss to an American privateer had been paid to his firm and credited to Doane. Statement of the M'Clary Owners 12–13.
90. See Penhallow et al. v. Doane's Administrators, 3 Dall. (3 U.S.) 54, 62–63. A copy of the libel appears in DNA Microcopy 214, Case 6.
91. Act of 8 May 1792, c. 36, §11, 1 Stat. 275, 278–279. The same statute also provided for the deposit of the records of the Court of Appeals in Cases of Capture in the office of the clerk of the Supreme Court of the United States, who was authorized to give copies of the records, which were to “have like faith and credit as all other proceedings of the said court.” Id., §11, at 279. See also Act of 2 March 1793, c. 22, §1, 1 Stat. 333, providing that where the Judge of a District Court was disqualified, the Supreme Court Justice assigned to the Circuit Court for that District was to sit alone. The McClary partisans later intimated that the first of these statutes, at least, had been passed especially for the Penhallow case. Statement of the M'Clary Owners 31. Their suspicion is perhaps justified by the fact that Shearjashub Bourne, now acting as agent for the Doane interests, was a member of Congress from 1791 to 1795. See note 16 above. The McClary party was also able to effect a statutory change when, on the appeal to the Supreme Court, Justice Cushing demanded a bond in the amount of the full damages. Statement of the M'Clary Owners 56. By the Act of 12 Dec. 1794, c. 3, 1 Stat. 404, it was provided that security in appeals need be taken only in the amount of costs.
92. See 3 Dall. (3 U.S.) 63–64, 108–113. The trial court record as certified to the Supreme Court appears in DNA Microcopy 214, Case 6.
93. See writ of error and return, DNA Microcopy 214, Case 6. The minutes of the Court for the argument of this case from 9 to 16 Feb. 1795 are printed in Surrency, ed., “The Minutes of the Supreme Court of the United States, 1789–1806,” 5 Am. Jour. Legal Hist. 375–378 (1961).
94. 3 Dall. (3 U.S.) 64–66. See Surrency, ed., “Minutes of the Supreme Court,” 5 Am. Jour. Legal Hist. 381, 384.
95. 3 Dall. (3 U.S.) 79–120. The opinions are also printed as Dallas reported them in A Report of the Opinions of the Judges in the Important Cause of Pen hallow et al. against Doane's Administrators (Phila., 1795). James Wilson did not participate, presumably because he had been of counsel in the argument before the Court of Appeals, note 84 above. See Surrency, ed., “Minutes of the Supreme Court,” 5 Am. Jour. Legal Hist. 375–378, 381. Cushing, who had had the same issue before him as a state judge, did not exhibit a similar delicacy, but showed that he was unbiased, by reversing his earlier stand. See note 88 above.
96. Iredell strongly intimated that he would have held that Congress had the power, but he found it unnecessary to reach the question. See 3 Dall. (3 U.S.) 92–97. Cushing also did not reach the issue, but his feelings on it are less clear. Id. at 117. At least in later Supreme Court practice, the rule was clear that although the judgment of a divided court affirmed the result in the court below and was binding on the parties, it did not constitute a decision of the legal questions involved. See Etting v. Bank of the United States, 11 Wheat. (24 U.S.) 59, 78 (1826); The Independence, 20 How. (61 U.S.) 255 (1857). Blair's Circuit Court opinion upholding the power of Congress (3 Dall. 108–113) was thus presumably authoritative on this point, although of doubtful weight.
97. 3 Dall. (3 U.S.) 89, 120.
98. For example, Statement of the M'Clary Owners, note 43 above. See also, 1 Warren, Supreme Court 123.
99. See “Invoice of Goods from London taken in Brigg Lusanna in Oct. 1777” [Nov. 1795], MHi:Greenough Papers. This account shows a net loss to the Doanes of $1691.71.
100. See Greenough and Doane to John Lane, 18 May 1804, and Lane to Greenough and Doane, 23 July 1804. MHi: Greenough Papers. Missing documents prevent a complete reconstruction of the litigation. For final disposition of the three suits, see Shoolbred v. Greenough Exrs., U.S.C.C.D. Mass. Docket Bk., Oct. 1801, C–16; Shoolbred v. Bourne, id., April 1802, C–7; Shoolbred v. Greenough et al., id., Oct. 1802, C–5; id., June 1803, C–5.

Docno: ADMS-05-02-02-0009-0001-0002

Author: Bourne, Shearjashub
Recipient: Adams, John
Date: 1777-12-06

Shearjashub Bourne to John Adams1

[salute] Sir

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,
[signed] Shearja. Bourne
I think Sir if you Sett Off for Portsmo. next week a friday, you may reach there on Saturday [night], and if you Come to Boston next Week Call on Coll. Doane at his sons house, and he'll be Ready to proceed with you.
1. RC, Adams Papers, addressed: “Honble. John Adams Esqr. Braintree.” Docketed in an unidentified hand: “S. Bourne Dec. 6th 1777.” The enclosure mentioned in the text has not been found.
2. An inadvertence for James Shepherd, the third claimant. As to the claims, see text at note 47 above.
3. See copy of a bill of sale, 24 Nov. 1777, in which Bourne on receipt of £122 14s. 5d. declared that he did “hereby release to him the said Doane all right title and Interest to” various goods “and all right and title thereto and to all other interest I have on board the brig Lusanna.”PCC No. 44, fol. 315; DNA Microcopy 162, Case 30, No. 85. The goods were identical to those subsequently claimed by Doane. Id., No. 4. The tactic was unsuccessful. See sources in notes 54, 68, 77, above.
4. See note 26131 below.
5. See text at notes 50–51 above.

Docno: ADMS-05-02-02-0009-0001-0003

Author: Adams, John
Date: 1777-12-16

Adams' Minutes of the Trial1

New Hampshire Court Maritime, Portsmouth, 16 December 1777
Penhallow and Treadwell vs. Brig. Lusanna and Cargo.
Mr. Sewall. 3 Causes sett forth.2 Resolve of Congress, 25 Novr. 1775. March 23d. 1776.3
{ 379 }
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
{ 380 }
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
{ 381 }
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.
{ 383 }
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
{ 384 }
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
{ 385 }
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
{ 386 }
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
{ 387 }
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
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
{ 388 }
Bill Jacksons Case.43 Butlers Letter.44
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?
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. The libel of John and Jacob Penhallow, agents for the owners of the McClary, and George Wentworth, agent for the crew (“the captors”), against the Lusanna in the New Hampshire Maritime Court, dated 11 Nov. 1777, alleged that the McClary
“did on or about the 30th day of October last on the high seas within the Jurisdiction of said Court seize and take the said Brigantine Lusanna and bring [her] into Piscataqua harbor, which said Brigantine the Libellants aver was together with the Cargo on board her the property of some Inhabitant or Inhabitants of Great Britain or some subject or subjects of the king of Great Britain other than the Inhabitants of Bermudas and Providence or the Bahama Islands and said Vessel so captured was at the time of her Capture carrying Supplies to the Enemies of the United States of America by means of all which and by virtue of the resolutions of Congress and the acts and resolves of the state of New Hampshire said Vessel Cargo and appurtenances are forfeited.”
The libel prayed process and condemnation and distribution “as the said laws resolves and resolutions direct.” DNA Microcopy 162, Case 30, No. 2. For the Congressional and state laws involved, see notes 3108, 4109, below. None of the copies of the libel used in later phases of the case contains the third “cause sett forth.” See PCC No. 44, fols. 265–266; DNA Microcopy 214, Case 6. Whipple's notes (at note 2152 below) show that it was “That the property on Board was British Manufacture.” This basis for the forfeiture either may have been stricken from the libel on the basis of JA's arguments against it, text at notes 26176–180 below, or Sewall may have tried to argue that the libel as quoted here should be construed to include it. As to the identity of “Mr. Sewall,” see note 43 above.
3. The Resolve of 25 Nov. 1775, a response to George Washington's complaints about the lack of machinery for dealing with captures, was drafted by a committee of which JA was a member. See 3 JCC 357–358; 3 JA, Diary and Autobiography346–349. It provided for the condemnation as prize of enemy military and transport vessels and cargo; set up a requirement that no privateer cruise without a commission from Congress; recommended that the states establish prize courts sitting with juries, and subject to certain venue provisions; provided for an appeal from such courts “in all cases;” and provided for the distribution of proceeds, confirming prior awards by General Washington. 3 JCC 373–375. The provision relied on here, as modified by a Resolution of 19 Dec. 1775, was,
“That all transport vessels in the same [i.e. British] service, having on board any troops, arms, ammunition, cloathing, provisions, or military or naval stores of what kind soever, and all vessels to whomsoever belonging that shall be employed in carrying provisions or other necessaries to the British Army or armies, or navy, that now are or shall hereafter be within any of the United Colonies, or any goods, wares, or merchandizes, for the use of such fleet and army, shall be liable to seizure, and, with their cargoes, shall be confiscated.” Id. at 437.
See Jameson, “The Predecessor of the Supreme Court,” in J. Franklin Jameson, ed., Essays in the Constitutional History of the United States 6–8 (Boston and N.Y., 1889). The Resolution of 23 March 1776, which authorized the fitting out of armed vessels, provided in pertinent part,
“That all ships and other vessels, their tackle, apparel, and furniture, and all goods, wares, and merchandizes, belonging to any inhabitant or inhabitants of Great Britain, taken on the high seas, or between high and low water mark, by any armed vessel fitted out by any private person or persons, and to whom commissions shall be granted, and being libelled and prosecuted in any court erected for the trial of maritime affairs, in any of these colonies, shall be deemed and adjudged to be lawful prize; and [after deducting the wages of the crew of captured merchantmen] shall be condemned to and for the use of the owner or owners, and the officers, marines, and mariners of such armed vessel, according to such rules and proportions as they shall agree on: Provided always, that this resolution shall not extend to any vessel bringing settlers arms, ammunition or warlike stores to and for the use of these colonies, or any of the inhabitants thereof, who are friends to the American cause, or to such warlike stores, or to the effects of such settlers.” 4 JCC 230–231.
Other resolutions provided for the distribution of proceeds of captures made by vessels of the United Colonies, or a single colony, or by land forces. Id. at 231–232. For JA's role in the passage of this resolve, see 2 JA, Diary and Autobiography 233 note 10; 3 id. at 371–375
4. No “June” act or resolve of the New Hampshire legislature has been found which deals with this question. The first reference is thus in all probability to the Act of 3 July 1776, which expressly incorporated the resolve of Congress dated 23 March 1776, note 3108 above, and, perhaps to avoid incorporating the Resolve of 25 Nov. 1775, note 3108 above, with its provision for appeal to Congress, further provided that vessels
“used in supplying the Fleet, or Army, which have been, or shall at any time be employed, against the United Colonies or Employed by the Enemy in any respect, whatsoever; and those Vessels, which have been carrying supplies of any kind to the Enemy, or whose Masters or Super Cargoes, shall have designs of carrying supplies of any kind to the Enemy, or that shall be returning from the Enemy after having carried such Supplies, and shall be found hereafter on the high Seas, and shall be brought into the harbour of Piscataqua, or any place within this Colony, or found within the same,”
should be subject to condemnation, with their appurtenances and cargo. Actions under both provisions were to be brought in a specially created “Court Maritime,” which was to be held in Portsmouth or elsewhere in the county of Rockingham and was to sit with a jury under elaborate provisions made by the act. Appeals lay only to the Superior Court, except where a Continental vessel was involved. Act of 3 July 1776, 4 Laws of New Hampshire 25–32. The New Hampshire Resolve of 5 Sept. 1776 extended the jurisdiction of the Court Maritime to the new definition of belligerent contained in a Congressional resolution of 24 July 1776: “All ships and other vessels, their tackle, apparel and furniture, and all goods, wares and merchandises, belonging to any subject or subjects of the King of Great Britain, except the inhabitants of the Bermudas, and Providence or Bahama island.” 5 JCC 606; see N.H. Resolve of 5 Sept. 1776, PCC No. 44, fol. 258.
5. See a copy of the Lusanna's register, taken out at the Custom House, London, 3 Aug. 1776, on the oath of “Shearjashub Bourne of London Merchant,” that he “of London in Great Britain is at present Owner thereof.” Endorsements dated 27 March and 14 July 1777 show changes of master. PCC No. 44, fols. 275–276; DNA Microcopy 162, Case 30, No. 8.
6. See Invoice, and bill of lading, 10 June 1777, for £2124 worth of assorted merchandize, to be shipped aboard the Lusanna by Lane, Son & Fraser, consigned to Bourne at Halifax. DNA Microcopy 162, Case 30, Nos. 13, 14.
7. The MS reads “Doane,” but this is probably a reference to “Invoice of sundry goods shipped on board the Lusanna for Halifax in Nova Scotia by Shearjashub Bourne, Esqr. marked and numbered as per margin and consigned to Messrs. Thomas Cochran and Co. Merchants there in the absence of said Bourne.” DNA Microcopy 162, Case 30, No. 15. The goods, valued at £208 2s., were food and liquor, in casks marked SB.
8. See Deposition of Thomas Casey, Portsmouth, 3 Dec. 1777, DNA Microcopy 162, Case 30, No. 9, in which he testified
“That on the 21st day of August he embarked as a passenger on board the Brigantine Lusanna bound from London to Halifax. That Mr. Shearjashub Bourne was also a passenger in the same brigantine, from whom this deponent understood that she was formerly ownd by Mr. Elisha Doane of Wellfleet, but that afterwards She was made over to him the said Bourne. That this deponent knows that the said brigantine was publickly advertized as a vessel to carry freight from London to Halifax having seen advertizements put up for that purpose about a fortnight before she saild. This deponent understood from conversation with Mr. Bourne that he the said Bourne had some goods on board the said brigantine.”
After describing the voyage and capture of the Lusanna (text at note 41 above), Casey testified that he had
“heard Mr. Bourne say that he should be a considerable loser thereby [i.e. by the capture]. Previous thereto said Bourne told the deponent that if the goods on board would fetch a good price at Halifax he intended to sell them there, if they would not, he determined to store them there and keep them two years rather than not sell them to advantage. This deponent says that he understood from Mr. Bourne that his father in law Mr. Doane together with his (Bourne's) brother were connected in trade together. That after the capture Mr. Bourne expressed a desire and his hopes of being retaken by some british vessel. That this deponent, Mr. Bourne, and all the other prisoners told the prize master who was fearful of being retaken that in case that event should happen they would do everything in their power to prevent his being a Sufferer.”
He further testified that he paid for his passage, 8 guineas in London and £27 in Portsmouth. On cross-examination by Oliver Whipple, attorney for the Doanes, Casey admitted that he did not “know” that the Lusanna was Bourne's property, but added that he understood from Bourne that there had been some kind of conveyance of the vessel. He further testified that Bourne had never said that he was Doane's factor, and that he, Casey, knew nothing of any such arrangement. Under Whipple's questioning, Casey testified that he had taken the helm during the chase by the McClary in an effort to aid the Lusanna in escaping. The deposition closed with his affirmative answer to Whipple's question, “Do you know that 29 Ib. of Sewing Silk shipped by Mr. James Shepherd was his property?” PCC No. 49, fols. 272–279.
9. Lane, Son & Fraser to Bourne, London, 1 Oct. 1776. DNA Microcopy 162, Case 30, No. 12:
“We have your favors of the 3d and 27th inst. In respect to your Brig Lusanna, she is but just clear of the Channel. When she was upon the point of clearing out at the Custom House it was discoverd that the person who supplyd the Office of Ordnance with the Timber had made a mistake in the Entry, in consequence of which all the Fir was taken out and relanded, the Commissioners of the Customs insisting it should not go in the Vessel. Many applications were made to fill up with other Timber but refused. At length we had a meeting with the Shipper, who after much altercation agreed to pay full freight for the Goods taken out and also 66 £ for Demurrage. The Board of Ordnance insisted the Vessell should go forward with what was left on board, and finding we could not make the Board or the Shippers of the Wood answerable for any Loss or disappointment in regard to her homeward bound freight, we thought it for your Interest that we should accept the offer made us and let Capt. Wood go about his Business. Indeed, we think it luckey for the concern'd that he did not go sooner, as Six Vessells have been taken by a Provincial Privateer, and as we find our Men of War are now cruizing, apprehend there will not be so much risque by the Time your Vessell gets to Gibraltar as there was a month or six weeks ago. We have supplied Capt. Wood with Letters to our Friends at Malaga and Barcelona, at one of which places hope she will get a freight.” PCC No. 44, fol. 311.
See note 27 above.
10. See Deposition of Mary Casey, wife of Captain Thomas Casey (note 8113 above), Portsmouth, 3 Dec. 1777, DNA Microcopy 162, Case 30, No. 10:
“That she heard Mr. Bourne say in conversation that the reason he did not insure the brigantine Lusanna was that she belonged to his father Doane and in case of her being taken he would claim her. That she also heard said Bourne say that he expected to buy Prize Vessels at Halifax and that by that and his other trade there he expected in the course of the ensuing winter to clear five thousand pounds. That after the capture she also heard him say that he should loose all the profits on his goods. She also heard him say after the Capture that he hoped the brigantine Lusanna would be retaken by some of the Kings ships. That the said Bourne in England shewed this deponent some invoices of goods and offered to entrust her with some of them to sell at Halifax on Commissions.”
On cross-examination by Oliver Whipple for the claimants, Mrs. Casey testified that she had never heard Bourne say that he acted for Doane, but understood that the two were in partnership with Doane's brother; that she did not know who owned the Lusanna's cargo, but that she had known that the silk was Captain Shepherd's. PCC No. 44, fol. 281.
11. See Bourne to Messrs. Thomas Cochran & Co., undated, DNA Microcopy 162, Case 30, No. 31. The letter advised the recipients, Halifax merchants, of the forthcoming arrival aboard the Lusanna of several consignments of provisions which they were to dispose of “to the Best Advantage for the Owners and Adventurers,” accounting with them or Bourne; of consignments of provisions belonging to Bourne, which they were to dispose of “to the best Advantage for my Interest,” accounting with him, Lane, Son & Fraser, or the Doanes; and of goods on bill of lading which they were to see delivered to the consignees, except that the goods “in one other Bill of Lading herewith Inclos'd and marked SB belonging to me you will store and wait the further order of Myself, Messrs. Lane Son & Fraser, Elisha or Isaiah Doane.” Bourne also ordered his correspondents to discharge master and crew and lay up the Lusanna until further orders from himself, Lane, Son & Fraser, or the Doanes. By way of postscript he added, “I Order those Goods to You, lest some Accident should befall me on my Passage there as I do not go out in my own Ship.” PCC No. 44, fols. 303–304.
12. See Deposition of Lot Lewis, mate of the Lusanna, Portsmouth, 4 Dec. 1777, DNA Microcopy 162, Case 30, No. 11. Lewis testified that “he understood by the Register that the said brigantine Lusanna was owned by Mr. Shearjashub Bourne tho' he understood the property was in fact Mr. Elisha Doane's of Wellfleet and covered by Mr. Bourne in order to secure the property in that manner.” After describing the Lusanna's departure from St. Helen's, Isle of Wight, on 13 Sept., and her voyage and capture, he continued,
“That before this voyage the brig Lusanna beforementioned was employed to carry Pitch tar timber and bricks which he understood were ordnance Stores from London to Gibralter and he supposes on account of the Government of Great Britain as the flag they wore had in it the figure of three blue balls and three gun-carriages. That they sailed on the voyage last mentioned on the first day of October 1776. The colours above described were received of a Gentleman who I suppose to be a Government Contractor who used to ask why the Brig did not wear ordnance colours as she had ordnance stores on board; and on being answered that they had no ordnance colours on board the said Contractor supplyd them and afterward made Capt. Wood pay for them.”
On cross-examination by Oliver Whipple for the claimants, Lewis admitted that he did not “know” that the Gibraltar cargo was King's stores and stated that he had not known the vessel to be Doane's on the original departure from America, but that Captain Wood had told him that Bourne was acting as owner to protect Doane's property. Further questioning on behalf of the libelants brought out that Bourne had said to Lewis that part of the cargo, marked SB, was his. To Whipple's question Lewis answered that he did not “know of” any King's stores aboard the Lusanna when she was taken. Further questioning brought out that the Lusanna had had aboard two swivels, to be used “to answer signals” only, and some small arms and ammunition at the time of capture, and that the McClary had fired at her “eight or ten times” during the chase.
13. See Edward Crosby to “Capt. William Spry Commanding Engineer at Halifax,” 16 July 1777, DNA Microcopy 162, Case 30, No. 36:
“This is chiefly to beg leave to recommend to your notice my friend Mr. Bourne, who you may recollect din'd with us at Melatiah Bourne's in Boston. Soon after the present Contest in America he made his Escape to this country. He now proposes going out to Halifax in the first arm'd vessel that is sent out with Stores, and with the flattering hope of the Rebellion in America being finally settled this Season, and to be thereby enabled to join his family in New-England. If not, to remain at Halifax till that event takes place. He has loaded a Brigantine of his with the different kinds of Goods suitable for the Halifax market, which sails with the first convoy. He will likewise have a vessel or two, which he would gladly get into Government Service. If you can be of service to him of yourself in recommending to your Acquaintance shall esteem it a favor. Part of his cargo consists of Ben Keiston's best. By the way, I am become as great a Porter drinker as any Jack Roastbeef I meet with.” PCC No. 44, fol. 305.
14. Bourne's Memorial to the Lords of the Treasury, 30 Jan. 1777, DNA Microcopy 162, Case 30, No. 59. Bourne sought recompense for a portion of the cargo of the brigantine Industry, consigned to him at London, which had been condemned in the Court of Vice Admiralty at Boston in Sept. 1775. See note 25130 below; text at notes 29–32 above. In support of his application he urged
“That your Memorialist hath ever been and still is one of his Majesty's loyal Subjects and by every Act in his power he hath maintain'd a firm Attachment to Government and his Loyalty to his most Sacred Majestys Person Government and Laws and while in America publicly and privately disavow'd all actions that might have a Tendency to subvert his Majestys Government and the Constitution, and by a steady perseverance had renderd his Person and Property unsafe. That he was obliged to convey himself with a very small part of his property away from his Native Land to this Kingdom and brought with him a very considerable quantity of Oyl, which he apprehended was very much wanted in this Kingdom; Directly contrary to the Resolves of a body of Men who took upon themselves the Stile or Title of the Continental Congress. And your Memorialist from the time of his departure from thence, left orders for the aforesaid One hundred and two Casks of Oyl [the cargo of theIndustry] to be forward[ed] him at the Port of London aforesaid.” PCC No. 44, fol. 308.
For even more damning evidence, apparently used to bolster the memorial, see the extracts from Bourne's journal, note 8158 below.
15. The invoice of Lane, Son & Fraser, 10 June 1777, note 6111 in above, shows that the goods there covered were insured to the value of 10 guineas per 100, “to return £4 pr. cent if sails with convoy and arrives.” PCC No. 44, fol. 292.
16. The so-called Continental Association was “a non-importation, non-consumption, and non-exportation agreement” bridging the gap between the earlier colonial nonimportation agreements and the Declaration of Independence, and seeking to force British redress of colonial grievances through economic sanctions. See Miller, Origins of the American Revolution 385–392. It was signed in Congress on 20 Oct. 1774. After a recital of grievances reminiscent of the Declaration, the Association stated the pledge of its signers “That from and after the first day of December next, we will not import into British America, from Great-Britain or Ireland, any goods, wares, or merchandise whatsoever, or from any other place, any such goods, wares, or merchandise as shall have been exported from Great-Britain or Ireland.” 1 JCC 76. Also banned were the importation of dutied articles and slaves, the consumption of all banned articles, and the exportation of all goods to Great Britain, Ireland and the West Indies after 10 Sept. 1775. Id. at 77. Goods imported before 1 Feb. 1775 were to be reshipped, stored for the duration, or sold with the profits going to relieve Boston; goods received thereafter were to be reshipped. Id. at 78–79. Violations were to be checked by locally chosen committees,
“whose business it shall be attentively to observe the conduct of all persons touching this association; and when it shall be made to appear, to the satisfaction of a majority of any such committee, that any person within the limits of their appointment has violated this association, that such majority do forthwith cause the truth of the case to be published in the gazette; to the end, that all such foes to the rights of British-America may be publicly known, and universally contemned as the enemies of American liberty; and thenceforth we respectively will break off all dealings with him or her.” Id. at 79.
See also an annotated text of the Association in 1 Jefferson, Papers, ed. Boyd, 149–150.
17. The position of this statement in the MS on the page facing and directly op posite the notes of Lot Lewis' testimony, note 12117 above, as well as its substance, suggest that it is a note by JA of the basis of his objection to admission of evidence on the Lusanna's Gibraltar trip. See text at note 11169 below. JA may refer to 2 Hawkins, Pleas of the Crown 437:
“And therefore it is agreed, That if one be indicted or appealed for killing another with a Sword, and upon evidence it appear that he killed him with a Staff, Hatchet, Bill or Hook, or any other Weapon with which a Wound may be given, he ought to be found guilty, for the Substance of the Matter is, whether he gave the Party a Wound of which he died; and it is not material with what Weapon he gave it, tho' for Form's sake it be necessary to set forth a particular Weapon. . . . Yet it seems clear, That Evidence of poisoning, burning, or famishing, or any other Kind of killing wherein no Weapon is used, will not maintain an Indictment or Appeal of Death by killing with a Weapon.”
18. Depositions of Baker and McKay have not been found. They were probably passengers or crew members aboard the Lusanna who may have testified orally at the trial. It is also possible that they were Portsmouth insurance underwriters who had tried and failed to sell Bourne insurance on his arrival there.
19. No such letter of Doane's has been located. JA may have meant Bourne's letter to an unidentified correspondent “done in a hurry at Sailing” for Halifax in Sept. 1777. DNA Microcopy 162, Case 30, No. 79. Bourne asked that if the expenses of Shepherd's illness could not be met from resources in the letter's hands, an account should be sent to Lane, Son & Fraser, “for this reason only, as Captain Shepherd has goods on board my Brigantine the Lusanna to the amount of £100 which are insured.” If the goods should be taken by privateers, Lane, Son & Fraser would discharge the account from the insurance proceeds; if the vessel should arrive safely Bourne would pay the account from proceeds of sale of the goods which were consigned to him. See note 27132below.
20. Bourne to Lane, Son & Fraser, Halifax, 3 Nov. 1775, DNA Microcopy 162, Case 30, No. 6, informing them that “on the 4th of September last the Brigantine Lusannah belonging to Coll. Elisha Doane of Eastham laded with Oyl 2 Ct. bbl. of which were consigned to your good selves the remainder of the cargo was consigned to me (who married his eldest daughter) sailed from New England for London, and proceeding on our voyage,” was forced into Halifax, “and upon entering the port the brigantine was taken in custody by a King's ship.” The Lusanna was released, then taken again, requiring that Bourne travel to Boston to obtain her release. The letter dealt with other matters including the problems of the Industry, notes 29–32 above, and reported the draft of a bill of exchange on Lane, Son & Fraser for the Lusanna's repairs.
21. Bourne to Lane, Son & Fraser, Halifax, 31 Dec. 1775, DNA Microcopy 162, Case 30, No. 7, repeating the information about the bill of exchange in his letter of 3 Nov., note 20125 above, and adding: “You will further note that the Brigantine [Lusanna] was seized as the property of Elisha Doane Esqr. of Eastham who belongs to New England by virtue of a general order from Lord Dartmouth.” He then reported that he had obtained the vessel's release at Boston and was about to sail for London, having drawn a second bill of exchange for necessaries. The letter bears the apparently incorrect date of 3 Dec. at the head. The date 31 Dec. which appears at the end is more likely, because Bourne was reported to have been in Boston as late as the 13th. Id., Nos. 112, 113.
22. See note 9114 above.
23. Bourne to Doane, London, 12 Oct. 1776, DNA Microcopy 162, Case 30, No. 29:
“My situation here is very unhappy as you may well think being seperated from my Family and friends; But it is neither in my power to change it nor in the least degree prudent to attempt it this winter without exposing my person and leaving your property unguarded. Therefore [I] must for the present remain here until I can return with more Safety to myself and friends.”
After reporting that his presence in England was working to Doane's great advantage, Bourne concluded,
“I am determined to make one Effort ere belong to see you and all friends when I find the gathering of the Storm to abate. When the Brigantine returns [from Gibraltar] I may sell her but that depends on Circumstances and price. Be assured that I have nothing more at heart than the welfare and interest of my friends and if it be in my power to add to their happiness and Interest I shall ever be ready to do it, tho' at the expence of my own small private fortune.”
24. Bourne to his wife, 12 Oct. 1776, DNA Microcopy 162, Case 30, No. 30: “The anxiety under which I labour for your and my children's welfare and peace greatly disturbs me, but my expectations of speedily returning affords me some consolation.”
25. As to the role of the Industry in this case, see text at notes 29–32 above. DNA Microcopy 162, Case 30, contains the record of the proceedings in the Court of Vice Admiralty at Boston, including the libel filed against her by Samuel Fitch on behalf of John DeLaTouche, Commander of H.M.S. Halifax, dated 18 Sept. 1775 (No. 37); the claim of Henry Bromfield, agent for the owners of the Industry for vessel and most of the cargo (No. 38); decrees of Nathaniel Hatch, Deputy Judge, dated 10 and 12 Oct. 1775, condemning the unclaimed portions of the cargo, as well as the vessel and claimed portions (Nos. 39, 42); Bromfield's claim of an appeal to the Privy Council, dated 19 Oct. 1775 (No. 45); and an invoice, dated 7 Sept. 1775 (No. 89), and bill of lading, dated 17 July 1775 (No. 56), under which 102 casks of oil and head matter belonging to Doane were shipped aboard the Industry, consigned to Bourne or Lane, Son & Fraser in London. Bourne's journal, note 8158 below, and his Memorial, note 14119 above, document his petition to the Lords of Trade.
26. For the depositions of John Hancock, John Bradford, John Emery, Charles Miller, Lazarus Goodwin, and Samuel Emery as to Doane's good character as a patriot, all taken early in Dec. 1777, see DNA Microcopy 162, Case 30, Nos. 72, 70. 73. 71, 69, and 67. Hancock stated in part that Doane was “a friend to his country an advocate for liberty and an asserter of the rights and liberties of mankind.” Id., No. 72. He and the others testified to Doane's services as a member of the General Assembly, selectman, provisioner of the Continental Army, and general supporter of the patriot cause. Ibid. Doane was also given a clean bill of health by the Wellfleet Committee of Correspondence. Certificate of 27 Nov. 1777, id., No. 75.
27. See bill of lading, 10 July 1777, Lane, Son & Fraser, consigning two trunks of merchandize to James Shepherd at Halifax; receipt of Matthew Wood, 10 July 1777 to James Shepherd for 29 pounds of silk to be delivered to him at Halifax; acknowledgment apparently by Bourne, Cowes, 4 Sept. 1777, of indorsement to him by Shepherd of the bill of lading and receipt. DNA Microcopy 162, Case 30, No. 19. See note 47124 above.
28. The orders, signed by Doane and countersigned by Wood, provided that Wood was to proceed directly to London and on arrival there to “deliver your Cargo to Messrs. Lane Son & Fraser and Mr. Shearjashub Bourne agreeable to Bills of Lading and when you have delivered your Cargo apply to them for further directions about a Freight back &c.” DNA Microcopy 162, Case 30, No. 104. Dated 21 Aug. 1775 and produced from Doane's copy book, according to Wood's deposition of 28 Jan. 1778. Id., No. 118.
29. Probably a reference to the invoice of Doane's goods shipped aboard the Lusanna “on the proper account and Riske of Elisha Doane,” which was apparently also produced at the trial from Doane's copy book. See the invoice, DNA Microcopy, 162, Case 30, No. 103. A similar notation appears on a gauge of the oil obtained by Joseph Doane and consigned to Lane, Son & Fraser. Id., No. 93. Depositions of David Stoddard Greenough, 20 Feb. 1778, and Matthew Wood, 28 Jan. 1778. Id., Nos. 136, 118.
30. See agreement between Wood and Doane, 29 Aug. 1775, providing that Wood was to have “Ten barrels Priviledge” on the voyage to London and the like en route to New England from the West Indies, if the return trip was made that way. Certain arrangements were made for the division of commissions with Bourne, and Wood was granted living expenses of 2s. 6d. while in London in addition to his wages of £30 per month. DNA Microcopy 162, Case 30, No. 105. This document was produced on the trial from Doane's copy book. See Wood's deposition, 28 Jan. 1778, id., No. 118.
31. Presumably Doane's letter of 29 Aug. 1775, reporting the departure of the Lusanna, commending Bourne to the firm's care, asking them to send him £1500 cash with Bourne, and giving instructions for the return cargo, depending on the political situation. See text at note 18 above. There are in the file, however, other letters, dated 12 Feb. 1776 and 17 July 1777 from Doane to Lane, Son & Fraser, giving further instructions. DNA Microcopy 162, Case 30, Nos. 112, 115.
32. See Doane to Bourne, 7 Sept. 1775, inclosing invoice and bill of lading for Doane's share of the Industry's cargo. DNA Microcopy 162, Case 30, No. 109. See also Doane's letter to Lane, Son & Fraser of the same date. Id., No. 108.
33. Doane to Bourne, 17 July 1777, DNA Microcopy 162, Case 30, No. 116: “By your letter of Septr. last which came to hand we had great expectations of seeing you in America before now, but I suppose the difficulty of the times has occasiond your further stay, doubtless by this time you have settled all my affairs to my advantage and your satisfaction. When prudence should direct should be very glad to see you here.”
34. As to the various bills of lading in Bourne's charge, see Bourne to Cochran, note 11116 above. For Lane, Son & Fraser's, and his own consignments, see notes 6111, 7112, above. See also invoice and bill of lading of Wm. Edenson & Co., 23 July 1777, consigning goods to the value of £1057 125. 6d. (including £66 8s. 6d. insurance), to Bourne. DNA Microcopy 162, Case 30, Nos. 27, 17.
35. See bill of sale, note 3103 above.
36. See note 4109 above.
37. The Resolves of 25 Nov. 1775 and 23 March 1776 are set out in note 3108 above. That of 24 July 1776 appears in note 4109 above.
38. That is, the Continental Association, note 16121 above.
39. Probably a comment that trade would be had in the Mediterranean with people of all of these nationalities as well as with British subjects. The Lusanna did in fact call at Barcelona and bring home cargo from Malaga. See note 27 above.
40. See notes 8113, 10115, above.
41. Spelling uncertain. Perhaps Roberts v. Schooner Thistle,DNA Microcopy 162, Case 1 (Sp. Com. 1776), an appeal from the Pennsylvania Court of Admiralty. The Thistle had been taken by the privateer Congress while en route from Florida to the West Indies with a cargo of flour, pitch pine, and oak to be sold there. The libel alleged that she was the property of inhabitants of Great Britain (amended to read enemies of the United Colonies), and that she was carrying supplies to the “ministerial army” of Great Britain. The vessel was condemned after a verdict that she was the property in part of inhabitants of Great Britain and in part of enemies of the United Colonies. A special committee of Congress, with Robert Treat Paine a member, reversed on 16 Sept. 1776. The reasons for reversal do not appear in the record.
42. Presumably Alsop v. Ruttenbergh, DNA Microcopy 162, Case 11 (Commrs. of App. 1777), an appeal from the Admiralty Court of Rhode Island. The Frank, originally out of New London, and claimed by Mrs. Alsop, a widow, of Middletown, Connecticut, had been captured by the privateer Montgomery, of Providence. The libel alleged that the Frank was en route from Newfoundland to Jamaica in one of a series of voyages she had made between those ports after obtaining a change of name and register at the latter. She had allegedly carried supplies to the fleet and army at Newfoundland. In an earlier proceeding based on a libel alleging only that she was the property of inhabitants of Great Britain the Frank had been acquitted by a jury. On the second libel, after the court overruled a motion to dismiss based on the earlier acquittal, the jury found that the voyages had been made as alleged and that the Frank was carrying supplies to the enemy. On appeal before JA, James Wilson, and Thomas Burke, the appellants were heard, but the appellees did not appear. On 20 May 1777, the Commissioners reversed the decree and ordered redelivery.
43. Presumably Wentworth v. The Elizabeth, William Jackson et al., claimants, DNA Microcopy 162, Case 2 (Sp. Com. 1776), a case in which Lowell himself was both a claimant and of counsel. The Elizabeth had been seized by three Continental privateers on 3 April 1776, en route from Boston to Halifax carrying loyalists evacuating the former city, their belongings, and goods looted during the evacuation. She and her cargo were libeled as having been recaptured after being in enemy hands for more than 96 hours, and for carrying supplies to the enemy. Under New Hampshire law, which adopted the language of a resolve of Congress, the recaptors of a vessel that had been in the possession of the enemy for more than 96 hours were entitled to one half the proceeds of sale, even if the enemy had not condemned her as prize. Act of 3 July 1776, 4 Laws of New Hampshire 30; Resolve of 5 Dec. 1775, 3 JCC 407. For the provision on supplying the enemy, see note 109 above. Jackson, a notorious tory, later tried for his participation, was one of 29 claimants; most of the remainder were citizens of Boston, like Lowell and John Rowe, whose effects had been taken by the departing loyalists. See Rowe, Letters and Diary 316–317. The vessel's owner, a Portsmouth merchant, also filed a claim. Jackson himself had gone as a passenger aboard the Elizabeth, ostensibly to protect his goods. See generally 1 Adams Family Correspondence373–374. In Aug. 1776, a jury in the New Hampshire Court Maritime found that the vessel had not been captured as prize by the enemy, and was not carrying supplies to the British fleet and army, and that she and her cargo ought to be restored to the claimants. On the captors' appeal by their agent, Joshua Wentworth (also an owner of the McClary; see note 43 above), the special committee of Congress, which again included Paine, held that vessel and cargo were not forfeit as prize under the resolve of Congress dated 25 Nov. 1775, note 3108 above, and that the Congressional resolve allowing a portion of the proceeds to recaptors was intended only for vessels which might be condemned as prize by the Law of Nations. The Committee ruled that the owners ought to make reasonable satisfaction for the return of their goods, however. The New Hampshire decree was reversed, and vessel and cargo ordered to be restored on condition that the claimants pay one-twelfth of its value to the recaptors. The report was accepted in Congress on 14 Oct. 1776. See 6 JCC 870–873. See also Clark, George Washingon's Navy 130–132, 136–138, 185–187.
44. Probably a reference to the letter of credit on John Butler of Halifax, which Bourne carried. Compare Whipple's notes of Lowell's argument, text following note 15165 below. See also note 10160 below.
45. These five questions are JA's notes of the heads of his own argument, repeated in slightly different form in Whipple's notes. See note 16166 below.

Docno: ADMS-05-02-02-0009-0001-0004

Author: Whipple, Oliver
Date: 1777-12-16

Oliver Whipple's Minutes of the Argument1

New Hampshire Court Maritime, Portsmouth, 16 December 1777
John Penhallow and others, agents for the Privateer McClary vs. Brig Lusannar
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
{ 390 }
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
{ 392 }
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?
{ 394 }
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
{ 395 }
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.
1. In Whipple's hand. Paine Law Notes. The notes of Whipple, a Portsmouth lawyer retained by Bourne, were apparently prepared for Paine, who entered the case as counsel after JA's departure for France. See note 44 above.
2. See note 2107 above. Compare JA's notes of the libelants' argument, notes 2–4107–109 above.
3. See text at notes 18, 19168, 169, below.
4. For the resolves of Congress and the New Hampshire laws, see notes 3108, 4109, above.
5. See note 5110 above.
6. See note 7112 above.
7. A possible inadvertence for “Treasury.” See note 14119 above.
8. See extracts from Bourne's journal, DNA Microcopy 162, Case 30, No. 60:
“Jany. 30th 1777. This day having all the papers compleated from Mr. Smith my Attorney, carried them to the Court of Chancery to be enrolled, they were accordingly enrolled. After which Mr. Lane and I went to the honorable Jona. Sewall Esqr. to sollicit his favor in order to introduce me to Lord Norths Secretary (Mr. Robinson), but as Mr. Sewall had no acquaintance with the Gentleman I was obliged to apply to Governor Hutchinson for his favor on the topick who readily gave me a letter of Introduction to Mr. Robinson and afterwards wrote to Mr. Robinson to assist me with my memorial by presenting it to Lord North the head of the Treasury.”
The remainder of this entry, and entries dated 11 and 26 Feb. and 1 and 5 March 1777, record Bourne's continuing and apparently unsuccessful attendance on the Treasury during their consideration of his memorial, notes 14119, 25130, above. PCC No. 44 fol. 309.
9. See note 13118 above.
10. See Letter of Credit, Lane, Son & Fraser, to Bourne, 21 Aug. 1777, for £3000, and Letter of Credit in Bourne's favor, Watson & Rashleigh to John Butler, 21 Aug. 1777, for £4000. DNA Microcopy 162, Case 30, Nos. 33, 34.
11. See note 8113 above.
12. See note 10115 above.
13. See note 12117 above.
14. See note 11116 above.
15. Compare JA's notes of Lowell's argument, text at notes 20–44125–149 above.
16. Compare JA's own summary of the heads of his argument at note 45150 above. Whipple has made two heads out of JA's first point. JA's points 2–4 are herein points 3–5. JA's fifth point is an unheaded final paragraph. See note 31181 below.
17. There was testimony at the trial on appeal in the Superior Court that this was a common practice. See Depositions of Jonathan Mason and Nathaniel Libbee, 3 March 1778; John Parrot, Joseph Pierpoint, and Richard Salter, 31 Aug. 1778. DNA Microcopy 162, Case 30, Nos. 143, 144, 147, 139, 131, 138. Compare Statement of the M'Clary Owners 22. For a JA case under the British customs acts in which Doane seems to have attempted to alter a vessel's papers, see No. 52.
18. See notes 9114, 12117, above.
19. See note 17122 above.
20. Compare the Congressional Resolve of 24 July 1776, note 4109 above.
21. See the applicable resolves and laws, notes 3108, 4109, above.
22. It has not been possible to identify with certainty such a case in the Records of the Massachusetts Superior Court of Judicature or Supreme Judicial Court.
23. That is, vessels clearing for America. Trade with Europe was not prohibited. See 17 Geo. 3, c. 41, §§4, 5 (1777). JA probably referred to the statute 16 Geo. 3. c. 5, §§1, 3 (1776), which prohibited all trade with the rebellious colonies, and provided, with exceptions not material here, that all vessels “found trading in any port or place of the said colonies, or going to trade, or coming from trading, in any such port or place,” should be forfeit to the Crown and liable to be taken as prize.
24. See notes 8113, 10115, 12117, above. At the trial in Superior Court in Sept. 1778 there were numerous depositions to the effect that Messrs. Cochran, Bourne's principal correspondents at Halifax, not only did not supply the royal forces, but were sympathetic to the American cause, supplying American prisoners whenever possible. See text and note 72 above.
25. The statute 16 Geo. 3, c. 5. §2 (1776) provided that a vessel in His Majesty's service or carrying supplies to Crown forces or the inhabitants of a garrison town should not be subject to seizure as prize under id., §§1, 3 (note 23173 above), if it produced a license from the Admiralty, a military or naval commander, or a loyal governor, specifying the voyage and the cargo.
26. See note 16121 above. JA was a signer of the Association and was present at the debates on it. See 2 JA, Diary and Autobiography137–140, 147–149, 155.
27. That is, the grievances upon which the Association was based, which were largely the Acts of Parliament raising a revenue and extending the Admiralty jurisdiction, and the so-called Coercive Acts of 1774. These measures were among the far longer list of grievances contained in the Declaration, with the difference that the blame was shifted from Parliament and the Ministry to George III himself. Compare the Association, 1 Jefferson, Papers, ed. Boyd, 149–154, with the Declaration of Independence, id. at 429–433.
28. JA presumably meant that such a sentiment was expressed, or at least assumed, in the debates on the Association in 1774 (note 26176 above), although he was also an active participant in the debates on the Declaration of Independence in June and July 1776. See 3 JA, Diary and Autobiography396–398; 1 Jefferson, Papers, ed. Boyd, 309–315. No record of discussion of this point has been found in either debate, however. That JA correctly stated the position of Congress at this period is suggested by the fact that on 27 March 1781 that body passed a resolution forbidding the practice of bringing property from Great Britain on safe conduct. 19 JCC 314–316. The editors are indebted to Mrs. Kellock for this reference.
29. Probably Fowkes v. The Roseanna,DNA Microcopy 162, Case 20 (Commrs. of App. 1777), an appeal upon which JA may have sat. See note 8 above. The Roseanna, owned by John Brown of Rhode Island through his Nantucket agents, had been seized at Cape Fear, allegedly carrying goods the property of British subjects. The libel further alleged that cargo had been loaded at Nantucket ostensibly for non-British islands, but that this had been deception and that she had imported a cargo into the Bahamas to aid the enemy. Further, she had brought a cargo of British-manufactured goods from the Bahamas into North Carolina, contrary to the resolves of Congress. In a trial of the master's claim without a jury, the Roseanna was adjudged forfeit on the latter two grounds. The master appealed to Congress. No record of the result appears in the files, but according to other sources the decree of the court below was reversed. Davis, “Federal Courts Prior to the Constitution,” 131 U.S., Appendix xxxviii.
30. For examples of licenses to come from Nova Scotia granted by the General Court, see Resolves of 28 Oct. 1776, 19 A&R 624; 29 Oct. 1776, id. at 629. A resolve of 23 April 1777 forbade the departure of persons “to Great Britain or elsewhere” under prior resolves, perhaps to prevent one Ephraim Deane from going to Nova Scotia to get his family under a resolve of 19 April 1777. Id, at 896, 905. But subsequent petitions were granted, both permitting Nova Scotians to settle in Massachusetts, and permitting Massachusetts inhabitants to go to Nova Scotia for their effects. Resolves of 1 Oct. 1777, 20 id. at 146; 15 Oct. 1777, id. at 167–168; 17 Feb. 1778, id. at 295; 9 March 1778, id. at 322; 3 Oct. 1778, id. at 502. At the trial in the New Hampshire Superior Court in Sept. 1778, the deposition of one who had gone for this purpose was offered. See Deposition of Joseph Pierpoint, 31 Aug. 1778, DNA Microcopy 162, Case 30, No. 131.
31. This paragraph is actually JA's fifth point. See notes 45150, 16166, above.
32. See Resolve of 23 March 1776, note 3108 above.

Docno: ADMS-05-02-02-0010-0001-0001

Editorial Note

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
{ 407 }
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
{ 410 }
This remarkable document, although too lengthy to be quoted in full, is well worth examination. On the one hand it seems to be urging Richardson's death, on the other it appears to be vigorously asserting his rights. Its appearance in the Boston Gazette suggests that its author was certainly of the patriot party. This suggestion is accurate: “Callisthenes” was none other than Josiah Quincy himself.80 But his purpose in writing the letter defies explanation. It is possible that he knew of the pardon, inaccurately suspected its arrival in Boston, and hoped to stimulate Richardson's release. Another view might be that “Callisthenes” perhaps purposed to provoke the execution. If this was Quincy's aim, it would seem to contrast sharply not only with his duty as an attorney to his erstwhile client, but also with his stand in the Massacre trials.
Whatever Quincy's motive, shortly after his piece appeared, the Chief Justice told the Suffolk County Grand Jury, in apparent response to “a certain Paper, the Contents whereof have not yet transpired,” that the court believed the jurors “were ignorant that the Case of Ebenezer Richardson was then before his Majesty.”81
The suspense increased, even after the pardon safely arrived, for Hutchinson, despite his belief that “The people have never been in so good a temper to submit to his discharge at any time since he was first committed,”82 thought it best to wait a few days longer, until 10 March 1772, when the inhabitants were engaged at their town meeting. Then Richardson was taken hastily into court and brought to the bar, where on his knees he pleaded his pardon, recognized in the sum of £500 to appear again and plead the pardon whenever the court should require him (an empty formality), and then “fled with precipitation and crossed the ferry before the inhabitants were informed of it.”83 “The Rabble heard of it, and pursued him to execute their own Law upon him, but he happily escaped.”84
So Richardson left Boston, but his reputation remained as soiled as ever. Apparently he lived “at or near Stoneham” for about a year following his { 411 } release, and then received an appointment in the customs service at Philadelphia.85 But, as late as 1774, the mere rumor of his presence in Boston was enough to raise a mob.86
1. Stark, Loyalists of Mass. 422; William R. Cutter, Broadside Regarding Ebenezer Richardson, the Informer, Found in the Library of the Historical Society of Pennsylvania at Philadelphia 9 (n.d.).
2. See Boston Evening-Post, 5 March 1770, p. 3, col. 1; Boston Gazette, 5 March 1770, p. 2, col. 1.
3. Boston Gazette, 5 March 1770, p. 2, col. 1. The Gazette claimed that Richardson had sworn before a grand jury “not many years past” that he had acted on a “commission or warrant” from Charles Paxton; this Paxton denied, calling Richardson “a d——d villain.” According to the Gazette, the grand jurors had complained of Richardson's perjury to a magistrate, with no result. The entire story should probably be treated suspiciously. In the first place, grand jury deliberations were secret, or at least were supposed to be; see form of oath, Act of 25 Nov. 1692, 1 A&R 78, 79. Second, if the grand jury believed Richardson to have perjured himself, it could have presented him; finally, even if the story is true, it establishes only that Richardson did not hold a post requiring a commission. Hutchinson referred to him as “a landwaiter, or inferior custom-house officer, and before that, an informer against illicit traders.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 193. And Peter Oliver called him “a Custom House Officer.” Oliver, Origin and Progress 84. Note, however, that Oliver dates the incident as “the beginning of March 1770.” Ibid. See also Hutchinson to ——, 28 Feb. 1770, 26 Mass. Arch. 450: “Richardson, whose name you must remember as an Informer.” Richardson could well have acted as informer without a commission at first and been commissioned after the grand jury incident.
4. JA to Dr. J. Morse, 20 Jan. 1816, 10 JA, Works 204, 210; Cutter, Broadside Regarding Richardson, reprints a broadside containing the following couplets: “Woburn, my native place can tell / My crimes are blacker far than Hell / What great disturbance there I made / Against the people and their Head. / A wretch of wretches prov'd with child / By me I know, at which I smil'd / To think the PARSON he must bare / The guilt of me, and I go clear.” Cutter attributes the allusion to a protracted incident of 1752, in which the widow Keziah Henshaw gave birth to a child and “at the time of her travail . . . laid it to” the Reverend Edward Jackson. See the details in Samuel Sewall, History of Woburn 319–325 (Boston, 1868). Keziah was a sister of Richardson's wife, Rebecca, which explains JA's “incest” charge. Cutter, Broadside Regarding Richardson.
5. See No. 12.
6. Anonymous report, 3 Bernard Papers 70, MH.
7. See No. 12.
8. Hutchinson to Hood, 23 Feb. 1770, 26 Mass. Arch. 444.
9. Massachusetts Gazette, 11 Jan. 1770, p. 2, col. 3.
10. The Sons of Liberty, Hutchinson said, “thought it best that great numbers of Boys should Meet upon such occasions rather than Men.” See text at note 6 above.
12. Hutchinson to Gage, 25 Feb. 1770, 26 Mass. Arch. 445. For Mein's correspondence with Hutchinson, see 25 Mass. Arch. 455–459.
13. The events of 22 Feb. are largely drawn from the report in the Boston Evening-Post, 26 Feb. 1770, p. 3, col. 1. Although the published story was “almost entirely made up from the facts detailed by [Richardson's] enemies,” see Drake, History and Antiquities of Boston 777, even the anonymous and patently anti-patriot author of the Reports in the Bernard Papers referred his reader to the Evening-Post account without serious correction. 3 Bernard Papers 70, MH. Lillie's shop was located on Middle (now Hanover) Street near the New Brick Church. Stark, Loyalists of Mass. 310; Thwing, Crooked and Narrow Streets of Boston 60.
14. Hutchinson to Gage, 25 Feb. 1770, 26 Mass. Arch. 445, 448. See also Hutchinson to Bernard, 20 Oct. 1770, 27 Mass. Arch. 26, 30.
15. Boston Gazette, 26 Feb. 1770, p. 5, col. 2. Wilmot had “lived in Boston since 1736 as a master mariner.” Jones, Loyalists of Mass. 298. He was employed as a seaman on the sloop Liberty when she was a revenue vessel, and was serving aboard her when she was destroyed. Richard Reeves in Boston Evening-Post, 3 May 1770, p. 3, col. 1.
16. Hutchinson to Gage, 25 Feb. 1770, 26 Mass. Arch. 445, 448. See also Hutchinson to Hood, 23 Feb. 1770, 26 Mass. Arch. 444, 445, in which Hutchinson identifies Richardson's benefactor as “M——x [Molineux] who probably was afraid how he might be attacked himself by such an action.”
18. Boston Evening-Post, 26 Feb. 1770, p. 3, col. 1.
19. 3 Bernard Papers 70, MH. See also William Palfrey to John Wilkes, 5 March 1770, printed in Elsey, “John Wilkes and William Palfrey,” 34 Col. Soc. Mass., Pubns. 411, 415–417 (1941).
20. Boston Evening-Post, 26 Feb. 1770, p. 3, col. 1. Dr. Joseph Warren performed the subsequent autopsy and extracted the eleven shot, each the size of a big pea. Ibid. See also the coroner's inquest, SF 102009.
22. Boston Gazette, 26 Feb. 1770, p. 5, col. 2.
23. 3 Bernard Papers 70, MH. One of the latter-day believers is O. M. Dickerson. But his “The Commissioners of Customs and the Boston Massacre,” 27 NEQ 310 (1954), is only lightly based on the sources.
26. Boston Gazette, 5 March 1770, p. 2, col. 2.
28. No. 64, text at note 49226.
29. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 194. The patriots had moved quickly into print to avert any chance of postponing the trial until passions cooled. “It is whispered that the trial of Richardson and Wilmot will be put off until ——.” Boston Gazette, 5 March 1770, p. 2, col. 2.
30. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 194. For details of the Allen incident and its aftermath, see R. W. Postgate, That Devil Wilkes 134–135 (N.Y., 1929). The Wilkes propagandists, by the way, labeled the doings in St. George's Fields a “massacre,” which term may have inspired the patriots later on. Incidentally, Wilkes himself received a highly charged account of the Richardson affair from one of the patriot leaders. See William Palfrey to John Wilkes, 5 March 1770, in Elsey, “John Wilkes and William Palfrey,” 34 Col. Soc. Mass., Pubns. 411, 416–417 (1941).
31. See editorial note to Nos. 63 and 64.
33. 3 Bernard Papers 76, MH; see 3 Hutchinson, Massachusetts Bay, ed. Mayo, 205; Oliver, Origin and Progress 87, also refers to this visit, but seems to place it after Richardson's trial. Compare Lynde, Diary 194 (14 March 1770): “Com[mitte]e of Boston with Court after Warren.”
37. In England, there was “no express provision that the defendant in felony shall have process to bring in his witnesses.” I Chitty, Criminal Law 625 note. Hawkins, however, thought that although in capital cases the defendant had “no Right by the Common Law to any Process against his Witnesses without a special Order of the Court . . . it seems that since the Statute of 1 Annae [c.] 9 . . . which ordains, That the Witnesses for the Prisoner shall be sworn, Process may be taken out against them of Course in any Case whatsoever.” 2 Hawkins, Pleas of the Crown 435. No Massachusetts statute appears to cover criminal cases, although from early pro vincial days, the parties in civil causes were entitled to subpoena witnesses. Preston and the soldiers were afforded process to summon witnesses. See editorial note to Nos. 63 and 64, note 63.
39. 3 Bernard Papers 76, MH; Lynde, Diary 195 (17 April 1770). The following tentative chronology is based on (1) 3 Bernard Papers 76; (2) Lynde, Diary; (3) Paine Diary; (4) the Minute Books for this and the Charlestown terms:
13 March (Tuesday), Court convenes; indictment sometime during that week.
19 March (Monday), Richardson arraigned.
23 March (Friday), Richardson requests counsel.
27 March (Tuesday), “Attorney General to Ipswich Court; so we on civil actions all the week.” Lynde, Diary 194.
2–7 April (Monday-Saturday), civil and routine criminal cases.
10 April (Tuesday), Charlestown term commenced.
13 April (Friday), Charlestown term adjourned.
17 April (Tuesday), second postponement.
20 April (Friday), trial.
21 April (Saturday), verdict; court adjourned to 29 May.
29 May (Tuesday), court adjourned to 31 May.
31 May (Thursday), court meets, adjourned to 6 September.
6 September (Thursday), motion for new trial and jury examined.
7 September (Friday), motion argued.
40. 3 Bernard Papers 76, MH. Drake, History and Antiquities of Boston 777, says without citation that Sampson Salter Blowers was associated with Quincy. A contemporary account (note 43 below) shows that Quincy had help, and the Paine notes indicate that Blowers participated in the late stages of the affair at least. Quincy's service in Richardson's defense has received almost no attention or even notice. Gordon, for example, did not mention it (see note 11 above); nor did Josiah Quincy in his memoir, Josiah Quincy, Jr., or Samuel M. Quincy in his introduction and notes to Quincy's Reports. Yet in many respects Quincy's defense of Richardson was even more significant than his participation in the Massacre trials.
It is worth noting that whereas in provincial Massachusetts, the court would apparently appoint counsel for a man accused of murder who had none, in contemporary England (and, for that matter, in New York), defendants in felony trials could not be represented by counsel at all. The rule, it is true, was gradually being relaxed in England, and in at least one reported case of 1758, counsel was cross-examining the witnesses. But not until the Prisoners' Counsel Act, 6 & 7 Will. 4, c. 114, §1 (1837), was a prisoner accused of felonies given the right to have counsel present his full defense. And, even in the mid-18th-century English trials which conceded counsel the right to cross-examine, the attorney was not permitted to address the jury on the prisoner's behalf. See generally, 9 Holdsworth, History of English Law 235; 1 Stephen, History of Criminal Law 424–425, which discusses the English case, Rex v. Barnard, 19 State Trials 815 (London Sessions, 1758). On the New York practice, see Julius Goebel and T. Raymond Naughton, Law Enforcement in Colonial New York 573–574 (N.Y. 1944). The Massachusetts right to counsel may stem from general legislation on attorneys. The “Act for the Establishing of Judicatories and Courts of Justice Within This Province,” after conferring on the Superior Court of Judicature “cognizance . . . in all pleas of the crown, and in all matters relating to the conservation of the peace and punishment of offenders,” enacted that “it shall be in the liberty of every plaintiff or defendant . . . to plead and defend his own cause in his proper person, or with the assistance of such other as he shall procure being a person not scandalous or otherwise offensive to the Court.” Act of 25 Nov. 1692, 1 A&R 72, 73–74, 75. This act and several successors were disallowed, 1 A&R 72; Act of 19 June 1697, 1 A&R 283; Act of 18 July 1699, 1 A&R 372; but finally, in 1701, after the Superior Court received the jurisdiction of the three English common-law courts (“An Act for The Establishing a Superiour Court of Judicature, Court of Assize and General Goal Delivery Within This Province,” 26 June 1699, 1 A&R 370, 371) and the Privy Council approved, the General Court passed “An Act Relating to Attorneys,” providing that “the plaintiffe or defendant in any suit may plead or defend his cause by himselfe in his proper person, or with the assistance of such other person as he shall procure.” Act of 20 June 1701, 1 A&R 467. Arguably, despite its language, this act applied to criminal as well as civil matters.
42. This was Paine, who had probably been retained as a result of the following resolution:
“Voted, that the Selectmen be desired to employ one or more Council to offer to the Kings Attorney as Assistance to him in the tryal of the Murtherers now committed; and in case the Kings Attorney should refuse such Assistance, and the Relatives of those Persons who were murthered should apply for it, that then the Town will bear the Expence that may accrue thereby.” Town Meeting, 13 March 1770. 18 Boston Record Commissioners, Reports 14.
43. Boston Censor, 28 March 1772, p. 77.
44. 1 Gordon, History of Independence 276: “Provoked, rather than endangered by the assault, he fired and killed.” George Bancroft, History of the United States of America, 3:371 (N.Y., 1895): “Provoked but not endangered.” Edward Channing, A History of the United States, 3:119 (N.Y., 1912): “[A]n informer, being attacked by a mob, fired at his assailants from a window and killed a harmless eleven-year-old boy; but beyond a demonstration at the boy's funeral, nothing happened.”
46. Oliver, Origin and Progress 86. At least three of the spectators had their pockets picked. See Confession of John Bemis, SF 89524; Min. Bk., Suffolk Sess., Aug. [i.e. July] 1770.
47. Hutchinson to Lord ——, 21 April 1770, 26 Mass. Arch. 463.
49. 3 Bernard Papers 76, MH. This extract has been punctuated for clarity and quotation marks have been inserted.
52. Oliver, Origin and Progress 86. Lynde, Diary 195, 20 April 1770, says “jury went out after noon,” which does not seem correct in view of the trial's length. On the jurors' domiciles, see SF 101646b.
53. Oliver, Origin and Progress 86, says eight; Lynde, Diary 195, 21 April 1770, says nine.
54. Wilmot seems to have been almost ignored by lawyers, witnesses, and court, and, except for some early flurries, by the patriot press, too. Boston Gazette, 26 Feb. 1770, p. 5, col. 2; Boston Gazette, 5 March 1770, p. 2, col. 1. Paine's notes indicate that some effort was made, consistent with English practice, to prove him a principal in the affair, although he had been indicted for “aiding, helping, abetting, assisting, and maintaining” Richardson. Indictment, SF 102009. See testimony of Robert Hewes and Phil Ridgaway, and the authorities cited on the law of accomplices, Doc. II below. But the evidence against him was so weak that not even the mob could demand his life.
57. Hutchinson to Lord ——, 21 April 1770, 26 Mass. Arch. 463.
60. Hutchinson to Lord ——, 21 April 1770, 26 Mass. Arch. 463; Paine Diary, 21 April 1770; Lynde, Diary 195, 21 April 1770.
61. Paine Diary, 29 May 1770; see also Lynde, Diary 196, 29 May 1770. Min. Bk. 91.
62. Lynde, Diary 198. Regrettably, there are no entries in JA's diary in 1770 after August. Hutchinson is apparently wrong in his implication that the court continued the case for further consideration only after learning what went on in the jury room. See 3 Hutchinson, Massachusetts Bay, ed. Mayo, 206. The subpoenas, dated 1 Sept. 1770, summoned the jurors to appear in court at 9 a.m. on 6 Sept. to “be enquired of touching” the trial. SF 101646b.
63. Testimony of Jonathan Ellis, Doc. III below.
64. Testimony of Thomas Lothrop, Doc. III below.
65. James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 178 (Boston, 1898); 1 Stephen, History of Criminal Law 311; 1 Chitty, Criminal Law 654. And see Rex v. Marchant, 2 Keble 403, 84 Eng. Rep. 253 (K.B. 1699): trial for perjury; the trial judge certified that the verdict was against evidence (that is, that there was no evidence tending to convict, not that the verdict was against the weight of the evidence; see No. 12, text at note 49). Held: motion for new trial denied, because “there can be no trial de novo for, or against the King.” 21 Viner, Abridgment 479, tit. Trial, also cites this holding.
66. See No. 12, notes 474 and 40110.
67. Bushell's Case, Vaughan 135, 124 Eng. Rep. 1006 (C.P. 1670), discussed in No. 12, text at notes 56–60.
69. Rex v. Miller, 20 Howell, State Trials 869, 894 (Guildhall 1770).
71. Thayer, Evidence at Common Law 253.
72. 2Hale, Pleas of the Crown 309–310. The entire passage is set out, note 57173 below.
74. Hutchinson to Hillsborough, 15 May 1771, 27 Mass. Arch. 167–168; the Instrument itself is in SF 102009.
75. Hutchinson to Pownall, Aug. 1771, 27 Mass. Arch. 210–211; Hutchinson to Lord——, 12 March 1772, 26 Mass. Arch. 301. See also 3 Hutchinson, Massachusetts Bay, ed. Mayo, 206–207 note; Oliver, Origin and Progress 87; Hutchinson to Hillsborough, 8 Sept. 1771, 27 Mass. Arch. 224.
76. Boston Gazette, 1 April 1771, p. 1, col. 1, reprinting a note from the Massachusetts Spy, 21 March 1771. Because benefit of clergy (respite from execution by reason of literacy) extended only to those convicted of manslaughter, allowing Richardson, who had been convicted of murder, to plead it, would have enlarged the privilege.
77. Reprinted, Boston Gazette, 27 Feb. 1772, p. 3, col. 2. Nathaniel Ropes had been appointed to the Superior Court on 15 Jan. 1772 upon the resignation of Chief Justice Benjamin Lynde. Whitmore, Mass. Civil List 70.
78. This expression had been used in the course of the trial. See Doc. II, text at note 15131.
79. Boston Gazette, 10 Feb. 1772, p. 2, cols. 1, 2.
81. The courtroom colloquy took place 22 Feb. 1772. Boston Gazette, 24 Feb. 1772, p. 3, cols. 1, 2.
82. Hutchinson to “JP Esq.,” 18 March 1772, 26 Mass. Arch. 305.
83. Boston Gazette, 16 March 1772, p. 3, col. 2.
84. Oliver, Origin and Progress 87. Min. Bk. 95, SCJ Suffolk; Rec. 1772, fols. 15–16. The doggerel of the previous month was echoed in “A Monumental Inscription on the Fifth of March. Together with a few Lines On the Enlargement of Ebenezer Richardson, Convicted of Murder” (Boston?, 1772), reproduced in Massachusetts Historical Society, Some Early Massachusetts Broadsides,No. 26 (Boston, 1964):
“Oh! Wretched man! the monster of the times, / You were not hung 'by reason of old Lines,' / Old Lines thrown by, 'twas then we were in hopes, / That you would soon be hung with new made Ropes; / But neither Ropes nor Lines, will satisfy / for seider's blood! But GOD is ever nigh, / And guilty souls will not unpunish'd go / Tho' they're excus'd by judges here below! / You are enlarg'd but cursed is your fate / Tho' Cushing's eas'd you from the prison gate / The—Bridge of Tories, it has borne you o'er / Yet you e'er long may meet with HELL's shore.”
Compare text at note 77 above. The “Bridge” was Judge Trowbridge. See Clarence S. Brigham, Paul Revere's Engravings Plate 18 (Worcester, 1954).
85. Boston Gazette, 3 May 1773, p. 3, col. 1; id., 24 May 1773, p. 2, col. 3.
86. Hutchinson to Earl of Dartmouth, 28 Jan. 1774, reprinted in Hersey, “Tar and Feathers: The Adventures of Captain John Malcom,” 34 Col. Soc. Mass., Pubns. 429, 449 (1943)

Docno: ADMS-05-02-02-0010-0001-0002

Author: Quincy, Josiah Jr.
Date: 1770-04

Defense Counsel's Notes1

Suffolk Superior Court, Boston, April 1770
Dom: Rex vs. Richardson and Wilmot Upon an Indictment for Murder
1st. To open the Defence with a proper Address to the Jury to remove all popular Prejudices and Passions and engage them to make a fair, candid and impartial Enquiry and to give their Verdict agreeable to Law and the Evidence, uninfluenc'd by any other Motive; to mention the manner of my becoming engaged as Council for the Prisoners, explain my Duty and the Part I ought and am determin'd to act.
2d. The Witnesses for the Crown having been carefully and thoroughly cross-examined, to produce those for the Prisoners, and endeavour to find out what the Nature and Degree of Provocation offered; how far the Attack upon the house was carried; Whether and to what Degree the Windows were demolished before the firing, and whether the Door was broke open, and any Attempt made upon it; whether any actual Attempt was made to enter; or any Evidence of such Design from threatning Words; Whether Men as well as Boys were not concerned in that Attack; What Weapons were used or thrown into the house; and whether any One within was wounded; and upon the whole whether this is not to be consider'd as an Attack upon the Persons of the Prisoners.
3d. To sum up the Evidence and state the Facts as they shall appear upon Evidence.
4thly. To explain the Nature of the Crime of Murder and the different Kinds of Homicide, as justifiable, excusable (as se defendendo) and felonious: and to shew the Distinction between felonious Homicide of Malice prepense, which is properly Murder, and without { 412 } such Malice, which is Manslaughter. Foster 273. 4. 7.2 1. H.H.P.C. 449.3 4 Black. Com:
The Crime in the present Case cannot at most amount to more than Manslaughter, as he was in his house peceably and there assaulted, by breaking his Windows and throwing Stones at him. And if an Intent to enter and commit a Felony appear, whether from threatening Words, or an Attempt to break the Door or the manner and Degree of the Attack, it is excusable Homicide Se defendendo, at least, if not justifiable. A Man's house is his Castle and he may defend it by himself alone or with such as he calls to assist him. 1 H.H.P.C. 445. 487.5 5 Coke Repts. 91b. Semane's Case.6 11 Coke Repts. 82b. Lewis Bowles Case.7
A Man is not obliged to retire from his house. 1 H.H.P.C. 486.8
So he may justify killing one that attempts to break open his house in the Day time with an attempt to Rob or commit other Felony. 4 Black: Com. 180. 3. 182.9 1 H.P.C. Page 71 Chap. 28 Sect. 21 and by Sect. 23 of this and Sect. 13 of the next Chap. it appears that ware { 413 } one kills another who assaults him in his house in the Day Time with Intent to beat him only is guilty of Homicide Se defendendo and if he appears to have a Design of killing him it is justifiable Homicide. Vid. Sect. 124.10 Vide also Hales P.C. 40 the reason why it is not justifiable but excusable only is that “they came not to commit a known Felony,” and “it cannot be judged whether he meant to kill me.”11 But if a man in the Daytime breaks the Windows of the house of another and endeavours to enter in order to execute a civil Process, and he within kills him this is Manslaughter and no more. Cooks Case in Cro. Car.: 537. 8.12 And it appears by Lord Hales brief State of this Case 1 H.H.P.C. 458 that had Cook not known the other to be a Bailiff, it had been no Felony because done in Defence of his house.13 So if A endeavours to enter a house and shoots an arrow at those within and B shoots another out at those who wou'd enter and kills one of the Company. This is ruled not to be se defendendo, but Manslaughter because there was no Danger of their Lives by the Arrow so shot into the house upon them. Harcourts Case 1 H.H.P.C. 485. 6.14 Vid. also the Case of Dra[y]ton Basset in 1 H.H.P.C. 440. 1 and also in Page 444. 5 which shews who shall be said to be present, aiding, abetting &c.15
{ 414 }
If upon angry Words one man assault another either by pulling him by the Nose or even filliping him upon the Forehead, and he who is so assaulted immediately runs the other through, it is but Manslaughter, for the Peace is broken by him that is killed; and he that receives such Indignity may reasonably apprehend a further Design upon him; Maugridges Case, in Keyling's Repts. 135 adjudged and reported by Lord Holt.16
D. Williams on a sudden and slight Provocation only of Words kills Marbury, ruled to be only Manslaughter, 1 H.H.P.C. 469 and in 470,17 another Case mentioned also by Foster 298. 299 where no[]18 given but an Officer had violently entered a Room to make an arrest.19
Two Boys fight, one is beat and runs home blody and complains to his Father who goes three quarters of a mile and kills the other Boy ruled to be Manslaughter by Reason of the sudden heat &c. 1 H.H.P.C. 453 Rowley's Case taken from 12 Coke Repts. 87.20 Vide also a Case in Strange Repts. 499 &c. ruled to be manslaughter only a strong Case.21
On a sudden Affray or Quarrel if the Party has declined the Combat and retreated as far as he Can with Safety and kills his Adversary thro' Necessity and to avoid immediate Death, it is Se defendendo; { 415 } but if the Combat on both sides is kept up to the time the mortal Stroke is given, and he who gave it was not at that Time in emminent Danger of Death it is Manslaughter, Foster 277.22
A Woman strikes Stedman a Soldier who returns the Blow with the pummel of his Sword. She fled he pursued and stabbed her in the back this ruled to be no more than Manslaughter: by Holt. Foster 292.23 Vide the general Observation by the same author Page 296 which Note.24
If A shoots at B misses him and kills C, if it wou'd have been Murder supposing he had killed B; it will amount to the same Offence, tho' C is killed, whom he did not intend to hurt. On the other hand if the Blow intended against B arose from a sudden Transport of Passion which if B had died by it wou'd have reduced the Offence to Manslaughter, the Fact will admit of the same Alleviation if C shou'd happen to fall by it. Foster 261. 2.25 1 H.H.P.C. 442.26
By Foster 295 Sect. 3d. it is apparent that tho' base Words of Reproach or Gestures are not such Provocation as to lessen the Crime to Manslaughter. Yet when there is any assault on the Person arising from thence, it is otherwise: This Distinction appears from Maugridges Case:27 Whenever the Assault is very slight, as two persons justling against a Wall A kills B who had justled him, or if B had { 416 } whipt A's horse out of the Path and A had alighted and killed B, it had been only Manslaughter, 1 H.H.P.C. 455. 456.28 Where it also appears that Words of Menace of Bodily harm wou'd reduce the Crime to Manslaughter, though Words of Reproach only, woud not.29 Vid. these Distinctions 1 Hawkins P.C. Page 82 and 83 Sect. 34. 35. 36. 37.30
1. In an unidentified hand, probably Josiah Quincy's; docketed by JA: “Rex v. Richardson.” Adams Papers, Microfilms, Reel No. 185.
2. The references are to Foster, Crown Cases 273, 274, and 277, all of which are within Chapter III, entitled “Homicide founded in Necessity.”
3. 1 Hale, Pleas of the Crown 449: “Chapter XXXVI: Touching murder, what it is, and the kinds thereof.”
4. 4 Blackstone, Commentaries *190–192 distinguishes murder and manslaughter.
5. 1 Hale, Pleas of the Crown 445: “But if A. comes to enter with force, and in order thereunto shoots at his house, and B. the possessor, having other company in his house, shoots and kills A. this is manslaughter in B.” 1 id. at 487: “[H]is house is his castle of defense, and therefore he may justify assembling of persons for the safeguard of his house.”
6. Semayne v. Gresham, 5 Co. Rep. 91, 77 Eng. Rep. 194 (K.B. 1605).
“[T]he house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose; and altho' the life of man is a thing precious and favoured in law . . . if thieves come to a man's house to rob him, or murder, and the owner or his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing. . . . [E]very one may assemble his friends and neighbours to defend his house against violence.”
7. Bowles v. Bury, 11 Co. Rep. 79, 82, 77 Eng. Rep. 1252, 1258 (K.B. 1616): “If a Man is in his House, and hears that others will come to his House to beat him, he may call together his Friends, &c. into his House to aid him in Safety of his Person; for as it has been said, A Man's House is his Castle and his Defense, and where he properly ought to remain.”
8. 1 Hale, Pleas of the Crown 486: “[A man] being in his own house need not fly, as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, for that would be to give up the possession of his house to his adversary by his flight.”
9. 4 Blackstone, Commentaries *180:
“If any person attempts a robbery or murder of another, or attempts to break open a house in the night time . . . and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets; or to the breaking open of any house in the day time, unless it carries with it an attempt of robbery also.”
4 id. at * 182–183 discusses “homicide per infortunium, or misadventure,”
10. 1 Hawkins, Pleas of the Crown 71, §21 lists various justifiable killings of wrongdoers. Id. at 72, §23:
“[H]e who in his own Defence kills another that assaults him in his House in the Day-Time, and plainly appears to intend to beat him only, is guilty of Homicide se defendendo, for which he forfeits his Goods, but is pardoned of Course; yet it seems that a private Person . . . 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 publick Justice.”
Id. at 74–75, §13, defines homicide se defendendo:
“where one, who has no other possible Means of preserving his Life from one who combats with him on a sudden Quarrel, or of defending his Person from one who attempts to beat him (especially if such Attempt be made upon him in his own House,) kills the Person by whom he is reduced to such an inevitable Necessity.”
Probably 1 id. at 72, §24:
“And I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatsoever, in such a Manner as plainly shews an Intent to murder him, as by discharging a Pistol, or pushing at him with a drawn Sword, &c. may not justify killing such an Assailant, as much as if he had attempted to rob him.”
11. Hale, Pleas of the Crown (Summary) 40: “But if the assault in my House were not to rob me, but to beat me, &c. there would be only se defendendo and Goods forfeited, and a Pardon of course to be granted,” and so as in the text. Quotation marks have been supplied in text.
12. Rex v. Cook, Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1639). The text states the case.
13. 1 Hale, Pleas of the Crown 458. Hale does not mention that the breaking took place in the daytime, which, according to the report, it did. It seems likely, therefore, that whoever wrote the instant note had examined the original report in Croke.
14. 1 Hale, Pleas of the Crown 485–486. The text states the case.
15. The Drayton Basset Case, 1 Hale, Pleas of the Crown 440–441, and the discussion in id. at 444–445, concern liability of each member of an unlawful gathering for death caused by any one of them.
16. Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114, Holt K.B. 484, 90 Eng. Rep. 1167 (Q.B. 1707). JA had dealt with this case recently when arguing Rex v. Corbet, No. 56. His notes for that argument, together with the footnotes thereto, fairly state the case.
17. Rex v. Williams, W. Jones 432, 82 Eng. Rep. 227 (K.B. 1640). Williams, a Welshman, on being taunted by R., threw a hammer at him, but missed, striking and killing M. Held: Manslaughter and, because not within the Statute of Stabbing, 1 Jac. 1, c. 8 (1604), clergy allowed, 1 Hale, Pleas of the Crown 470 note, notes the view of Holt, C.J. in Reg. v. Mawgridge, Kelyng 119, 131–132, 84 Eng. Rep. 1107, 1113 (Q'B. 1707), that if the indictment had been for murder Williams ought to have been found guilty for lack of sufficient provocation.
18. Blank in MS.
19. Foster, Crown Cases 298–299, in a discussion of the Statute of Stabbing, recites the anonymous case here stated, 1 Hale, Pleas of the Crown 470, to which Foster cites, attributes the case to the 1657 Newgate sittings before Glynn, C.J.Held: The killing was not within the Statute, and so clergy allowed.
20. Rex v. Royley, Cro. Jac. 296, 79 Eng. Rep. 254 (K.B. 1612), reported anonymously 12 Co. Rep. 87, 77 Eng. Rep. 1364, and set out substantially as in the text, 1 Hale, Pleas of the Crown 453.
21. Rex v. Reason & Tranter, 1 Str. 499, 93 Eng. Rep. 659 (K.B. 1722), discussed at length, Foster, Crown Cases 292–294. Held: where two against one, deceased stabbed nine times, then shot as he lay on the floor, defendants guilty only of manslaughter, because the evidence supported a finding that the deceased struck the first blow and threatened the defendants.
22. Foster, Crown Cases 277:
“He therefore who in the Case of a mutual Conflict would excuse Himself upon the Foot of Self-Defence must shew, that before a Mortal Stroke given He had declined any further Combat and retreated as far as He could with Safety: and also that He Killed his Adversary through meer Necessity, and to avoid immediate Death. If He faileth in Either of these Circumstances He will incur the Penalties of Manslaughter.”
23. Reg. v. Stedman, Foster, Crown Cases 292 (Old Bailey, 1704):
Holt was at first of Opinion that this was Murder, a single Box on the Ear from a Woman not being a sufficient Provocation to Kill in this Manner, after He had given Her a Blow in return for the Box on the Ear. And it was proposed to have the Matter found Special. But it afterwards appearing in the Progress of the Trial, that the Woman struck the Soldier in the Face with an Iron Patten, and drew a great Deal of Blood, it was held clearly to be no more than Manslaughter.”
JA considered this case in the course of Rex v. Corbet, No. 56.
24. Foster, Crown Cases 296:
“To what I have offered with regard to sudden Rencounters let Me add, that the Blood, already too much Heated, kindleth afresh at every Pass or Blow. And in the Tumult of the Passions in which meer Instinct Self-Preservation, hath no inconsiderable Share, the Voice of Reason is not heard. And therefore the Law in Condescension to the Infirmities of Flesh and Blood hath extenuated the Offence.”
25. Foster, Crown Cases 261–262, sets out substantially the point here summarized.
26. 1 Hale, Pleas of the Crown 442, supports this point.
27. Foster, Crown Cases 295:
A. useth provoking Language or Behaviour towards B. B. striketh Him, upon which a Combat ensueth, in which A. is Killed. This is held to be Manslaughter, for it was a sudden Affray and They fought upon equal Terms. And in such Combats upon sudden Quarrels it mattereth not Who gave the first Blow.
For Mawgridge's Case, see note 16102 above.
28. 1 Hale, Pleas of the Crown 455–456, sets out these examples.
29. 1 Hale, Pleas of the Crown 456: “[W]ords of menace of bodily harm would come within the reason of such a provocation, as would make the offense to be but manslaughter.”
30. 1 Hawkins, Pleas of the Crown 82–83, discusses the various provocations and excuses, and collects the applicable cases.

Docno: ADMS-05-02-02-0010-0001-0003

Author: Paine, Robert Treat
Date: 1770-04

Paine's Minutes of the Trial1

Suffolk. Supr. Ct. April 1770.
Dom. Rex vs. Ebenezer Richardson and George Wilmot
S. Quincy.
Wm. Gray, day before Some mention of Effigies. R said he hoped if these was before Importers Doors there be a Dust beat up, wish'd the 14. Regiment there. They would Cut up the d——d Yankees. Some time before he said he would give the Devil a Supper of them if— He has also said he would not hurt any body unless they hurt him.
Deb. Warner. I was Looking out of my Shop door, I saw R by the Eff[igy]. He came by with the Gentlemen and cry'd out Perjury Perjury, and said not you. Went into his house, and then came out and he came out in a great Rage, doubling his Fists and <called> challenged the Gentlemen to the Door. Said it should be hot enough before night. This brought the Boys from the Eff. The Boys threw light stuff. He came out with a Stick, and threatned and then went in the Step of the Door and went in and a brick Batt came out of the House and struck a Man who took it up and threw it in and that was the first of the Windows being broken.
On saying Perjury, he said it shall be hot enough before night.
Before Window broke he swore if they did not disperse he [would] make a Lane thro them.
Front Door open when the Gun fired. No body had attempted to { 417 } enter; months ago, I have heard R say Let 'em come on me I'm ready, for I've Guns loaded. I said I am not safe.
Hannah Warner. The first I saw, R. was with Gentlemen called P.P.2 Challenged em up to Door. Boys came, R in great Rage. He ordered em to go off. They said they would not, Kings high Way. He said he had a Gun loaded and would fire. Swore by G— he would make a lane, no Men.
Edwd. Procter. I was coming from No[rth] 1/4 past 10, with Some Gentlemen to see Pagentry before Lilly's Door. R cry'd Perjury, Perjury. I said what do you mean. He said by the Et[e]r[na]l G—d I'll make it too hot for you before night. I withdrew. I saw the brick strike[Soldier?]. He returned it and broke 20 Squares. Soon after the Gun fired. R. doubled his Fist and said Damn ye come here I'm ready for you.
When the Boys threw, I don't remember any Men among 'em.
Saml. Appleton. I heard Boys huzza. The first I saw by Lilly was R. He spake to Mrs. L——, then spake to Country man with Waggon. R. shoke hand and said Perjury. Knox asked him what he meant. He said damn your blood come here, I'll make it too hot for you before night. Boys got to the Door, threw things. Woman came out. Egg struke Woman.
R: came out and said if you dont go away I'll blow a hole thro you enough to Drive a Cart and Oxen.
At the back Door, I saw R. and W's. Guns. R said Dam their Blood I don't care what I have done. He had a Cutlass drawn, and resisted. He said he would resign himself to proper Officer.
Nathl. Noyes. I saw R. level Gun and snapt it at the Door, and went into the House. No Glass broke at that time. Then Boys threw Sticks. At first Snapping Boys were playing elswhere.
Saml. Lock. I was in Town to sell milk. I saw Boys bringing Show. I was at Lillys, read it, saw People at the Door. He said begone to the Boys. 3 or 4 of us stood before R. Window. Saw 'em thro',3 no Windows broke. He said if they did not go off he'd make it too hot for 'em, as sure as there was a G— in heaven, he'd blow a Lane thro 'em. He flashed a Gun in the House pointed to the Street.
Robert Paterson. I went up to R, and I saw R fire the Gun, from within the House. The Boy fell. The Shot went thro' my Trowsers.
Charles Atkins. I saw him walking in the Room with the Gun on { 418 } his Arm. Saw him pull the Tricker. Syder was stooping to take up a Stone as I thought, and was Shot down. 60 or 70 Boys.
Jona. Kenny. The first I saw was 4 or 5 Stones flung out of R. Windows. None had been then flung at the House. I saw R knell down and point the Gun out of the Window, and I saw him shoot.
Syder threw nothing stood looking.
One stone struck me.
I was by Syder 5. minutes. Saw him throw nothing.
John Home. Woman run out and whipt the Boys. Then they threw Sticks; I saw him load, saw him point the Gun and fire.
When he loaded the Gun no Window broke.
R. came out swore by G— if they did not go away he'd make a Lane.
Robert Bricks. Heard R. cry Perj:, your a pack of perjd. Villians. Knox come here. R. presented the Gun out of the Door.
<Robert Hews>
David Bradley. Windows broke when I got there. I saw 3 or 4 Stones come out of the Window. I saw one or two Men in the Room with Guns in their hands. R put a Gun on edge of Window. I heard the Gun, and run to the back of the house. R clapt the Gun at me.
The Boys ceased throwing till R. threw again.
Wilmot was there. He said it was not I but R.
Robt. Hewes. After Guns fired, I saw R at Window. Boy threw. He presented again. Wilmot said he was assisting him. Wil: presented his Gun out of Window and said Stand off or I'll fire.
Phil Ridgaway. I saw W. at Rs.
When I first came, no Windows broke. Large Stones thrown from house. Then Saw W and R in Yard with Guns. R. said I don't care what I've done when they told him he had killd a Boy. I took from W. a Gun loaded with 179 Shots. 17. Swan Shot. The rest Goose and Duck. She looked as if flashed. Wilmot said he could not have fired for the Screw pin was gone.
Some men laughed, 10 or 15 Stones thrown by Men with violence, but remember none in particular.
Thos. Young.4 Wound mortal.
John Loring. Wound mortal.
Black. Anal. 119. Murder and Manslaughter.5
{ 419 }
Hales Pl. Cr. 31: Murder what, if the act unlawful.6 44. If a man do an act by which Death must ensue, consider, if intended.7 45. An Intention of Evil tho not against a particular Person.8
F.C. Law. 255. The fact proved, prisoner must excuse.9
F.CL 291. §2. The Weapon. Murder.10
HHPC. 451. Def. of Malice in fact.11
2 Ray. 1489. Malice express, if a Man do an Act that must do harm.12
Sarah Richardson. Mr. Knox and Capt. Matchet followed Father up to the Door and said come out you damn Son of Bitch, I'll have your Heart out your Liver out. Boys came there. Knox, Procter and Machet stood behind the Boys. Dont know how long. They threatned to kill us all. I staid till no Lead, no Frame, and then went away.13 Stones hitt my Father, hitt me, could not tarry without danger of Life. Outer Door shut when they threw Stones. Broke Cieling. They broke Doors open. Stones hit Mother. Wilmot said he would stand by { 420 } him as Long as he had breath. Wilmot asked if he had any Gun. R. said he must get his Gun.
Kezia Richardson. Knox, Matchet and Procter Challenged my Father. Knox challengd him and he said he'd have his Heart and Liver in his Hand. They broke the Door open. It was locked. Mother and father Wounded with a Stone. The Wall broken. Father desired Wilmot to [ . . . ].
John Codman. School Boys Surrounded R's House, throwing Dirt and Stones at the House. They said he had Snapt a Gun at us. Not large Stones. A Man said to me you dont know What provo[cation] the Boys had had. Windows broke when I came. Men did not seem to have any Concern. The Doors open. Girls there, unconcerned. A Stone came from the back of Richardsons House. It could not come from Boys.
Mrs. Ann Caldwel. The Boys were assembled and said they were a going to have a Frolick. More than 50 [ . . . ] The Side of the House battered.
Katherine Winch. My back Yard and R join. I saw the Boys throw Stones after R apprehended Wall broke.
Lee Esqr. I saw R. Windows broke, Codman reproving the Boys. Man from other side way came and said he did not know the Provocation. Only Boys active. Little or no throwing while there, 15 or 20 men in Sight of R. house. I saw no Body in the house. No Passion in any Body.
Willm. Eustice. I saw Boys thro. Stones. Sailor threw short clubb broke the Lead. The Gun went off. 200 men before firing.
Andrew Tewksbury. The Boys said R was an Informer. They threw Limon Peels then Stones. Some Men looked on Boys and they threw faster. Men shew'd no signs of Approbation but laughing. No Glass broke when I got there. 200 or 300 Boys and Men, 20 or 30 men over the Way. Large Stones. None from the House.
Dr. Hill. I was there before Stones thrown, 1 1/2 minutes before Gun fired. The Windows were demolishd. Not broke when I first went. The affair intirely among the Boys. Men not concern'd.
Dr. Perkins. Some Glass broke when I got there. Some Boys threw Carelessly. Not there more than a minute.
Elias Dupee. The boys carried the Pagentry. I tarried till all Glass broke. I spoke to the Boys. A man said the Town will pay for it tis none of my Business. A brick bat thrown out of the Window and a Soldier threw it back after Stones were thrown. I saw a Gun pointed and fired.
{ 421 }
David Pulsifer. R. said if ever a mobb come before my house, call away your Friends. The Girls said Wilmot ask'd R. where his Arms and Ammunition was. Some Men about in the Street. Did not heard any threats, but Matchet, Said they deserved to be hang'd 7 years ago.
<H. Laughton>
Freeman Pulsiver.
A man of universal Bad Character, apt to be prejudiced. @ Danger of its Working tother Way.14
Theocracy of Jewes. @ City of Refuge.15
4 Blackstone [191]. Manslaughter is killing without malice.16
HHPC. 449. Murder and manslaughter. What. A sudden falling out.17
FCL. 273. Injured Person may justify when known Felony intended. 277.18
Keyling 51: The case of turning out of Tavern Room.19 60. The Circumstance to reduce to manslaughter must be some striving.20 2 { 422 } Ray. 1301. Where the Liberty of one Subject is invaded the Liberty of the whole is affected.21
@. Fost. 312. Tooleys case denied.22
2 Inst. 51; Malice must be with a calm deliberate mind.23 57. Manslaughter where it happens on Sudden Shuffling.24
12 Co. Boy with bloody nose.25 Mem. Foster Contra. 295. 326
HHPC 445. A comes to enter, with force.27 485. Killing those who come to [do] Injury to the House.28 486. Come to Take Goods a Trespasser.29
5 Co. 91. Semaines Case, attacking a House.30
11. Co. 84. Bowles Case, a man may call other to defend himself in his house.31
{ 423 }
Hale PC 40, if a man come to enter.”32
HAPC. 72.33
Cro. Car. 537. Cokes Case, killing Bailiff.34 Vid. it was ruled Manslaughter because he might have resisted him without killing him. Ergo were it not he was a Bailiff and broke the House it would be Murder.35
Kelynge. 131. Pulling nose, and running thro with Sword.36
HHPC: 458: had it not known him to be a Bailiff no felony.37
Fos. 298. 99. An officer push'd into room to arrest.38
HHPC: 442.39
Fost. 261. When a Blow aimed at one Person killeth another, but where the first is evil it is murder.40 292: Lutteralls Case.41
HPC. 81. 27.42 83. 39.43
{ 424 }
Fos. 350. 5. Accomplice.44 391. bottom. D[itt]o Plummer Case.45 35346
Haw. P.C.: 193: Libel whats provoking.47
A Man's house his Castle a Doc[trine] highly approved.
The Pagantry must not be considered as Lawful.
A Crime of this Sort not to be presumed. @ R. must Excuse.
A man no[t] obliged to fly from his own House. @ When the assaliant is in his House.
Snider was among Trespassers and therefore not murder to kill him.
HHPC: 441. Woman killd by throwing a Stone.48
439. 440. Accomplice.49
New Trials50
5 Bac. 244.51
{ 425 }
Str. 1106.52 1142. Evidence on both sides.53 887.54
May be granted when Defendant found guilty.
Str. 104. 968. 1106.55
Bla. Com. 354. The Jury have an unquestionable right to determine on all the Circumstances and to find a general verdict.56 2. Hal. 310.57
1. In Robert Treat Paine's hand. Paine Law Notes. As usual in Paine's legal MSS, the handwriting is hasty, careless, and often cryptic, the punctuation chaotic, and the meaning, therefore, sometimes obscure. Some editorial regularization has had to be imposed to make the notes intelligible; doubtless some misreadings remain.
2. That is, “Perjury, Perjury.”
3. Either the witness saw the boys throw at the window, or saw Richardson and Wilmot through the window.
4. Dr. Thomas Young (1731–1777), one of the patriot leaders. See Edes, “Memoir of Dr. Thomas Young,” 11 Col. Soc. Mass., Pubns. 2 (1910).
5. William Blackstone, Analysis of the Laws of England 119 (Dublin, 5th edn., 1766):
Manslaughter is the unlawful Killing of another; without Malice, express or implied. This is Felony, but within Clergy; except in the Case of Stabbing.” “Murder is when a Person of sound Memory and Discretion, unlawfully killeth any reasonable Creature, in Being, and under the King's Peace; with Malice aforethought, either express or implied. This is Felony, without Clergy; punished with speedy Death, and Hanging in Chains, or Dissection.”
6. Hale, Pleas of the Crown (Summary) 31: “But if the act be unlawful, then death ensuing, Manslaughter or Murder.” Id. at 32: “So that an unlawful act, without an ill intent, Manslaughter; with an ill intent, Murder.”
7. Hale, Pleas of the Crown (Summary) 44: “Malice implied in the manner of doing. . . . If a Man do an act that apparently must introduce harm, and Death ensue. . . . But note, that if it were with an intention to do harm, then Murder; if without such intention, Manslaughter.”
8. Hale, Pleas of the Crown (Summary) 45: “For an Intention of Evil, though not against a particular Person, makes a Malice.”
9. Foster, Crown Cases 255: “In every Charge of Murder, the Fact of Killing being first proved, all the Circumstances of Accident, Necessity, or Infirmity are to be satisfactorily proved by the Prisoner, unless they arise out of the Evidence produced against Him: for the Law presumeth the Fact to have been founded in Malice, until the Contrary appeareth.”
10. Foster, Crown Cases 291: “And it ought to be remembered, that in all other Cases of Homicide upon slight Provocation, if it may be reasonably collected from the Weapon made use of, or from any other Circumstance, that the Party intended to Kill, or to do some great bodily Harm, such Homicide will be Murder.”
11. 1 Hale, Pleas of the Crown 451: “Malice in fact is a deliberate intention of doing some corporal harm to the person of another. . . . Malice in fact is a deliberate intention of doing any bodily harm to another, whereunto by law he is not authorized.”
12. Rex v. Oneby, 2 Ld. Raym. 1485, 1489, 92 Eng. Rep. 465, 468 (K.B. 1727): “Malice express, is a design formed of taking away another man's life, or of doing some mischief to another, in the execution of which design death ensues.”
13. That is, she remained until the window lead and frame were destroyed. The Knox referred to is Thomas Knox. See indictment, SF 102009, where he is listed as a witness.
14. Paine apparently used “@” to denote counterarguments or answers to points made by his opponents.
15. Numbers 35:14–33:
“Ye shall give three cities on this side Jordan, and three cities shall ye give in the land of Canaan, which shall be cities of refuge. These six cities shall be a refuge both for the children of Israel, and for the stranger, and for the sojourner among them: that every one that killeth any person unawares may flee thither. . . . Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses: but one witness shall not testify against any person to cause him to die. Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death. And ye shall take no satisfaction for him that is fled to the city of his refuge, that he should come again to dwell in the land, until the death of the priest. So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.”
A similar reference appears in Rex v. Goodwin (SCJ, Falmouth, 1772), Adams Papers, Microfilms, Reel No. 185. See also No. 63, text at note 8165, and No. 64, text at note 14135
16. See also note 5121 above.
17. 1 Hale, Pleas of the Crown 449: “Murder and manslaughter differ not in the kind or nature of the offense, but only in the degree, the former being the killing of a man of malice prepense, the latter upon a sudden provocation and falling out.”
18. Foster, Crown Cases 273: “In the Case of Justifiable Self-Defence the injured Party may repel Force with Force in Defence of his Person, Habitation, or Property, against one who manifestly intendeth and endeavoureth with Violence or Surprize to commit a known Felony upon either.” At 277, Foster discusses the difference between manslaughter and excusable self-defense.
19. Ford's Case, Kelyng 51, 84 Eng. Rep. 1078 (K.B. temp. Hyde, C.J.): killing a man while defending one's right to possession of a room in a tavern held justifiable.
20. Lord Morley's Case, Kelyng 60–61, 84 Eng. Rep. 1082 (K.B. temp. Kelyng, C. J.): “[W]e held that such a provocation as must take off the killing of a man from Murder to be but Manslaughter, must be some open Violence, or actual striving with, or striking one another.”
21. Reg. v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352 (Q.B. 1710): “[W]here the liberty of the subject is invaded, it is a provocation to all the subjects of England.”
22. Foster, Crown Cases 312: “The Doctrine advanced in the Case of The Queen against Tooly and Others hath, I conceive, carried the Law in favour of Private Persons Officiously interposing farther than sound Reason founded in the Principles of true Policy will warrant.”
23. Probably 3 Coke, Institutes *51: “Malice prepensed is, when one compasseth to kill, wound, or beat another, and doth it sedato animo.”
24. Probably 3 Coke, Institutes *57: “Homicide is called chancemedley or chancemelle, for that it is done by chance (without premeditation) upon a sudden brawle, shuffling, or contention.” Id. at *55: “There is no difference between murder, and manslaughter; but that the one is upon malice forethought, and the other upon a sudden occasion: and therefore is called chancemedley.”
25. Rex v. Royley, Cro. Jac. 296, 79 Eng. Rep. 254, 12 Co. Rep. 87, 77 Eng. Rep. 1364 (K.B. 1612). See note 20106 above.
26. Foster, Crown Cases 295: “[T]he Accident happened by a single Stroke with a Cudgel not likely to destroy and . . . Death did not immediately ensue. . . . I observe that Lord Raymond layeth great Stress on this Circumstance, that the Stroke was with a Cudgel not likely to Kill.” Id. at 293 is a discussion of Rex v. Reason & Tranter, 1 Str. 499, 93 Eng. Rep. 659 (K.B. 1722). See note 21107 above.
27. 1 Hale, Pleas of the Crown 445. See note 591 above.
28. 1 Hale, Pleas of the Crown 485, treats “what the offence is in killing him, that takes the goods, or doth injury to the house or possession of another.” See also note 14100 above.
29. 1 Hale, Pleas of the Crown 486: “If a man come to take my goods as a trespasser, I may justify the beating of him in defence of my goods, as hath been said, but if I kill him, it is manslaughter. But if a man come to rob me, or take my goods as a felon, and in my resistance of his attempt I kill him, it is me defendendo at least, and in some cases not so much.”
30. Semayne v. Gresham, 5 Co. Rep. 91, 77 Eng. Rep. 194 (K.B. 1605). See note 692 above.
31. Bowles v. Bury, 11 Co. Rep. 79, 84, 77 Eng. Rep. 1252, 1260 (K.B. 1605). The reference appears to be an inadvertence for 11 Co. Rep. at 82, 77 Eng. Rep. at 1258. See note 793 above.
32. Hale, Pleas of the Crown (Summary) 40: “If one come to enter into my House, claiming Title, and I kill him, Manslaughter. If A. enter wrongfully into the House of B. riotously and forcibly, B. and others endeavour to fire the house, A kills, Manslaughter.” See also note 1197 above.
33. Apparently 1 Hawkins, Pleas of the Crown 72, which discusses justifiable homicide.
34. Rex v. Cook, Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1639). See text at note 1298 above.
35. The two preceding sentences were inserted in the MS in a very small hand, not Paine's. They refer to the court's ruling that the killing was not excusable, but “manslaughter, because he seeing and knowing him, shot at him voluntarily, and slew him.” Cro. Car. at 539, 79 Eng. Rep. at 1064. As to the contention that if it were not for the fact of the house-breaking, the killing, being voluntary, would be murder, compare 1 Hale, Pleas of the Crown 485. See text at note 14100 above.
36. Reg. v. Mawgridge, Kelyng 119, 84 Eng. Rep. 1107 (Q.B. 1707). See note 16102 above. The reference appears to be an inadvertence for Kelyng 135, 84 Eng. Rep. 1114.
37. 1 Hale, Pleas of the Crown 458. See note 1399 above.
38. Foster, Crown Cases 298–299. See note 19105 above.
39. 1 Hale, Pleas of the Crown 442. See note 26112 above.
40. Foster, Crown Cases 261. See note 25111 above.
41. Rex v. Reason & Tranter, 1 Str. 499, 93 Eng. Rep. 659 (K.B. 1722), discussed in Foster, Crown Cases 292. See note 21107 above.
42. 1 Hawkins, Pleas of the Crown 81, §27:
“And it hath been adjudged, That even upon a sudden Quarrel, if a Man be so far provoked by any bare Words or Gestures of another, as to make a push at him with a Sword, or to strike at him with any other such Weapon as manifestly endangers his Life, before the other's Sword is drawn, and thereupon a Fight ensue, and he who made such Assault kill the other, he is guilty of Murder; because that by assaulting the other in such an outrageous Manner, without giving him an Opportunity to defend himself, he shewed that he intended not to fight with him, but to kill him, which violent Revenge is no more excused by such a slight Provocation, than if there had been none at all.”
43. 1 Hawkins, Pleas of the Crown 83, §39:
“Also it seems, That he, who upon a sudden Provocation executeth his Revenge in such a cruel Manner, as shews a cruel and deliberate Intent to do Mischief, is guilty of Murder, if Death ensue; as where the Keeper of a Park, finding a Boy stealing Wood, tied him to a Horse's Tail and beat him, whereupon the Horse ran away and killed him.”
44. Foster, Crown Cases 350, 355, treats the law of accomplices and abettors.
45. Foster, Crown Cases 351–352, discusses Rex v. Plummer, Kelyng 109, 84 Eng. Rep. 1103 (K.B. 1701), in which the court held that the shooting of A by B, where both were members of the same gang attempting over the physical opposition of a Crown officer to export English wool contrary to law, was not murder in C (another gang member), it not having been found that the shot was discharged against the officer.
46. Foster, Crown Cases 353–354:
“A general Resolution against All Opposers, whether such Resolution appeareth upon Evidence to have been Actually and Explicitly entered into by the Confederates, or may be reasonably collected from their Number, Arms, or Behaviour at or before the Scene of Action, such Resolutions so proved have always been considered as strong Ingredients in Cases of this kind. And in Cases of Homicide committed in consequence of them, every Person present in the Sense of the Law when the Homicide hath been Committed, hath been involved in the Guilt of Him that gave the mortal Blow.”
47. 1 Hawkins, Pleas of the Crown 193: “[S]ince the plain Meaning of such Scandal as is expressed by Signs or Pictures, is as obvious to common Sense, and as easily understood by every common Capacity, and altogether as provoking, as that which is expressed by Writing or Printing, why should it not be equally criminal?” This citation indicates that the defense argued that the criminal nature of the sign or “show” at Lillie's rendered the whole affair unlawful and that Richardson had been justified in attempting to destroy it.
48. 1 Hale, Pleas of the Crown 441, setting out Mansell and Herbert's Case, Dyer 128, 73 Eng. Rep. 279 (1556–1557), concerning an attempt by a “great multitude of men” to take goods out of a house. A woman who came out of the house unarmed was struck and killed by a rock thrown by one of the multitude at another. Held: Murder (according to the headnote—the report itself is less clear).
49. 1 Hale, Pleas of the Crown 439–440, a discussion of accessories to felony.
50. The MS page on which the immediately preceding citations appear is left three quarters blank. On the next page is set out (with some alterations) Isabella's speech from Shakespeare, Measure for Measure, Act II, scene 2, commencing “Could great men thunder.” On the page after that, upside down, appears the material on new trials ending Doc. II. The rest of that MS page is blank, and the following page commences with “SC. Augt. 1770.” (See Doc. III.) What role, if any, Shakespeare's lines played in the proceedings, the editors cannot presently say.
51. 5 Bacon, Abridgment 244, concerning new trials, which cites the cases in the two footnotes next following. For a discussion of Bacon's authorities, see No. 12, text at notes 50–55.
52. Smith dem. Dormer v. Parkhurst et al., 2 Str. 1105, 1106, 93 Eng. Rep. 1061 (K.B. 1739): “[T]he point upon which the new trial in this case was denied was, because they said the evidence was doubtful, and in such a case a verdict at bar ought to stand,” even though the finding had been against the weight of the evidence.
53. Ashley v. Ashley, 2 Str. 1142, 93 Eng. Rep. 1088 (K.B. 1741):
“The Judge who tried this cause (which was upon a promisory note for £5000 which the defendant insisted was forged) certified that the weight of the evidence was with the plaintiff, and he thought the jury would find for the plaintiff; but they found for the defendant. Et per curiam, As there was evidence on the part of the defendant, the jury are the proper judges which scale preponderates. It cannot be said to be a verdict against evidence, and therefore we will grant no new Trial.”
See also Smith v. Huggins et al., 2 Str. 1142, 93 Eng. Rep. 1089 (K.B. 1741), decided the day after Ashley v. Ashley: “[A] new trial denied; though there was but a weak evidence for the plaintiff, and the Chief Justice summed it up strongly for the defendant.”
54. Rex v. Huggins, 2 Str. 882, 887, 93 Eng. Rep. 915, 918 (K.B. 1731), reported somewhat more fully, 2 Ld. Raym. 1574, 92 Eng. Rep. 518. This was an indictment against the warden of the Fleet Prison for the murder of a prisoner by a servant of the deputy warden, who had confined the deceased “six weeks without fire, chamber-pot or close-stool, the walls being damp and unwholesome, and the room built over the common shore.” The jury found specially: that the servant had kept the deceased as alleged, whereof he had died; that Huggins knew the condition of the room at least fifteen days before the deceased's death, having seen him there and then having turned away. But Huggins' guilt or innocence they left to the court. Held: No finding of Huggins' consent to the deputy's acts, the circumstances of Huggins' presence
“were they ever so strong an evidence of consent, they will not be sufficient for us to ground a judgment upon: we are to determine upon facts, and not on evidence of facts. . . . It would be the most dangerous thing in the world, if we should once give into the doctrine of inferring facts from evidence; which is the proper business of a jury, and not of the court.”
2 Str. at 886, 93 Eng. Rep. at 917–918, per Lord Raymond, C.J. The Crown lawyers argued that inasmuch as the courts, since Rex v. Oneby, 2 Ld. Raym. 1485, 92 Eng. Rep. 465 (K.B. 1727), note 12128 above, had not required the jury to find malice, the judges could as well adjudge the consent as a matter of law. This, Lord Raymond rejected, noting that “malice is matter of law arising from a legal construction of the act, . . . but consent is an act of the mind.” 2 Str. at 886, 93 Eng. Rep. at 918. Finally, the Crown contended that the verdict was too uncertain to found a judgment upon, and the court should therefore require a new trial. Noting first that “no instance could be produced where, in a criminal case, it was ever done for a fault in the verdict itself,” Lord Raymond went on to hold the verdict good.
“There is no incertainty as to the facts that are found: the only fault is, that there are not such facts found as will amount to murder. The consequence of which is, that the defendant is Not guilty of murder; and it would be endless to send it back to a jury, till they find facts enough to make it murder; besides its being contrary to law, in exposing a man to a second hazard of life.” Id. at 887, 93 Eng. Rep. at 918.
55. See notes 20193, 21194, below, and 52168 above.
56. 4 Blackstone, Commentaries *354–355:
“But an open verdict may be either general, guilty, or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. That is where they doubt the matter of law, and therefore chuse to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proper so to hazard a breach of their oaths. . . . Yet in many instances, where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king's bench. . . . But there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first.”
57. 2 Hale, Pleas of the Crown 309–310:
“But what if a jury give a verdict against all reason, convicting or acquitting a person indicted against all evidence, what shall be done? I say, if the jury will convict a man against or without evidence, and against the direction or opinion of the court, the court hath this salve[,] to reprieve the person convict before judgment, and to acquaint the king, and certify for his pardon.”

Docno: ADMS-05-02-02-0010-0001-0004

Author: Paine, Robert Treat
Date: 1770-09

Paine's Minutes of the Proceedings on the Motion for a New Trial1

Suffolk Superior Court, Boston, September 1770
SC. Augt. [Term] 1770
Rex v. Richardson
Motion for new Trial.
Deming. Foreman.2 Mr. Lothrop was satisfied as to Fact, but not Law. Mr. Clap not so fully satisfied as to Law. I told him the Court knew the Law. We all agreed about 1/2 an hour before we came in on Rich[ardson].
Lothrop. I did not fall in so soon as some, for I thought the time might be as well spent in Argument. Jury in Gen[eral] thought if the verdict was not agreeable to Law the Court would not receive it. It was a motive with me.3
I heard some Body say as we passed up stairs Damn him don't bring it in Manslaughter.
Clap. At first going out I was not so clear as afterwards, for the { 427 } Reason offered, such as its being in the Day.4 Something was said that the Court would not receive it if not right, but it did not weigh with me.
Withington. The Rabble as we were going out said hang the Dog hang him.5
Stoddard. I heard no such thing.
Leveret. A great hiddalo. But I heard northing.
John Smith. As I passed and [turn'd?] the Stairs down the Stairs some said hang him no Manslaughter, but no Body minded it.
Elisha Gardner. I heard a tumultuous noise, no Manslaughter but Murder, it appeared with no Connections to the Jury.
Jona. Ellis. I heard some Body cry out damn him hang him Murder no Manslaughter. It seemed down stairs. Not mentioned in the Jury Room.
Jos. Hawes. As the Jury were going out I heard some Body say hang him a dog, but from whom I dont know. There was some such talk that if the Court did not like the Verdict they would not receive it.
Ephm. Pratt. There was a noise but I heard no Words.
Ebe. Adams. I heard a Noise below but heard no Body speak so as to be understood. Something like hang him. I did not take it to [be] directed to the Jury.
Mr. Usher. Keeper of the Jury. Many People below till 12 or 1 oClock. I heard no Cry of hang 'em &c.
Cro. 778. Wats & Braine. Jury sent out again, 2 dissenting on Ex[aminatio]n.6
State Tri. 417. Vol. X. Ashley v. Simons the Jew; Jury mistook their Verdict.
5 Bac. 243. SC.7
{ 428 }
Cr. El. 189. A Witness ex[amine]d again by Jury.8
Trial pr. Pais. A paper delivered to the Jury by Stranger. 224.9
225. A Breviate delivered.10
222. If the Party says to the Jury 'my Case is Clear' it is new Evidence.11
Styles 383. The del[iverin]g a Breviate to the Jury before Tryal, mistryal: Tayler v. Webb.12
1 Vent. 124. Duke Richmond v. Wise. If any of Party say I hope youll find for Plaintiff [tis]mistryal.13
Vin. Tryal 452. §25. One said to a Jury he'd take care what for it was better for the Bishop than Duke.14
{ 429 }
[11] Mod. 118. Lady Herbert vs. Shaw. A Letter wrote to Jury to attend, to consider the Plaintiff was a poor man, mistrial.15
Burr. 390. Bright vs. Eynon.16
Foster 266. A Breviate d[elivere]d to a Juryman.17
T. Jones 163. Rex v. Smith. Verdicts vs. Evidence.18
3 Keeble 525. New Tryal, SC.19
Str. 104,20 968,21 1102.22
1 L. Ray. 62, 63.23
{ 430 }
2 HPC.24
5 Bac. 292. Ld. Vaghn Law denied.25
2 Ld. R. 1494 Onebys Case.26
12 Mod. 336. If Judge in his Conscience is satisfied the Cause deserves a new Tryal.27
CL: 228. Jury may give general verdict.28
4 Black. 354. Same vid.29
2 Hale 310. Same.30
Str. 1142.31
3 Black. 375.32
Fos. 255.33
1. In Paine's hand. Paine Law Notes. See note 50166 above.
2.  [T]he Jurors were inquired of the Foundation of their Verdict. The Foreman, with a sullen Pride of Revenge, replied, 'that he was not obliged to give any Reasons of his Conduct.'” Oliver, Origin and Progress 86–87. The jurors, all of whom testified, were Jonathan Deming (foreman), Thomas Lothrop, Seth Clap, Philip Withington, Jeremy Stoddard, Israel Everet, John Smith, Elisha Gardner, Jonathan Ellis, Joseph Hawes, Ephraim Pratt, and Ebenezer Adams. Min. Bk. 91, SCJ Suffolk, Aug. 1770.
3. “One of the Jurors declared, that he thought him innocent, and had persisted all Night in that Opinion, against the united Sentiment of the other eleven; but in the Morning, after a tedious whole Nights Fatigue, his Bretheren overperswaded him to unite with them, by urging this Argument upon him, vizt. 'that the Court had delivered their Opinion, in Law, that the Prisoner was innocent, and that his Life would be saved; therefore, that it was not worth while to stand out any longer.' These Arguments alone, he said, prevailed with him to join with the others in their Verdict.”Oliver, Origin and Progress 87.
4. “One of them said, 'that he should have acquitted the Prisoner, had the killing happened in the Night instead of the Day.'” Oliver Origin and Progress 87.
5. “Some of them acknowledged, that, as they past thro' the Mob, from the Court to their Apartment, they were called upon to bring the Prisoner in guilty.” Oliver, Origin and Progress 87.
6. Wats v. Brains, Cro. Eliz. 778–779, 78 Eng. Rep. 1009 (Q.B. 1601): On an appeal of murder, “notwithstanding the Evidence was pregnant against the defendant,” eight, and then ten of the jurors voted “not guilty.” The two others proposed that the jury bring in a “not guilty” verdict on condition that if the court “disliked thereof,” the verdict would be changed to “guilty.” When, however, the foreman pronounced “not guilty” the court, “much misliking thereof, being contrary to their direction,” polled the jury, discovered the scheme, sent the jury out again, received a verdict of guilty, and fined or reprimanded all the jurors.
7. Rex v. Simonds, 5 Bacon, Abridgment 243–244 (Unreported, K.B. 1752):
“The Defendant was indicted for having put some Ducats into the Pocket of the Prosecutor with an Intent to charge him with Felony. The Jury found the Defendant guilty generally: But upon a Motion for a new Trial Affidavits of all the Jurors were produced, in which they swore that they only intended to find him guilty of the Fact of having put the Ducats into the Prosecutor's Pocket but not of the Intent; and Foster, J. before whom the Indictment was tried reported that his Direction to the Jury was, that in Case they did not think the Defendant guilty of the Intent as well as of the Fact of having put the Ducats into the Prosecutor's Pocket they ought to acquit him. A new Trial was granted; and by Lee Ch. J. we do not grant a new Trial in this Case on the Account of any after Thought of the Jurors, for the doing of this might be a very bad Precedent; but because the Verdict was contrary to the Direction of the Judge in a Matter of Law. By Denison J. if the Verdict had been as the Jury intended it, that the Defendant was guilty of the Fact but not of the Intent there must have been a Venire facias de Novo for it would have been an incompleat Verdict.”
The case was also reported in 10 State Trials 411, sub nom. Ashley v. Simons the Jew. (Ashley was the prosecutor.) The report sets out interesting background information, the indictment, the affidavits of the individual jurors, the judge's additional charge, and the outcome of the second trial (12 July 1752—acquitted).
8. Probably Metcalfe v. Deane, Cro. Eliz. 189, 78 Eng. Rep. 445 (Q.B. 1590): The jury, having withdrawn, reexamined one of the defendant's witnesses, and then returned a defendant's verdict. Held: verdict not good, venire facias de novo issued.
9. Duncombe, Trials per Pais 224, reports Taylor v. Webb [Style 383, 82 Eng. Rep. 797 (K.B. 1653)]: verdict set aside because jury received writings “after Evidence,” notwithstanding affidavit by foreman that the jury made no use of the writings in reaching the verdict.
10. Duncombe, Trials per Pais 225, refers to YB 11 Hen. 4, 18: delivery of brief of evidence to jury, even though it contained no more than was proved in court, avoids the verdict.
11. Duncombe, Trials per Pais 222: “If one of the Parties say to the Jury after they are gone from the Bar, You are weak Men, it is as clear of my Side as the Nose in a Man's Face; this is new Evidence, for his Affirmation may very much perswade the Jury and therefore shall quash the Verdict.” This can refer only to the litigant's forensic skill, and not to the introduction of new evidence, for a party was incompetent to testify.
12. See note 9182above.
13. The Duke of Richmond v. Wise, I Ventris 124, 125, 86 Eng. Rep. 86, (K.B. 1672):
“[I]f any of the Parties, their Attorneys or Sollicitors speak any thing to the Jury, before they are agreed relating to the Cause, (viz.) That it is a clear Cause, or I hope You will find for such an one, or the like, and they find accordingly, it shall avoid the Verdict; but if words of Salutation, or the like pass between them, (as was endeavoured to be proved in this Case) they shall not.”
14. 21 Viner, Abridgment 452–453, tit. Trial, §25: Court being held out of doors in a trial between the Bishop of L. and the Earl of Kent, a “Tempest of Thunder and Lightning” drove one of the jurors into a house, “where diverse said to him that he take Care what he did, for the Matter was better for the Earl of Kent than for the Bishop; and pray'd him to drink with them, and so he did.” After verdict for the Bishop the case was argued in the Exchequer Chamber, where “the best Opinion was that Fine [of the Juror, for drinking]shall be made, and the Verdict good, and not void.”
15. Lady Herbert v. Shaw, 11 Mod. 118, 88 Eng. Rep. 937 (Q.B. 1707): Plaintiff's father, the Duke of Leeds, wrote to each juror requesting his appearance at the trial, saying: “Which I shall take as a great Obligation, particularly from your self, and shall be glad of an Occasion to shew how much I am, Sir, your Humble Servant.” On defendant's motion for new trial, held, motion denied: defendant had notice of the letter long before trial and should have raised the issue sooner. Powell, J. referred to an unidentified case in the Common Pleas “where a Stranger writ to a Juryman to consider that the Plaintiff was a poor Man; for which a new Trial was granted.”
16. Bright, Executor v. Eynon, 1 Burr. 390, 397, 97 Eng. Rep. 365, 369 (K.B. 1757): New trial granted where jury drew the “wrong conclusion from facts admitted on both sides.”
17. Foster, Crown Cases 266, reports a case in which a coroner's jury found that a man run over by a wagon had been killed by the wheel only, and not the horses and cart too. Held: neither the higher court nor the coroner “can oblige the Jury to conclude otherwise than They have done.” The page contains no mention of the breviate; see, however, text at notes 9, 10, 12182, 183, 185, above; Paine, therefore, may possibly be recording two separate references.
18. Rex v. Smith, T. Jones 163, 84 Eng. Rep. 1197 (K.B. 1682): new trial awarded where, on information for perjury, “an obstinate Jury against the Direction of the Judge, found the Defendant guilty.” Dolbin, J., cited precedents where verdicts against the evidence were set aside.
19. Rex v. Cornelius, 3 Keble 525, 84 Eng. Rep. 858 (K.B. 1676): conviction of perjury for swearing that S. “was at a conventicle, who was not; but it appearing the defendant never made any such oath, and that the foreman was owner of the barn [where the conventicle was held], and challenged, and yet sworn on the jury; which per Curiam is a great challenge to the favor; and a new trial was awarded.”
20. Rex v. Bennett, 1 Str. 101, 105, 93 Eng. Rep. 412, 414 (K.B. 1718): Information in nature of quo warranto; after verdict for defendant against evidence, held (after consulting all the other judges), equal division, therefore no new trial.
21. Rex v. Gibson, 2 Str. 968, 93 Eng. Rep. 972 (K.B. 1734): Defendant must be in court to move for new trial.
22. Rex v. Armstrong, 2 Str. 1102, 93 Eng. Rep. 1059 (K.B. 1739): After judgment signed, defendant may not move for new trial.
23. Smith v. Frampton, 1 Ld. Raym. 62, 63, 91 Eng. Rep. 938 (K.B. 1695): Action for negligent keeping of fire resulting in plaintiff's house being burnt; verdict for defendant; motion for new trial for verdict's being against evidence. Held: “This being a case of hardship, and the jurors being judges of the fact, no new trial should be granted, although Holt chief justice, before whom it was tried, was dissatisfied with the verdict.”
24. This may be 2 Hawkins, Pleas of the Crown 442:
“However it is settled, That the Court cannot set aside a Verdict which acquits a Defendant of a Prosecution properly criminal, as it seems that they may a Verdict that convicts him for having been given contrary to Evidence, and the Directions of the Judge, or any Verdict whatever for a Mistrial.”
The minute may also refer to a page in 2 Hale, Pleas of the Crown, although that was generally cited as “HHPC.”
25. 5 Bacon, Abridgment 292:
“It is indeed said in one Book [citing Bushel's Case, Vaughan 135, 147, 124 Eng. Rep. 1006, 1012 (C.P. 1670)], that the Jurors are not obliged to ground their Verdict upon the Evidence given in Court; for that this may be grounded upon their own personal Knowledge. But no Authority is cited in Support of this Doctrine, and the contrary Opinion to be the better one. . . . It may moreover be very fairly inferred, from the constant Practice of granting a new Trial because a Verdict is contrary to Evidence, that the Jury ought to ground their Verdict intirely upon the Evidence given in Court; for if they have a Power to ground it upon any other Evidence, how unreasonable would it be for the Judge before whom the Cause was tried, who must always be a Stranger to what did not appear in Court, to report that the Verdict is contrary to Evidence, or for the Court to set it aside as being so.”
26. Rex v. Oneby, 2 Ld. Raym. 1485, 1494, 92 Eng. Rep. 465, 471 (K.B. 1727): “And the jury may, if they think proper, give a general verdict, either that the prisoner is guilty of murder or of manslaughter.”
27. Anon., 12 Mod. 336, 88 Eng. Rep. 1362 (K.B. 1699), per Holt, C.J.: “In granting a new Trial we ought not altogether to rely on the Certificate of the Judge who tried the Cause, but upon the Reason of the Thing; and sometimes I would grant a new Trial against the Certificate of a Judge, if in my Judgment and Conscience the Matter deserves a Re-examination.”
28. 1 Coke, Institutes *228b: “Although the Jurie, if they will take upon them (as Littleton here saith) the knowledge of the Law, may give a general verdict, yet it is dangerous for them so to do.”
29. 4 Blackstone, Commentaries *354. For text, see note 56172 above.
30. 2 Hale, Pleas of the Crown 310. For text, see note 57173 above.
31. Ashley v. Ashley, 2 Str. 1142, 93 Eng. Rep. 1088 (K.B. 1741). For holding, see note 53169 above.
32. 3 Blackstone, Commentaries *375, mentions “the grounds, upon which such new trials are every day awarded, viz. that the verdict was given without, or contrary to, evidence.”
33. Foster, Crown Cases 255. For text, see note 9125 above. Also:
“In every Case where the Point turneth upon the Question, Whether the Homicide was committed Wilfully and Malitiously, or under Circumstances Justifying, Excusing, or Alleviating; the Matter of Fact, viz. whether the Facts alledged by Way of Justification, Excuse, or Alleviation are True, is the proper and only Province of the Jury. But whether upon a Supposition of the Truth of Facts such Homicide be Justified, Excused, or Alleviated, must be submitted to the Judgment of the Court.”

Docno: ADMS-05-02-02-0010-0002-0001

Editorial Note

Friction between the Boston garrison troops and the populace produced considerable heat even before the so-called Massacre of 5 March 1770. The present case grew out of one of the more notable episodes, a scuffle in the Boston market on 13 July 1769 between Private John Riley of the Fourteenth Regiment and Jonathan Winship, a Cambridge victualer.
Mystery surrounds the precise origin of die fight, although a deposition by Corporal Samuel Heale of the Fourteenth Regiment (taken almost a year later, and for purposes other than use in court) states that Riley attempted to rescue a boy who was being beaten by a man in the market. According to Heale, first the man, and then Winship started fights with Riley.1
In any event, Winship, the loser, swore out a complaint before Justice of the Peace Edmund Quincy, who promptly issued a warrant on the strength of which Boston constable Peter Barbour brought Riley before the justice. The complaint was read, Riley pleaded guilty, and Quincy, after hearing other testimony, fined him five shillings and costs of eight shillings threepence, sentence being suspended for one day on the undertaking of John Phillips, Riley's sergeant, to be responsible for payment or to see Riley forthcoming on 14 July.2 Riley duly appeared the next day, accompanied by Sergeant Phillips, Corporal Alexander Findley, and Private Jonathan Stevenson, all of the Fourteenth Regiment.3 Because Riley was unable or unwilling to pay his fine, Justice Quincy drew up a mittimus, an order directing Barbour to commit Riley to jail.
Now the stories differ. Barbour testified later that Riley balked and that someone sent for Lieutenant Alexander Ross of the Fourteenth Regiment. On Ross' arrival, and in his presence, a group of soldiers took Riley out of { 432 } the constable's custody4 and hustled him away. Ross, in his later deposition, gave a conflicting version. According to him, Captain Charles Fordyce, Riley's commanding officer, had asked him to intervene with Justice Quincy, whom Ross knew, in order to “compound” or settle (“fix” is a term with more accurate Massachusetts connotations) Riley's case. When Ross arrived at Quincy's, he found the justice making out the mittimus. After a vain attempt to persuade Quincy to lessen the sentence, Ross began (he said) to leave. When Riley tried to follow, Ross “told him in a very peremptory manner by no means to do so.” Riley persisted, was seized by the constable and others, and fought his way free, “notwithstanding my calling to him several times and as long as I could be heard for [i.e. over] the Crowd not to do so.” Ross then pushed through the mob and ordered the soldiers to their barracks.5
The incident created a furor; William Palfrey even reported it to John Wilkes.6 And the day after the riot, the House of Representatives, having heard Barbour and Jeremiah Belknap (who had tried to help Barbour retake Riley), appointed “a Committee to make further Enquiry into the Circumstances . . . and report to the House a State of the Facts,” the same to be then transmitted to Denys de Berdt, Provincial Agent in London, presumably for propaganda purposes.7 The depositions which were taken on 24 July 1769 and printed as part of the “Journal of the Times” are the best known account of the fracas.8
A week after the rescue (the technical term for the unlawful taking of a prisoner out of the custody of an officer) Ross, Sergeant Phillips, Corporal Findley, Corporals William Dundass, Thomas Thornley, and John Arnold, and Privates John Lane and Francis Jackson were called before Boston Justices of the Peace Richard Dana, John Hill, and John Ruddock. After a tongue lashing from Dana, Phillips and Ross were discharged, and the others bound over for the grand jury.9
At the November 1769 adjournment of the August 1769 sitting of the Suffolk Superior Court, Findley, Dundass, Thornley, Arnold, and Jackson were indicted, as was Ross, for assaulting Barbour, for rescuing Riley, for assaulting some of the townspeople who attempted to aid Barbour, and for breach of the peace.10
{ 433 }
The trial took place, apparently, in the middle of December 1769. Internal evidence in the Adams Trial Minutes, below, indicates that Robert Auchmuty was Ross' counsel; Adams' role is uncertain. He may have been participating for the Crown, although his full minutes of the prosecution evidence suggest that he may have been acting for the defense.11
As reported by Adams, the case against the soldiers seems strong, although that against Ross is not so clear-cut. The central issue seems to have been whether or not Ross had participated in the rescue, either directly, by encouraging Riley and the others, or indirectly, by failing to restrain them. On that, the testimony seems uncertain, much of the confusion apparently stemming from the words “go” and “don't go.” Did Ross, when he said “go,” mean “make good your escape,” or did he mean “go to jail”? From the testimony as Adams recorded it, one cannot tell.
The jury did not doubt: it found all the defendants but Dundass guilty, whereupon the court fined each soldier £7 and ordered him to post bond for good behavior.12 Ross' “Lawyer Pleaded an Arrest of Judgment, and was in hopes of bringing on a Fresh Tryal; the former was granted, but I was Bound over for my Appearance.”13 But the court did not sit again until mid-March 1770. By then the “winter of discontent” had bubbled into blood. With Richardson, Captain Preston, the soldiers, and the customs employees on their hands, the judges had neither encouragement nor inclination to invoke the unusual remedy of a new trial for a British officer convicted of interfering with the judicial process. Ross' motion was denied, and he was fined £20 and costs.14
1. Deposition of Samuel Heale, 25 Aug. 1770, 12 Gay Transcripts 51, MHi. This deposition, like others referred to below, was taken as part of what was apparently an effort to collect as much evidence as possible of the antimilitary bias of the Bostonians, and to counter the propaganda effect of the Massacre. See generally the editorial note to Nos. 63 and 64. The ex parte nature of the depositions and the attendant lack of cross-examination seriously reduce their evidentiary value.
2. SF 101575. The recognizance describes Phillips as being of “Capt. Fordice's Company 29th Regt.” SF 89147. Charles Fordyce was, however, a captain in the 14th Regiment. Army List 1769 68. See also deposition of Charles Fordyce, 25 Aug. 1770, 12 Gay Transcripts 45–47, MHi, and deposition of John Phillips, 25 Aug. 1770, id. at 48–50.
3. Deposition of Jonathan Stevenson, 25 Aug. 1770, 12 Gay Transcripts 53–54, MHi.
4. See generally, Adams' Trial Minutes, below. Ross (1742–1827) was to have a distinguished military career, serving as an aide-de-camp to General Lord Cornwallis, representing him in the Yorktown surrender negotiations. He became a general in 1812. DNB; Charles Ross, Correspondence of Charles, First Marquis Cornwallis 76 note (London, 1859).
5. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40–42, MHi.
6. Palfrey to Wilkes, 26 July 1769, printed in Ford, “John Wilkes and Boston,” 47 MHS, Procs. 190, 205–206 (1913–1914).
7. Mass., House Jour. 1769, 83 (session of 15 July 1769).
9. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40, 42, MHi. See also deposition of Charles Fordyce, 25 Aug. 1770, id. at 45–47.
10. Ross says the grand jury brought in its true bill in September. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40, 43, MHi. But the indictment, SF 101575, is dated 21 Nov. 1769. It was drafted and signed by Attorney General Jonathan Sewall; the foreman of the grand jury was Thomas Brattle, who later on became, briefly, a loyalist. Jones, Loyalists of Mass. 53. On all the recognizances, one of the sureties was William Hill, a baker who had offered his free services to the garrison (and in fact served as the 14th Regiment's baker), id. at 164. The next year he sat as one of Captain Preston's jurors. See editorial note to Nos. 63 and 64, text at note 60.
11. The summons for the witnesses was dated 19 Dec. 1769, but Ross' post-trial recognizance was dated 21 Dec. 1769. SF 101575. In a discussion of mobs some years later, JA referred to this case. “Is not an Assault upon a civil officer, and a Rescue of a Prisoner from lawfull Authority, made by Soldiers with Swords or Bayonets, as bad as if made [by] Tradesmen with Staves?” JA to AA, 6 July 1774, 1 Adams Family Correspondence 126–127.
12. SCJ Rec. 1769, fol. 253.
13. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40, 43, MHi.
14. SCJ Rec. 1770, fol. 22.

Docno: ADMS-05-02-02-0010-0002-0002

Author: Adams, John
Date: 1769-12

Adams' Minutes of the Trial1

Suffolk Superior Court, Boston, December 1769
Indictment vs. Lt. Ross and Soldiers
Peter Barber. I had a Warrant from Justice Quincy. Justice fined Riley 5s. I saw 15 or 20 Men all with their drawn swords.
{ 434 }
Lt. Ross came in. Mr. Quincy went on with the Mittimus. Riley said he would not pay nor go to Goal. The Word was go. He attempted to go. I took him by the Collar. He struck me with a broad sword. A whispering and a Messenger sent for Mr. Ross who came. Lt. Ross said Go. And he went. I did not hear such Words as do not go.
Corpl. Finley was there at the Door not in the Room. I saw their broad swords drawn. Arnold and Thornly were there. Cant say I saw these Persons swords drawn.
Jeremiah Belknap. 14 July between 2 and 3 passing thro Dock Square. Saw about a 12 soldiers, I think all with their broad swords. And I heard em say d—n him well wait for him. At the Justices Door. I heard em say d—n him. They shant carry him to Goal at the Justices <the Serjeants Name is> Door. And I swear by G—d he shan't go to Goal. Ross was then in the Justices. Justice said Sir take care of your Men to Ross. He answerd I can do nothing. Riley said I'le go. Barber said you shant go. I seizd Riley, and out at the Door we went, half a dozen broad swords, upon us, and I had 3 fingers cutt.
I did not hear Ross say go or not go. I thought Ross connived, because he held the Door open while Riley passed him.
Dr. Jno. Loring. I saw a Number of Soldiers round Winships Cart, insulting him. <Justice> went.
I heard one of the Soldiers <go> say to another, go fetch Lt. Ross. Ross came. I heard em sware, Riley should not go to Goal. And if the Inhabitants, insulted em they would take their own Satisfaction. I went and told Ross. He said He could not help it.
I cant swear to any one Person. There were about 15 or 20.
Ross gave no orders or Reproof to the Soldiers.
Thos. <Ross> Foster. 1/2 Way between Perrys and Quincys. A Cart. I saw a Number of Soldiers there with their Swords in their Hands. Not drawn. They swore by G[od] Riley should not go to Goal.
Finly said G[od] d—n your blood, and I think I saw him draw his sword. One Grenadier carried the Prisoner off. The Inhabitants Soldiers said seize the Prisoner if you dare. Jackson I saw there, and Thornley. It is clear in my Mind that I saw em, and clear that I saw Finly with a sword in his Hand, and saw his Hand on it attempting to draw it.
Wm. Mills. Saw the Soldiers at the Door. They said he should not go to Goal. A Dozen with swords. Saw a Number with their swords drawn. Arnold. Thornly. They had Bayonetts. They were in the Company with the Soldiers who said he should not go to Goal.
{ 435 }
All in a Bunch, and many said he should not go.
Abraham Hunt. They would be damnd if the Prisoner should go to Goal. Q[uincy] told Ross there was like to be a Rescue. Ross said he could do nothing with em. Rily said he would not pay. I went out and heard the Threats a 2d time. Ross said a 2d Time he could do nothing with em. I saw Ross go towards the Door, and then Riley attempted it too. Barber was knockd down. Q[uincy] told Ross a 3d time to disperse the Men. After the Prisoner was rescued, Ross told the serjeant to take the Men to the Barracks which he did immediately. Ross was in sight of the Blows when struck. Ross was at the Door or in the alley, when Barber was struck, near e[nough] to see. Some of the Grenadiers went off with Riley. Some stayd. Jackson and Finley I knew.
Saml. Downes. Ross said What can I do? I cant help it. Ross said he would go. Riley said he'd go too. Ross said dont go.
Mr. Wm. Greenleaf. In my Chamber I heard an unusual Screaming. Soldiers with their Cutlaces flourishing, to keep off the Inhabitants. And afterwards <had> came down 2 Pair of stairs and went out in the street and then heard Ross say go to your Barraks.
Stephen Greenleaf Jnr. Soldiers insulting the Butcher, and challenging. Those Soldiers drew towards the Door cursing and swearing that Rily should not go to Goal. The Soldiers opend to right and left and Rily went threw. And he saying take me now if you dare. Afterwards Ross came out and said you Rascalls to your Barracks directly. Knew Finley.
Jno. Hicks. I heard 'em at the Door say Mr. Ross will be hear in a Minute. Riley said, if you go, I'le <go> follow and defend myself. Ross said dont go, or stay. Then Riley said again I'le go, and Ross made no Answer. I think I saw Jackson. Saw two soldiers sticking2 the Pavements &c.
Mr. Auchmuty. Mr. Ross's Inactivity, no Proof that he was guilty of a Riot. Nor Proof that he aided, incouraged, and abetted.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Or “striking”? The meaning of this phrase is not clear, but it conveys the idea of the soldiers' making threatening gestures with their weapons.

Docno: ADMS-05-02-02-0010-0003-0001

Editorial Note

At the May 1769 Suffolk Sessions, Moyse and Reader were the only men tried among six soldiers who had been presented for breaking and entering, on 16 March 1769, the shop of John Carnes of Boston and stealing 40 shillings of silver and copper coin, 22 pairs of men's shoes (value 6s. each), 30 yards of ribbon (value 20s.), 20 watch seals (value 16s.), 25 yards of holland (value £6), unspecified amounts of printed linen (value 17s. 4d.) and calico (value 6s.), one yard of lawn (value 5s. 4d.), one yard of cambric (value 8s.), one piece of silk handkerchief (value 32s.), 3 pairs of black mitts (value 4s. 6d.), 3 dozen woolen stockings (value £6 3s. 4d.). After the defendants pleaded not guilty, the jury acquitted Reader but found Moyse guilty.
Adams' minutes reflect his interest, if not participation in the case. It should be noted that the minutes reflect no direct evidence of theft, only the circumstantial evidence of possession of the stolen goods. Moyse was sentenced “[to] be whipped 20 stripes on the naked back at the publick whipping post, that he pay to the said John Carnes the sum of £78 13s. 6d. being treble damages, the goods returned to be accounted part thereof according to their value, and that he pay costs of prosecution standing committed until the sentence be performed.”1
On 19 May 1769 Carnes petitioned the Sessions that Moyse was utterly unable to pay the sentence, that he had been found guilty of theft, and that Carnes “be impowered by an order from your Honors to sell him for such a term of time as you shall think reasonable and just.”2 The court responded with an order “that the said John Carnes be and he is hereby fully authorized and impowered to sell and dispose of said John Moyse to any of His Majesty's subjects for the space and term of three years.”3
1. Sess. Min. Bk., Suffolk, May 1769.
2. SF 89002.
3. Sess. Min. Bk., Suffolk, 1769. The petition and order were presumably pursuant to the Act of 1 Nov. 1692, c. 18, §3, 1 A&R 52, which, after providing that offenders should pay treble damages to the owners of goods stolen, went on:
“And if any such offender be unable to make restitution, or pay such threefold damages, such offender shall be enjoined to make satisfaction by service; and the prosecutor shall be, and hereby is impowred to dispose of said offender in service to any of their majesties' subjects, for such term as shall be assigned by the court or justices before whom the prosecution was.”

Docno: ADMS-05-02-02-0010-0003-0002

Author: Adams, John
Date: 1769-05

Adams' Minutes of the Trial1

Suffolk Court of General Sessions, Boston, May 1769
Rex vs. John Moyse and George Reader.
Mr. Carnes.
Clark. Of Mrs. Thorntons, I bought them, one Pair.
Wm. Simpson. I bought another Pair of Mrs. Thornton.
Mrs. Hunt. I sold a Pair to William Clark. I had em of Reader. He told me he had em of Thos. Smith.
Mrs. Thornton. I sold a Pair to Simpson. I bo't em of Reader. He told me he had em from his friends in England. I gave 2 Pist[areens, Pistoles?] and half a Pint of Rum.
Wm. Agnue. I saw a Pair of the Pattern sold to Mrs. Thornton by Reader. He said they were sent by Packett from his friends in England.
Another to the same.
Robinson— same.
Jno. Short. I imported em from G[reat] B[ritain] and Mr. Carnes had a Dozen. I cant swear to the Colour. I sold 11 dozen.
Miss Carns. I know em to be the same that were stole out of my fathers shop. By the different shades. I often spoke of em before they were found.
[ . . . ]Carnes. I knew em when I first saw em. Had seen em often.
Mr. Symms. Found Combs in Moyse's Knapsack. Moyse said he had em from Hallifax. Reader has em from Moyse. Carnes says he heard Moise and Reader say the same.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.

Docno: ADMS-05-02-02-0010-0004-0001

Editorial Note

“Last Thursday Afternoon [28 January 1773] died at the North End, after a few Days Illness, Mrs. Christian Bell, Wife of James Bell, of this Town, Cordwainer, who is a Native of Scotland; it being notorious to Numbers of People that this Woman had for several Years past very undeservedly suffered frequent & cruel Abuses from her said Husband; a suspicion immediately arose after her Death, that she had been murdered by him; in Consequence of which, a Warrant was issued on Friday [29 January] by Mr. Justice Gardner, and the said James Bell was apprehended, and after an Examination had before the said Justice, was on the Evening { 438 } of that Day committed to Goal. On Saturday [30 January] a Coroners Inquest was summoned, who after carefully examining the Witnesses, and critically inspecting the Body, with the assistance of Messers. Danforth, Rand, and Fudger, Physicians of the Town, upon their Oaths declare, that the said Christian Bell came to her Death in consequence of repeated Blows upon her Body, given her by her said Husband, James Bell; more particularly by one Blow or Blows upon her Head, just over the right Eye, which she received on and since the Evening of the 16th ult.”1
At the February 1773 Suffolk Superior Court, the grand jury, specifying the fatal wound as two inches long, one inch broad, and two inches deep, indicted Bell for murder.2 We do not know what part, if any, Adams played in the subsequent trial, although the extensive nature of his notes suggests that he was of counsel for the defendant. The jury returned a verdict of not guilty of murder, but guilty of manslaughter, presumably because the evidence showed no malice aforethought. Bell pleaded benefit of clergy, was branded on the brawn of the thumb, and was discharged.3
1. Boston Gazette, 1 Feb. 1773, p. 1, col. 1. See note 25 below.
2. Indictment, SF 102201.
3. SCJ Rec. 1773–74, fols. 14–15. The branding took place on 27 Feb. 1773. Boston Gazette, 1 March 1773, p. 3, col. 2.

Docno: ADMS-05-02-02-0010-0004-0002

Author: Adams, John
Date: 1773-02-25

Adams' Minutes of the Trial1

Suffolk Superior Court, Boston, 25 February 1773
D[omi]n[u]s Rex vs. James Bell. Murder
Sewall, Attorney General. One of the highest Crimes, agravated as it was his Wife.
Nancy Patterson. Lives in another Street, not so far as the Markett. Went to Bells House. He was in a great Passion with his Wife. She was bloody. He had a Child in his Arms, bloody. Cant tell the Time— whether it was a fortnight or 3 Weeks before she died. Her Eye was swelled so that she could not see. She said her Husband had struck her. He said she had been drunk 2 days and provoked him.
Same Saturday night. He knocked her down Stairs, and said by God, if you dont leave off getting drunk Tie be the death of you. He pushed her, down Stairs, cant say whether with Hand or Knee.
He said she provok'd him a good deal, but did not say she struck him.
Cant say that Either of 'em in Liquor—dont think they were.
{ 439 }
He had a Child in his Arms.
James French. Went to Uncles House, Saturday night. Aunt by the Bed side bloody. She said Uncle had been abusing of her. Uncle said she was drunk. I said he should not abuse her so if she was. About 3 Weeks before she died. He knocked me down on the floor.3 I saw her the Sabbath Week, after. I saw nothing but under her Eye a little blue. She was getting Victuals. Never saw her again, untill she could not speak.
Richd. Bradford. 6 Weeks before she died, heard the Cry of Murder. Ran in and saw that Man and Wife. She said he had been abusing her. He was abed and said she used him with ill Language. I did not see that she was much wounded at that time. She appeard to have been bruisd after she was dead, from her Head to her feet.
Janet Anderson. The Night before she died. Her skin and Body as whole as mine, only blue about her Knees, on one side. Died Thurdsday afternoon. Inquest Saturday.
I have seen her intoxicated.
Dr. Danforth. The Body very much discoloured in general—the surface livid, purple. Laid it open to the bone and found the Parts diseased quite to the bone. Found the internal Parts sound. Removing the scalp, I found a bruise next the bone, between the Eyes. A quantity of coagulated and fluid Blood, extravasated. Depression of Brain caused the death. The Appearance of a Contusion. Blood upon the right Side. The Skin appeard quite fair.
Eliza. Baker. One Morning she seemd in Liquor. He said she was drunk. She would not go to bed. He said she should. <Know nothing> Tuesday night, the Week before she died, I heard her scream Murder. I took it to be her Voice. Bell said she had an aggravating Tongue.
The Saturday night; scream'd Murder, I took it to be her Voice. I cant say whether he struck her.
Knows nothing of the Squabble 3 Weeks before.
Her Eyes were black and blue, and she said she believd it was owing to his frequently striking her. He deny'd the striking of her. She told me her Husband struck her. Next Wednesday she laid upon her Bedd, stupid.
Presently after, I heard her cry Murder, she came down, bloody, and said her Husband had struck her. He came down and bid her go up. He did not deny Striking her.
I heard somebody fall upon the floor, but cant say he struck or pushed her.
{ 440 }
She drank Tea with me a Month or 6 Weeks before her death.
She screamed Murder once when he did not offer any Abuse to her. I was in the Room with her and he was only trying to put her upon the Bed. He did not take hold with Violence nor Anger, he had hold of one Arm and I hold of the other.
Dorothy Smith. Often heard her scream Murder. She seemd in great distress. She said she did not expect any thing but that he would kill her. I once saw him strike at something, cant tell what. She groaned at that Instant. I am sure it was he. It was her Voice. About a fortnight before she died. Mrs. Patterson was in the Room about that time. I charged him with abusing his Wife. He did not deny it, but said it was none of my Business.
Several Times I heard Cries of Murder, and thought I knew her Voice. It Came from her Chamber, as I thought.
Dr. Rand. Saw her the day before she died, in a Paralitick State near the Close of Life. He said he did not call a Physician because he had no Linnen. External Part was contused upon the back Part. Nothing amiss in the Chest. One or two Parts of the scalp, seemd as if there had been some bruise there.
Blow or blows must have occasiond her death, but she might have receivd it by a fall, or from any Body Else, as well as her Husband. Apoplexies generally in the Ventricles of the Brain.
Edward Burt. About 3 years ago, I was a Neighbor to him. She often scrietched, and screamed, murder. He had an Hatchet, objected to.4
Manassah Masters. Bell lived back of me. A Scrietch of Murder. I saw thro the Windows, the Boy jump of [i.e. off] the floor and run down stairs. She said See how the Blood runs. He said D—n you I'le give you more of it, and ran, and struck 3 or 4 times. I could not see her. 16. Jany. Died 28th. <the Woman> This Boy the Witness.
I heard a Groaning, as I thought. I heard the Blows perfectly—with the fist.
John Powell. Saturday night, 3 or 4 days before her death, I heard something fall down, very heavy. Saw nothing. Mr. Bell you have done for me. Heard him say nothing. I was in the next Chamber. Heard Blows and judge it to be Bells Wifes.
Gilbert Anderson. 9. Jany. she came to my House. I saw Mrs. Bell, I askd where Mr. Bell was. I askd how her Blow came. She said she had got it. He said she provoked him, by swearing, pulling his Ears and Hair, and provoked him. I saw her run up and run her fist in his { 441 } face, and swear. He said he could not work, she interrupted. He said his Wife drank a whole Quart of Rum. She seemd in Liquor then.
I never heard any Man swear so in my Life. She <never denyd> told me, that he had beat her.
I have seen her lately drunk at different times and at different Manners, so as to fall down.
Ed. Lee.
Andrew Drummond. Fryday before she died, she sat by the fire, one Child on her Knee, 3 by her side. I gave her 6 or 7 Coppers. She arose to get an Hankerchief. I saw she had a black Eye. I askd her if Bell and she had been [dancing?] the Neger dance.5 She said Bell came home, so and so a little. Sam. French got in betwixt em, and she run downstairs and her Heels trippd up and she fell down stairs, and hurt her Eye. 2 or 3 Years given to drink.
Janet Miller. You d——d son of a Bitch, says she, give me my Mary. For G[od's] sake, says he, be easy. And dont provoke me. She came and took him, by the Ear, and he struck her. 9. day Jany. Saturday. She took him twice by the Eye and Ear. She went to the Glass and danced.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. Dated from Boston Gazette, 1 March 1773, p. 3, col. 2.
2. Probably the coroner's inquest. SF 102327b
3. The witness is apparently quoting the decedent.
4. It is not clear whether it was the witness who objected to the hatchet, or, more likely, defense counsel who objected to mention of it.
5. Thus in MS; the reference is unclear.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2018.