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Browsing: Legal Papers of John Adams, Volume 2


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

Information.2
By what Rule is Prisoner to be tryed? Answer by the civil Law.
Statute 28. H. 8, c. 15. 11. & 12. W. 3, c. 7. 4. G, c. 11, §. 7. then
Foster 288. Barrington 54, bottom Note—notwithstanding St. Tr. V. 8, page 213.
It has been customary to look into both Laws, here, as it seems they do in London, at the Admiralty sessions.3
But the Principal Rule of Law upon which our defence is grounded is common to both Laws, that the Confession shall be taken alltogether.
Woods Inst. 676. Vin. Evid. page 95 A. b. 23. 3. 5. Mod. 165. 2. Hawk. 429.
Examen Juris Canonici. 335. Maranta Sp. Aur. 313. 314 especially.
{ 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
Association.38
The Voyage to Gibralter. French, Spaniards, Portuguese, Sweeds &c.39
Onus Probandi on the Libellant.
Deposition of T. Casey and Wife.40
Maccays Case.41 Mrs. Alsops Case.42
{ 388 }
Bill Jacksons Case.43 Butlers Letter.44
Insured.
1. Q. Is the Property Doanes? Yes.45
2d. Does the Voyage to Gibralter, forfeit the Property?
3. Does the Voyage to Hallifax forfeit.
4. Does the Goods being British Manufactures forfeit em and Brig.
5. Does the Insurance forfeit the Goods?
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.
Answer'd.
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?
Answer'd
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 }
Answer'd
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: 190.1.2.4
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
Pris[o]ner.
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.
Quincy.
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.
Blowers.
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
Rex
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.
R.
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.
Simpson.
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.
Inquisition.2
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, 2014.
http://www.masshist.org/apde2/