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Browsing: Legal Papers of John Adams, Volume 2


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.
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/