Title: Editorial Note
From:
To:

       “I was concerned in several Causes in which Negroes sued for their Freedom before the Revolution,” Adams wrote in 1795. “The Arguments in Favour of their Liberty were much the same as have been urged since in Pamphlets and Newspapers, in Debates in Parliament &c. arising from the Rights of Mankind. . . . I never knew a Jury by a Verdict, to determine a Negro to be a Slave. They always found them free.”
       The documentation of Adams’ “slave cases” bears out his recollection, but not entirely. His minutes suggest that counsel for the slaves argued as much from precedent as from Enlightenment; and the court records show that in at least one case, Newport v. Billing,No. 39, the jury found the plaintiff to be a slave. It is curious that Adams should have forgotten that cause, because he was there, as in at least three other cases, of counsel for the putative master.
       All the cases date from 1766 or later. In that year, Adams witnessed the trial of Slew v. Whipple, No. 38, the first he had actually seen, although he had “heard there have been many.” Did the accelerated tensions of the Revolutionary movement encourage such suits? Would abolitionist pressure have developed anyway? These questions must be answered elsewhere.
       The cases do provide some basis for generalization. That such problems were taken to court for disposition in civil suits emphasizes the settled state of Massachusetts society at the time. A suit for trespass to the person is an exceptionally sophisticated way of testing an issue which could have been determined either by force or by flight.
       It is significant that each plaintiff sought to justify his or her freedom as much on evidentiary grounds as on grounds of policy or the rights of man. As Putnam put it in Newport v. Billing, “Point in issue, Slave or not?” That point arose differently in different cases, depending on the twists the pleadings took and on the facts of each Negro’s condition. With the exception of Margaret v. Muzzy, No. 40, the declarations sounded in trespass and the relief sought was damages for false imprisonment. “Freedom” was thus determined only as an incident of the right to maintain the action, much as title was tried in trespass to chattels. The form of action set the procedural frame of the case, but the facts determined counsel’s pleading strategy.
       In Slew v. Whipple, the initial skirmish centered on an attempt to abate the writ because the plaintiff had styled herself therein as a spinster. Adams’ notes are cryptic, but it appears that counsel for the master argued that plaintiff’s previous marriages, apparently to Negroes, had been valid, that “Jenny Slew, spinster,” did not exist, and that her writ must accordingly fail. A divided court rejected that effort. The trial on the merits went forward. Here the plaintiff’s case was that, although her father had been a Negro, her mother had been white; the plaintiff, therefore, ought to be a free woman. The defense was only that the plaintiff had never proved her possession of her liberty; the defendant did not or could not introduce affirmative evidence of plaintiff’s slave status. The jury thereupon awarded £4 damages and costs to Jenny.
       In Newport v. Billing, apparently the first slave case in which Adams actually participated, the defendant’s position was stronger. To the declaration in trespass he responded that he had purchased the plaintiff and that the plaintiff was “his own proper Negro slave.” The plaintiff replied that he was “a freeman,” and the burden shifted to the defendant, who put in evidence a bill of sale. He also argued that a Negro should be presumed to be a slave. The plain tiff urged the insufficiency of the documentary and the racial proof. Nonetheless, the jury found that Newport “was not a freeman as he alledged but the proper slave of” the defendant, and so denied him damages.
       Margaret v. Muzzy offered a procedural variation. Because Adams did not enter the case until late, on behalf of defendants, and because his papers contain no notes or minutes, we cannot tell why plaintiff chose to replevy herself out of defendant’s possession on a writ de homine replegiando, or personal replevin. Once the action commenced, it proceeded as though the form were trespass; defendant pleaded not guilty and the matter went to the jury, which found for plaintiff. The result was the same on the appeal and upon a writ of review. The judgment in this case actually resulted in Margaret’s freedom, since the plaintiff sought “possession” of her own person rather than damages.
       There are no Adams minutes of Watson v. Caesar (May 1771) (not included here), another trespass action, but the Suffolk Files contain enough depositions and documents to disclose the story. Caesar had been a slave of Elkanah Watson of Plymouth and somehow came into the possession of the Chevalier de Drucour, a Captain in the French Navy. At Louisbourg on 1 July 1758 the Chevalier gave him his freedom and a certificate to prove it. Caesar returned to Plymouth on the sloop Sally, some of whose people were later to give conflicting depositions about his representations of this status, and then re-entered Watson’s service.
       Twelve and a half years afterward, Caesar demanded his freedom. “I am very willing he should have it,” Watson wrote to Benjamin Kent, Caesar’s attorney, “and should have been as willing 10 years ago or when he first came home had he ever asked me for it, or if I had ever known he had a paper.” Whether Watson changed his mind, or whether they could not agree on the amount that Caesar was to be allowed for his services, Caesar commenced his action against Watson in the Plymouth Inferior Court. In April 1771, on a plea of not guilty, the jury found for Caesar. At Plymouth Superior Court in May, where Adams appeared for Watson, the jury affirmed the lower court’s verdict, awarding Caesar nominal damages of 6d.

       Adams’ last known slave case, Caesar v. Taylor, No. 41, involved another Caesar. It appears from the documents that Taylor, Adams’ client, had sold Caesar to a third party, despite an agreement that he was to be permitted to buy his freedom from Taylor. After the jury at the Newburyport Inferior Court in September 1771 had found for Caesar (Document I), Taylor appealed. Adams, participating in the litigation for the first time, sought at the November 1771 Salem Superior Court to introduce in evidence a bill of sale from one Edward Hircom to Taylor (Document II). Plaintiff’s counsel (John Lowell and Nathaniel Sargeant) objected, on the ground that defendant’s plea of the general issue (“non culpabilis,” or “not guilty”) precluded his introducing special evidence. This was the common law rule, but the court took the matter under advisement. Other minutes of the argument (Documents III and IV) indicate that plaintiff also raised evidentiary points at this time. First, he put in evidence of Taylor’s agreement to sell Caesar his freedom. Second, he prevailed on his offer of evidence that Taylor’s vendees had beaten Caesar, the court agreeing that the beating was what today we would call the proximate result of the initial tort, the illegal sale. Finally, plaintiff tried to convince the judges that the woman known as his wife was competent to testify; the common law rule went the other way, however, and so did the court, despite plaintiff’s argument that Negroes could not legally marry and that therefore the woman was not really his wife.
       At the Ipswich Superior Court in June 1772 (Document V), the court decided that a plea of the general issue barred special evidence, the new judges, Ropes and Cushing, who had been appointed since the argument, giving no opinion. Adams moved for leave to replead, which motion the court denied and brought the case on for trial. Here once again plaintiff tried unsuccessfully to have his wife testify, and Adams sought (apparently with equal lack of success) to mitigate damages by putting in evidence of Caesar’s reputation as a slave. The case then went to the jury, which found in Caesar’s favor in the amount of £5 13s. 4d. damages and £24 7s. 2d. costs.
       The final case in this collection, Caesar v. Greenleaf, No. 42, does not appear to be an Adams case, although the document here printed appears in the Wetmore Notes in the Adams Papers, and dates from the October 1773 Inferior Court at Newburyport. The declaration alleged trespass to which defendant pleaded not guilty, the general issue. However, to avoid the procedural cul-de-sac (or “non cul”-de-sac) which had bound Adams in Caesar v. Taylor, defendant’s counsel here (Daniel Farnham) induced the other side (John Lowell) to stipulate that evidence of special matter would be admissible. Notwithstanding, the report does not indicate what if any other evidence was introduced. It seems that the jury found for the plaintiff £18 damages and costs, and that there was no appeal.
       These cases represent only some of the “suits for liberty” which were being brought by Negroes in the years just preceding the Revolution. They suggest substantial acceptance of the institution of slavery by all except perhaps its victims. It was not until the Massachusetts Constitution of 1780 and Judge William Cushing’s construction of its “free and equal” clause as a prohibition of slavery in Quock Walker’s Case (1783) that there was even a firm legal basis for manumission when on the facts the plaintiff was clearly a slave. The subsequent history of slavery indicates that it was many years after this before any substantial portion of the people of Massachusetts were ready to mount either legal or moral attacks on the institution. Adams seems to have seen in recollection rather more in his early slavery cases than the records disclose.


Title: Adams’ Copy of the Declaration, and Report: Essex Superior Court, Salem, November 1766
From: Adams, John
To:

       Essex Ss. Novr. 1766. Superior Court.
       Jenny Slew of Ipswich in the County of Essex Spinster Plaintiff vs. John Whipple Jnr. of said Ipswich Gentleman, Defendant, in a Plea of Trespass, for that the said John upon the 29th January 1762 at Ipswich aforesaid, with Force and Arms, took her the said Jenny, held and kept her in servitude as a Slave, in his service, and has restrain’d her of her Liberty from that Time to the fifth of March last, without any lawful Authority or Right so to do, and did her other Injuries against the Peace, and to the Damage of the said Jenny Slew as she saith, £25.

       Defendant pleaded, that there is no such Person in Nature as Jenny Slew of Ipswich aforesaid Spinster and this the said John is ready to verify, wherefore he prays Judgment &c.
       Evidence was that she was originally called Jenny Slew, but that she had been severally Times married to slaves &c.
       Writ did not abate. 2 Judges for Abatement and 2 against it. So being divided could not abate.


Title: Adams’ Minutes of the Argument: Essex Superior Court, Salem, November 1766
From: Adams, John
To:

       Slew vs. Whipple.
       Gridley. Marriage is of the Law of Nations. Justinian extends it, even to the Brutes.

       The Court adjudgd at Worcester that a Married Woman could not call herself Spinster.
       Writ not abated.
       Kent. I shall not enter into the Right of some Men to enslave others. This Right in some Places seems established. Not indeed a Right to Life, tho this is assumed in West Indies to the shame of human Nature.
       Evidence was that Jenny Slew was commonly reputed to be the Child of Betty Slew a white Woman by a Negro Man.

        Mr. Goffe.

       Gridley. Shall Trespass be maintained? Shall not the Plaintiff who sues in Trespass for Goods be compell’d to prove his Possession and that it was by force taken out of his Possession. She has never been in Possession of her Liberty, she has been out of Possession of it for 50 years. Trespass is the highest Action of the highest Nature in Law. No other civil action in which the Party may be punished criminally.
       Kent. In the Case of the East Indian at Charlestown they pleaded in Bar that she was a slave, and produced the Bill of Sale. Why did not they do so here?
       J. Oliver. This is a Contest between Liberty and Property—both of great Consequence, but Liberty of most importance of the two.
       J. Cushing. It is not long since King’s attorney brought an Action of Trespass, in such a Case as this, and I think he was right, for if a Person is free he may bring Trespass at any Time.

       Partus sequitur ventrem. Colour is a Presumption.
       Lynde. Trespass has commonly been brought, I


Title: Adams’ Minutes of the Trial: Hampshire Superior Court, Springfield, September 1768
From: Adams, John
To:

       Newport vs. Billing.
       Strong. Trespass and false Imprisonment. Plea that Plaintiff is Defendants Property—his Negro Slave.
       Rep. no slave but a freeman.
       Bill of Sale 1728. 15th March from David Ingersole.
       Coll. Partridge. Ingersoles Hand. Lowghtons Hand. Knew Newport to live with Billing and reputed his servant.
       Mr. Dickerson. Knew him 30 Years to be the servant of Billing.
       Acts of Parliament that take Notice of slaves in Plantations.
       Law of Province.
       Custom.
       Every Man a Right to freedom that no Law or Usage can take away.
       Forfeiture of Liberty. Wars, among them. Captives.

       A Right to destroy them, if necessary to secure themselves.
       Right to enslave them to repay the Expences of defending ones self.
       Sense of the Nation to be relyed on.
       Presumption here is that an African black is a Slave.
       Tax Acts.
       Putnam. Point in issue, Slave or not?
       Defendant must now prove that Plaintiff is a slave. A Negro, black &c., the only Proof. Montesquieu, flat Nose, &c. Noah’s Curse. Dr. Newton.
       History, Greece and Rome. Slavery. Power of Life and death.
       Not proved that he has forfeited his Liberty, by the Laws of his Country.
       Common Report, that they are stolen in Affrica. The Same Right for them to enslave us.
       Common Law directly vs. this Principle. Villenage.

       3 Raymond 1274. Salk. Mod. Levitic Law Exod. The master might kill his slave.
       May have a Right to service, during Life. But not to Life.
       Province Laws might mean slaves of West indians.
       Sewall. Painfull. Humanity, common Justice, and eternal Morality.
       Conquest and Rights of War.
       Plea says D. Ingersole had a Right to sell him. Receipt. Similitude of Hands.
       Protection. Break his Head. Indictment will lye.
       Moral. Necessity to set it aside, it may be demonstrated that it is a Disadvantage to us.
       Voltaire, no sugar.
       Wounded Consciences.
       Vid. Arguments at large in 1st. Mod.


Title: Writ and Pleadings: Middlesex Inferior Court, Cambridge, May 1768
From: Mason, Thaddeus,How, William,Sewall, Jonathan,Kent, Benjamin,Winthrop, Samuel
To:

       Formal opening omitted.
       To the Sheriff of our County of Middlesex his under-Sheriff or Deputy. Greeting.
       We Command you that without Delay you forthwith cause to be replevied (if she may be found within your precinct) Margaret, otherwise called Peggy, a Molatto woman now in the possession of William Muzzy of Lexington in our county of Middlesex Tanner, any claim of the said William notwithstanding, the said Margaret having found sufficient Security to prosecute her plea in this behalf against the said William. And summon the said William Muzzy (if he may be found in your precinct) to appear before our Justices of our Inferiour Court of Common pleas to be holden at Cambridge within and for our county of Middlesex on the third Tuesday of May currant then and there in our said Court to answer unto the aforesaid Margaret In a plea of taking and detaining the said Margaret whereupon she Complains that the said William Muzzy on or about the last day of August last at Lexington aforesaid unjustly took her the said Margaret and her so taken held in Servitude against her free will from the last day of August Last untill the Day of the Date hereof which is to the Damage of the said Margaret as she saith the sum of one hundred pounds which shall then and there be made to appear with other due Damages and have you there this writ with your doings herein. Witness Samuel Danforth, Esqr. at Cambridge this Second day of May in the eighth year of our Reign, Annoque Domini 1768.

        Thad. Mason Cler.

       Middlesex Ss. May 3d 1768. I have replevied the within named Peggy a Molatto out of the hands of the within named William Muzzy and have summoned the within named William Muzzy to appear at the time and place within mentioned by reading this writ to him.
       Wm. How Dept. Sheriff

       The said William comes and Defends &c. and reserving Liberty of giving any Special matter in Evidence under the general issue and the same to avail as if specially pleaded says he is not guilty as the plaintiff complains and thereof puts himself on the Country, by Benja. Kent his Attorney:
       And the said Margaret allowing the Liberty above reserved and also reserving Liberty of waiving this Demurrer on the appeal and joining the issue tendered says the said William’s plea aforesaid is insufficient and prays Judgment for costs.
       Jona. Sewall

       And the said William consenting as above says his plea aforesaid is sufficient and prays Judgment that the said Margaret may be restored, when specially Demanded to him and for costs.
       Benja. Kent

       The Demurrer is waived and the Issue is joined.
       Att. Saml. Winthrop Cler.


Title: Wetmore’s Minutes of the Trial: Essex Inferior Court, Newburyport, September 1771
From: Wetmore, William
To:

       Caesar v. Taylor. Trespass for detention in slavery. Plea non cul. Besides the usual proof of liberty, the plaintiff brot witnesses to prove a contract between him and defendant that he shoud be free on payment of a sum of Money and that the money was partly paid and that the Time of payment is not yet expired.
       For defendant was read the province Law shewing negroes to be slaves and that they can’t be manumitted without first giving bond, which was not done in the present Case &c.
       But answerd by Plaintiff that the Province law doth not make any negroes slaves if it did it being contra. to Laws of God and reason must be void. And  error &c. about in different matters may make jus but not in essentials as life liberty &c.


Title: Wetmore’s Minutes of the Argument: Essex Superior Court, Salem, November 1771
From: Wetmore, William
To:

       At the Superior Court November the defendant offered to give in Evidence on plea of non Cul his right to Caesar by purchase &c. The Council for Caesar objected that it cou’d not be admitted on this plea and the Court doubted. It was compared to the Cases in Trials pr pais and Gilbert L.E. Law of Evidence where title agreements &c. are good evidence, when they don’t go in discharge of trespass but in denial of plaintiffs declaration. And the Cause was contin’d. A special verdict was proposed.


Title: Wetmore’s Minutes of the Argument: Essex Superior Court, Salem, November 1771
From: Wetmore, William
To:

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


Title: Wetmore’s Minutes of the Argument: Essex Superior Court, Salem, November 1771
From: Wetmore, William
To:

       Trespass for enslaving Plaintiff; plea non cul. Plaintiff offered evidence of beating imprisoning and abusing the plaintiff by defendants vendees. As the defendant was the first cause of by illegal conveyance the Court unanimously admitted the proof, altho’ said that it cannot appear by records.
       Caesars wife offered as a witness. Objected to her as his wife and interested, and proof offered of cohabitation. Answer that there was no contract but what was dissolvable at will and said to be determined that no negro could be a bastard, but Judge Trowbridge said that proof of Cohabitation was proof of marriage, and evidence by witnesses was admitted of cohabitation for a course of years. White woman married to negro Slave not allowed to sue without naming him.
       Adams. It has been ruled in 3 cases by the Court, in Slewman, in Billings, and at Cambridge that negroes are presumed to be slaves and must make their freedom appear.
       Lowell. Made difference between property in matter and moral beings.
       Hutchinson. The Evidence not admissible on the plea.
       Trowbridge of the same opinion.
       Oliver also, of the same opinion.
       Lynde in doubt.
       Cushing not in.


Title: Wetmore’s Minutes of the Trial: Essex Inferior Court, Newburyport, October 1773
From: Wetmore, William
To:

       Caesar v. Greenleaf
       Trespass for inslaving the plaintiff.
       Caesar a molatto man (otherwise called Caesar Hendrick) of said Newbury Port labourer in a plea of trespass for that the said Richard Greenleaf at said Newbury Port on the 1 of January last, with force and arms assaulted the plaintiff then and there being in our peace, and then and there with force as aforesaid falsely imprisoned him and so with force as aforesaid and against the plaintiffs will hath then held kept and restrained him in servitude as the said Richard’s slave from the same day untill the day of the purchase of this writ and many other injuries and enormities the said R.G. to the Plaintiff then and there did against our peace. Damages £50. Dated March 16. 1773.
       Plea. And the said R.G. comes and defends when and where &c. and protesting that the said Caesar is his molatto Slave and that by law he is not held to answer to the said Caesar on his declaration aforesaid yet nevertheless the said R. for plea saith (on the plaintiffs agreeing that he the said R.G. may on the trial give any special matter in evidence for his Justification and that the same shall avail as if specially pleaded) he is not guilty in manner and form as the plaintiff hath declared, and thereof puts himself on the Country.

        D. Farnham
        And the Plaintiff (agreeing to the above) likewise.
        J. Lowell

        Farnham.

       The Egyptians, Grecians, Jews, Romans, held many in slavery.
       Province law. pa. 82. 144–5. 152. Shew there were many slaves in the province at the time of making those laws, held in slavery, and not to be manumitted, without security, &c.

        Lowell.

       The Defendants plea acknowledgeth him a molatto and therefore must have had a white parent, either father or mother.
       Certificate of his baptism and that he is a member of Mr. Parson’s church, read.
       Admitting there are slaves in the province yet the plaintiff may be none and in fact is not one, as he will prove.
       Villeins these were known in the English law. We have nothing to do with any other laws. Those of Egypt, Greece or Rome are nothing to Englishmen. At Common law partus non seq. ventrem, otherwise it may be in the civil law—but this law never adopted by English law in this case by the English law Villeins follow the state of the father not of the mother.
       But objected by Farnham in Villeinage there was marriage, in this case none, so not applicable.
       Matrimony a duty and right, and plaintiff by law of nature must provide for his issue, therefore must be free that he may discharge his duty and enjoy his right. No human tribunal can take away natural rights so fundamental.
       The precepts of revealed law, golden rule of the gospel are that we are not to sell our brethren, that we are to do as we would be done unto.
       He is a Christian and if held in Slavery may not perform his duties as one. His master did not object to his baptism and becoming a xtian.
       Liberty is not to be taken from him by implication of law. There must be express law for it.
       The province laws read establish Slavery only by implication if it does at all.
       Plaintiff must be free unless a slave by common law, Statutes of Great Britain, or law of the province.
       But even villeinage is abolished by English law. The Common law abhors slavery.
       Somersett case shews every one setting his foot on English ground to be free, wherever he came from.

       Usage and custom must be for time whereof memory of man is not to the contrary, and must be reasonable, just, constant and right.
       But in this country, in the Colonies, none such because records shew the beginning.
       The old Colony law shews no slaves but those made by their own consent or by taking in lawful war.
       Superior Court hath determined this country too young for usage and custom time whereof &c.
       Foster Crown law, as to legality of impressing mariners, says impress had been ever Since existence of the nation, at least from William the Conqueror. Yet if it was not of public necessity it ought not to be esteemed law but England being an Island there was necessity it must be guarded by ships and seamen and of Course impresses legal. But Hume in his history questions Fosters law. And Foster pretends none but temporary right and while exigencies of war require.
       Some Legislatures Southward in the colonies have enacted, that blacks, as negroes are Slaves.

       Hobart 87. Act of Parliament. Jura naturae immutabilia. An act of parliament against natural Equity, as to make one Judge in his own cause is void.
       The province law is to be extended only for the purpose mentioned in it, as to manumission, as to charge of supporting them &c. nothing as to the right of enslaving the negroes.
       Caesar and Greenleaf (as I suppose) the foregoing case.
       Judge Frye. The defendant by the province law and by the custom of the country seems to justify his doings. The laws suppose slavery. The master by admitting the baptism &c. seems to have in a measure given the plaintiff his liberty. Shall this humanity be taken against the defendant?
       N.B. This case I copied from Mr. Pynchon’s report of it, and am uncertain whether J. Frye gave the above opinion in this case or some other.


Title: Adams’ Notes of Authorities: Court of Vice Admiralty, Boston, 1768
From: Adams, John
To:

       Doane’s Whale.
       Grotius B. 2, Chap. 8, §. 2. How long Beasts Birds and Fishes, may be said to be no Body’s, admits of some Dispute.
       §. 3. “The Roman Lawyers say, We lose our Property in wild Beasts, as soon as ever they recover their natural Liberty: But in all other Things the Property acquired by Possession does not cease with the Loss of Possession. Nay it gives us a Right even to claim and recover our Possession. And Whether they be taken away from us by another, or get away of themselves, as a fugitive slave, it is all one.”
       Inst. Lib. 2, Tit. 1, §. 12. “De rerum divisione et de adquirendo ipsarum dominio. Ferae igitur Bestiae et Volucres, et Pisces, et omnia animalia, quae mari, Coelo, et Terra nascuntur: simulatque ab aliquo capta fuerint, jure gentium, statim illius esse incipiunt. Quod enim ante nullius est, id, naturali Ratione, occupanti conceditur. Quicquid autem eorum ceperis, eousque tuum esse intelligitur, donec tua custodia coercetur. Cum vero tuam evaserit Custodiam, et in Libertatem naturalem sese receperit, tuum esse definit, et rursus occupantis fit. Naturalem autem Libertatem recipere intelligitur, cum vel occulos tuos effugerit vel ita sit in Conspectu tuo ut difficilis sit ejus Persecutio.”
       §. 13. “Illud quaesitum est, an si Fera Bestia ita vulnerata sit, ut capi possit, statim tua esse intelligatur. Et, quibusdam placuit, statim esse tuam et eousque tuam videri donec eam persequaris. Quod si defieris persequi: definere esse tuam, et rursus fieri occupantis. Alii vero putaverant non aliter tuam esse quam si eam ceperis. Sed posteriorem sententiam nos confirmamus, quod multa evidere soleant ut eam non capias.”
       Vid. same Law in same Words: Digest Lib. 41. Tit. 1. “De adquirendo Rerum Dominio.”
       §. 5. “Naturalem &c. illud quaesitum est an fera bestia, quae ita vulnerata sit, ut capi possit statim nostra esse intelligatur. Trebatio placuit statim nostram esse, et eo usque nostram videri donec eam persequamur. Quod si defierimus eam persequi: definere nostram esse, et rursus fieri occupantis. Itaque si per hoc tempus, quo eam persequimur, alius eam ceperit eo animo ut ipse lucrifacerit: furtum videri nobis eum commisisse. Plerique non aliter putaverunt eam nostram esse, quam si eam ceperimus: quia multa accidere possunt, ut eam non capiamus: quod verius est.”


Title: Interrogatories for Gage: Court of Vice Admiralty, Boston, 1768
From: Adams, John,Otis, James JR.
To:

       Interrogatories In the Behalf of Lot Gage and Partners In the Case of Joseph Doane and others against him and Partners.
       1st. Was you on a Whaling Voyage In the Streights of Bellisle on or about the 21st. of June 1765.
       2. What Boat was you in and what Vessel did you belong to.
       3. Do you remember that on or about that time there was a Whale Killed by Lot Gage and others the Property of which whale has Since been disputed by Joseph Doane and others.
       4. Did you see Lot Gage Faste to said Whale.
       5. Was there any other Boat fast to her when Lot Gage Struck her.
       6. How Near was you to Said Whale when Gage Struck her.
       7. Did you Sit down or stand up tell all you Know about it.
       8. Did you see Asa Nickerson that day.
       9. Did you See him or his harpooner Dart at said Whale.
       10. Did he fasten to her or Not.
       11. Did you See him hawling in his Iron and Warp before Gage Struck the Whale he fastned too. Tell all you Know about it.
       12. Did you at that time Know Silas and Robert Newcomb.
       13. Did you see them at the time Gage was fast to the Whale or before.
       14. What was the Newcombs Conduct on that Voyage according to your observation.
       15. Did you observe that when you fell in Chase of Whales with the Newcombs they were more Noisey then than Common.
       16. Did that Boat the Newcombs was in go by the Name of the Crasey Newcombs that Voyage.
       17. Did you hear that Silas Newcombs was Crasey since he got home from that Voyage at any time.
       18. Did you hear Josiah Godfrey your Stearsman say (at the time Mentioned In your Deposition) any thing on Board your Vessel about this Whale and what he Said.
       19. Was Josiah Godfrey your Stearsman present at the Conversation aboard your Vessel as mentioned in your Deposition. Tell what you Know about it.
       20. Was Robert Homer a Whaling with you in the Year 1765 at the Streights of Bellisle about the 21st of June.

       21. Had you any Conversation with him about the Whale In Controversy and what was it.
       22. What was the Capacity that he went in.
       23. Was he Not Looked on as a very Raw hand by your Crew and one that had Little or No knowledge about Whaling.
       24. Did he Ever Mention to you or the Crew you belonged to any Conversation that he had with John Whelden or his Crew about this Whale.
       25. Did you hear any man on Board the Vessel that John Whelden was in say the Whale In Controversey between Joseph Doane and others and Lot Gage and others belonged to the Doanes.
       26. Did you hear any Man say so on Board the Vessel you Belonged to.
       27. What was the general opinion while you was on the Voyage of the people a Board your Vessel and John Weldens vessel who said Whale belonged to whether to Gage or to whom.
       28. Was you a Whaling with Seth Baker in the Year 1765 at the Streights of Bellisle on or about the 21st of June that Year.
       29. What did you hear him say when he Come on Board the Vessel you was in about the Whale In Controversy that Same day said Whale was Kill’d or Soon after. Tell what you Know about it.
       30. Did you go in an End of a Boat and which End.
       31. What was the General Talk of the People at the Streights of Bellisle about the Whale in Controversy that is who she Belonged to tell all you Know about it.
       32. Did you hear Samuel Howes talking with John Whelden about the Whale In Controversy very soon after the Whale was Killed Relate The talk Whelden had about her at that time.
       33. Had you ever any Conversation with Silas Newcomb about the Whale in Controversy, tell all you heard him Say about it and when and where it was.
       34. Had you Ever any Conversation with Captn. Joseph Doane about the Whale In Controversy. Tell all you remember of it.
       35. Are you Acquainted or do you Know Asa Nickerson.
       36. Had you Ever any Conversation with him about the Whale In Controversy Between Captn. Joseph Doane and others and Captn. Lot Gage and others. Relate the Conversation and tell what you Remember of it.
       37. Did you hear any person in Asa Nickerson Boate at the Time Lot Gage was fast to the Whale now in Controversy say that they the said Nickersons boate was not fast to said Whale and that they had Better go on Board their Vessel and Get some Victuals and not Contend about her or words to that Effect. Tell all you know about it.
       38. Can you tell how Near Seth Bakers Boate that you was in was to the Whale In Controversy when Lot Gage struck her.
       39. Was you at one Oar with your Back Toward the Whale.
       40. Was not Robert Homer In the same Boat at the same Time.
       41. Did he stand up to Look at the Whale and Boats that you Observed.
       42. Do you Know of any Boats Besides Gages that was Nearer to the Whale when he struck then your Boat.
       43. Was you Near Enough to Gages Boat or the Whale to Know one man from another.
       44. How long after you Perceivd the Whale to be fast before you Quitted the Chace.
       45. Did you Ever hear it said on Board your Vessel that the Whale In Controversy Belonged to the Doanes.
       46. Did you Ever tell any Body so.
       47. Did you hear any of the Crew on Board your Vessel say so.
       48. Was it not the General Voice of your Vessels Crew that she Belonged to Gage.
       49. Did you Ever Suggest to Robert Homer or say any thing like it that you should or Could be an Evidence in Doans favour.
       50. Did you Ever Say to Robt. Homer or in his hearing that said Whale Belonged to the Doanes.
       51. Was you in the Boat with John Chase at the Streights of Bellisle on or about the 21st. of June 1765.
       52. Did you see any thing of the Transactions of Asa Nickerson or Lot Gage at that time. Relate all you know about them.
       53. Do you Know Seth Baker.
       54. What is his Charecter as to Probity and Truth.
       55. Do you Know John Cash.
       56. What is his Charecter as to Probity and Truth.
       57. Have you heard of any Contention or Quarrel Between Robert Homer and John Whelden or Family, tell all you Know about it.


Title: Editorial Note
From:
To:

       The majority of John Adams’ cases in the Court of Vice Admiralty involved breaches of the British Acts of Trade. The Acts were a coherent body of legislation, enacted between 1660 and the Revolution, which regulated the flow of colonial trade, laid duties on some aspects of it, and established a system of enforcement. The basic regulatory provisions were: that vessels engaged in the plantation trade had to be English- or colonial-built, owned, or manned; that certain enumerated goods produced in the colonies could be shipped only to England or to another colony; and that most European goods could be shipped to the colonies only from English ports.
       This system was designed primarily to aid the English merchant and shipbuilder by creating monopolies in the colonial trade, but it did benefit colonial shipbuilders, and at least some colonial merchants, by assuring them of markets. The system also was an indirect producer of revenue for the Crown, since goods flowing through English ports were subject to duties to be paid there by the importer or exporter. The only duties levied in the colonies before 1764 had their primary effect as measures to support or encourage trade with England, rather than as direct revenue-producers. Thus, although the Plantation Duties Act of 1673, laying duties upon enumerated goods shipped from one colony to another, had the effect of equalizing the tax burden between English and colonial consumers of colonial goods, its principal aim was to make shipment of these goods to England more economical for the exporter than intercolonial shipment. Similarly, the heavy duties laid upon the importation of foreign colonial sugar products by the Sugar Act of 1733 were designed to put British West Indian sugar producers in a favorable position.
       Enforcement of these measures was in the hands of customs officials in the colonies who were responsible to the Commissioners of the Customs in England. The colonial officers administered a complicated documentary control system designed to insure compliance with both regulatory and revenue provisions. The basis of the system was the requirement that vessels arriving from or bound for parts beyond the seas enter and clear with the customs officers at each port. This practice permitted a constant check on each vessel’s compliance with the Acts, as evidenced by certain required documents. For example, the nationality of vessels and crews was controlled through the ship’s register, a certified copy of the master’s or owner’s oath that the vessel was English built, owned, and manned. A vessel carrying enumerated goods had to give bond on clearing that they would be landed only in an English or colonial port; if a certificate of compliance were not returned within a certain time, the bond was forfeit. To ensure that European goods had been shipped in England, the master was required to submit a manifest, showing the nature, amount, and origin of his cargo before his vessel could enter and unload. The payment of duties was also controlled through the manifest and through certificates of the officers on entry and clearance that duties had been paid.
       To prevent violations, the customs officers had broad powers to search vessels, as well as premises ashore, for contraband, and to seize such goods. Violators were subject to a variety of penalties, ranging from small fines for failure to comply with administrative rules to forfeiture of vessel and goods for breach of the substantive requirements of the Acts. Although in England such offenses were within the jurisdiction of the Court of Exchequer, in the colonies many of them could be sued upon in the Courts of Vice Admiralty, which had been established in 1697 primarily for this purpose. The customs officers were allowed to bring suit for penalties and forfeitures, receiving a share of the proceeds upon condemnation. Jurisdiction of these actions was concurrent at common law, but in Massachusetts at least, the officers preferred to proceed in Admiralty, where recovery was not subject to the whim of a jury friendly to the offender.

       There was some opposition to this system at its inception, but after about 1725 the furor generally died down. Historians have seen this reaction as an indication that the colonists had come to accept the benefits which they received in trade with England as compensation for some of the disadvantages which regulation imposed. This was undoubtedly a factor, but it is clear that colonial acceptance was made easier by the fact that after 1725 English policy seemed to be one of deliberately ignoring violations of the system. Revenue collections from the colonies were small, in part because of the regulatory purpose of the revenue measures, but to an even greater extent because of a widespread laxity of enforcement that was known to and condoned by Parliament. Presumably a similar laxity pervaded the enforcement of other provisions of the Acts.
       Adams came upon the scene just as this policy of laxness was being abandoned. New England’s trade with the enemy during the Seven Years’ War had reached such heights that the Crown made determined efforts to control it through strict enforcement of the Acts of Trade. There was an immediate reaction among the Boston merchants against the Admiralty court and the customs officials, which manifested itself in several ways, including opposition to the officers’ application for writs of assistance (general search warrants). Adams attended the first of two arguments on the question, held before the Superior Court at Boston in February 1761. Although he was not of counsel, he produced a report which was widely circulated and of some importance in later political struggles. Boston’s resistance to the application, although unsuccessful, marked the first step in an opposition to the Acts which was to culminate in the American Revolution.
       At the conclusion of the war in 1763 England was both financially strained and sharply aware of the extent of colonial evasion of the Acts of Trade. The American Act of 1764 was directed at both problems. For the first time duties were levied on colonial imports for the express purpose of raising a revenue. To prevent violation of this and other Acts, various holes in the enforcement system were plugged with requirements for ad

        ditional bonds and certificates and a closer check by the customs officers. Heavy pecuniary penalties against offenders were set in addition to the previous system of forfeitures, and it was made clear that all violations of the Acts could be sued upon in colonial Admiralty courts. In these suits the prosecuting officers were given certain procedural advantages. Finally a new superior court of Admiralty was created to hear cases from any province.
       Before the effect of these new measures could be felt, Parliament passed the Stamp Act of 1765, a provision for further revenue to be levied by a tax upon a variety of documents and printed matter. Colonial objections to the American Act were submerged in a sudden rush to defy the Stamp Act. In Boston, violence and the threat of violence prevented the distribution of the stamps. One result was that the courts, which required stamped paper for their documents, were closed. Adams appeared before the Governor and Council in December 1765 for the Town of Boston to pray that the courts be opened without stamps. Although his arguments took account of the political nature of the body which he was addressing, his notes show that he backed up rhetoric with authority, relying upon the kind of argument that had earlier been made against writs of assistance. The petition was denied on the ground that the question was a judicial one, but the Inferior Court soon opened in acquiescence to popular pressures. The Superior Court was formally opened, but did only token business until news of the Stamp Act’s repeal was received in May 1766.
       Along with repeal, most of the duties of 1764 were reduced to acceptable levels. The enforcement provisions were not repealed, however. Calm temporarily prevailed until a change of governments in England brought Charles Townshend, long a proponent of colonial taxation, to the post of Chancellor of the Exchequer. The Townshend Acts of 1767 again laid duties upon American imports, to be used in part to pay colonial officials independently of the legislatures. The Acts renewed the drive for strict enforcement by authorizing the appointment of an American Board of Customs Commissioners to sit at Boston and exercise the powers formerly held by the English Commissioners. At the same time the superior court created in 1764 was superseded by four new district courts of Admiralty, to sit at Halifax, Boston, Philadelphia, and Charleston, and exercise both original and appellate jurisdiction over surrounding provinces.
       Adams does not seem to have tried a revenue case in the Court of Admiralty before 1768. In that year, however, the activities of the Commissioners inevitably drew him into such matters. Their immediate application of the new enforcement policy increased the number of actions in Admiralty to the point where there was need for additional lawyers. Further, the Commissioners’ policy aroused an immediate opposition among the merchants who seemed determined to spare no effort in resistance. Accordingly, Adams’ first such case, Folger v. The Cornelia, No. 45, which was a direct confrontation between the Commissioners and those who had found the previous administration more agreeable, marked the beginning of a busy year and a half in the Court of Admiralty.
       The seizure of John Hancock’s sloop Liberty in June 1768 provided the focus for the attack upon the Commissioners. Adams was deeply involved in this affair, both as counsel for Hancock in an action brought against him for penalties, and as a draftsman of political manifestos for the Town of Boston. At the same time there was a steady stream of less important revenue litigation in which Adams participated, perhaps because he was in court on Hancock’s business. Although Adams was politically committed to opposition to the Acts of Trade, he was of counsel for Crown officers in two cases in the spring and summer of 1769. As a lawyer, he had a right, if not a duty, to give his services to those who sought them. In view of the political situation, however, it is likely that he was under heavy pressure from the Crown to yield a more permanent allegiance. In his Autobiography, Adams wrote that sometime during 1768 Jonathan Sewall had asked him to take over his position as advocate general in Admiralty. Adams reported that he had had no trouble in refusing this offer, since he wished to be under no obligation to those whose political principles he opposed. There is other evidence that some such episode took place. Perhaps Adams’ legal activities for the Crown indicate that he gave Sewall’s proposal more serious consideration than he was later willing to admit.
       The uproar over the Liberty led the Crown to send troops to Boston. The presence of soldiers and continued tension over the Commissioners’ activities led at length to the Boston Massacre in March 1770 (Nos. 63, 64). In the aftermath of this episode the troops were withdrawn, and the Commissioners, who were accused of instigating both the Massacre and the earlier shooting of a small boy by their employee Ebenezer Richardson (No. 59), greatly moderated their tactics. The Boston merchants, feeling a revulsion against civil disobedience, in the fall abandoned the policy of nonimportation with which they had reacted to the Townshend Acts. Parliament had contributed to the atmosphere of conciliation in March by repealing all of the Townshend duties except the tax on tea.
       So far as is known, Adams had no Admiralty cases for nearly three years after the summer of 1769. Although he may have withdrawn from practice in the court in disgust at the political ramifications, there are other possible explanations. In 1769 his business in the common-law courts drastically increased to the level where it was to remain until the Revolution. At the same time the atmosphere of conciliation following the Massacre had greatly reduced the number of customs cases and diminished the political tension which had surrounded such matters. A balance of interests in favor of the economics of the profession probably accounts for Adams’ abandonment of the Admiralty.

       Whatever the reason, he does not seem to have appeared there again until February 1772, when he was retained in the first appeal brought before the Boston District Court of Admiralty since its creation in 1768. Robert Auchmuty, previously judge for the Province, had been appointed to the new court, but he had apparently continued to sit in his former capacity also, thus rendering appeals of doubtful value in Massachusetts. The decision in this case had been given by Auchmuty’s deputy in New Hampshire, however. In his diary Adams noted that “as it is a new Thing the Judge has directed an Argument, and a Search of Books concerning the Nature of Appeals by the civil Law. I found Time to look into Calvins Lexicon Title Appellatio and Provocatio, and into Maranta, who has treated largely of Appeals. Borrowed Ayliff, but there is no Table and could find nothing about the Subject. Domat I could not find.” The appeal and another from the condemnation of a vessel belonging to John Langdon of New Hampshire, were decided in favor of the Crown, presumably in spite of the efforts of Adams, who was probably on the side of the claimants.
       Adams did undertake at least two revenue cases in 1772 and 1773. Although the burning of the revenue cutter Gaspee in Rhode Island and the special tribunal appointed to investigate the incident had awakened political responses in him and in many others, his later cases had no particular political relevance, except as further evidence to the colonists of the oppressiveness of the system. The tax on tea, left unrepealed in 1770, finally led to the events which terminated whatever uneasy truce remained and took political dispute beyond the confines of the courtroom. In 1773 Parliament had saved the East India Company from collapse by an Act allowing it a full drawback of English duties on tea shipped to the colonies, and permitting it to ship directly to colonial consignees, instead of dealing through English tea merchants. With these advantages, the Company could now compete with the smugglers who had been evading the duty regularly since 1770. An increase in the sales of legally imported tea meant an increase in duties. More revenues meant more funds to be applied under the Townshend Acts to pay the salaries of royal officials. This threat aroused Boston, and other colonial ports, to action.

       The first of the tea ships, the Dartmouth, arrived in Boston harbor on 28 November, and, apparently at the request of the Committee of Correspondence, came up to the town on the 30th, taking a berth at Griffin’s Wharf the next day. There she was soon joined by other vessels. The ships had apparently entered at the Custom House soon after arrival, but none of the tea was unloaded. The “Body,” the ad hoc mass meeting which purported to speak for Boston, demanded that the ships be sent home with cargo still intact, but the owners were unable to comply. The customs officers refused to issue clearances until the tea had been unloaded, and Governor Hutchinson would not allow the province naval officer to give the vessels a pass to leave the port without a clearance.
       In this state of things the owners of the Dartmouth sought counsel from Adams and Sampson Salter Blowers. The owners probably wanted both arguments to use before the customs officials and Hutchinson, and advice on the potential liability of the Dartmouth and her cargo for seizure. The account of the vessel’s master shows that Adams and Blowers were paid a total of £7 4s. for “advice,” but no indication of its nature has survived. Under the applicable statutes duties were due upon “importation” and goods could be seized if duties remained unpaid twenty days after entry. The principal questions were probably whether there had been an “importation” within the Act when bulk had not been broken, and if there had, whether the customs officers could nevertheless clear out vessel and cargo without payment of duties. Before these questions could be raised in any legal proceeding, events made them moot. On 16 December Hutchinson refused a last request for a pass and an immortal band of Indians proceeded to dump the tea into Boston Harbor, in what Adams described in his diary as “the most magnificent Movement of all.”
       In reaction to this act of defiance, Parliament passed the Boston Port Act and other coercive measures designed to punish the Town and its supporters by terminating its trade and abridging provincial self-government. Adams does not seem to have had further cases in the Vice Admiralty Court, but he was at least present to report a case in which the Port Act was put to the test there in the summer of 1774 (No. 53). In the meantime the colonies had begun to move toward union, revolution, and independence. The First Continental Congress sat at Philadelphia in September 1774, with Adams among its members. Before independence was formally declared, the British sought to bring the colonies to heel by Act of Parliament, extending the Port Act to other colonial ports. Finally Britain laid a total embargo on colonial commerce in a statute that was not an Act of Trade, but a measure regulating the taking and distribution of prizes. Adams’ only contact with this later legislation was in the somewhat different context of prize litigation during the Revolution.


Title: Adams’ “Abstract of the Argument”: Ca. April 1761
From: Adams, John
To:

       Boston Superior Court February 1761.
       On the second Tuesday of the Court’s sitting, appointed by the rule of the Court for argument of special matters, came on the dispute on the petition of Mr. Cockle and others on the one side, and the Inhabitants of Boston on the other, concerning Writs of Assistance. Mr. Gridley appeared for the former, Mr. Otis for the latter. Mr. Thacher was joined with him at the desire of the Court.

       Mr. Gridley. I appear on the behalf of Mr. Cockle and others, who pray “that as they cannot fully exercise their Offices in such a manner as his Majesty’s Service and their Laws in such cases require, unless your Honors who are vested with the power of a Court of Exchequer for this Province will please to grant them Writs of Assistance. They therefore pray that they and their Deputies may be aided in the Execution of their Offices by Writs of Assistance under the Seal of this Court and in legal form, and according to the Usage of his Majesty’s Court of Exchequer in Great Britain.”
       May it please your Honors, it is certain it has been the practice of the Court of Exchequer in England, and of this Court in this Province, to grant Writs of Assistance to Custom House Officers. Such Writs are mentioned in several Acts of Parliament, in several Books of Reports; and in a Book called the Modern Practice of the Court of Exchequer, We have a Precedent, a form of a Writ, called a Writ of Assistance for Custom house Officers, of which the following a few years past to Mr. Paxton under the Seal of this Court, and tested by the late Chief Justice Sewall is a literal Translation.
       The first Question therefore for your Honors to determine is, whether this practice of the Court of Exchequer in England (which it is certain, has taken place heretofore, how long or short a time soever it continued) is legal or illegal. And the second is, whether the practice of the Exchequer (admitting it to be legal) can warrant this Court in the same practice.
       In answer to the first, I cannot indeed find the Original of this Writ of Assistance. It may be of very antient, to which I am inclined, or it may be of modern date. This however is certain, that the Stat. of the 14th. Char. 2nd. has established this Writ almost in the words of the Writ itself. “And it shall be lawful to and for any person or persons authorised by Writ of Assistance under the seal of his Majesty’s Court of Exchequer to take a Constable, Headborough, or other public Officer, inhabiting near unto the place, and in the day time to enter and go into any house, Shop, Cellar, Warehouse, room, or any other place, and in case of Resistance, to break open doors, Chests, Trunks and other Package, and there to seize any kind of Goods or Merchandize whatever prohibited, and to put the same into his Majesty’s Warehouse in the Port where Seisure is made.”
       By this act and that of 12 Char. 2nd. all the powers in the Writ of Assistance mentioned are given, and it is expressly said, the persons shall be authorised by Writs of Assistance under the seal of the Exchequer. Now the Books in which we should expect to find these Writs, and all that relates to them are Books of Precedents, and Reports in the Exchequer, which are extremely scarce in this Country; we have one, and but one that treats of Exchequer matters, and that is called the “Modern practice of the Court of Exchequer,” and in this Book we find one Writ of Assistance, translated above. Books of Reports have commonly the Sanction of all the Judges, but books of Precedents never have more than that of the Chief Justice. Now this Book has the Imprimatur of Wright, who was Chief Justice of the King’s Bench, and it was wrote by Brown, whom I esteem the best Collector of Precedents; I have Two Volumes of them by him, which I esteem the best except Rastall and Coke. But we have a further proof of the legality of these Writs, and of the settled practice at home of allowing them; because by the Stat. 6th Anne which continues all Processes and Writs after the Demise of the Crown, Writs of Assistance are continued among the Rest.
       It being clear therefore that the Court of Exchequer at home has a power by Law of granting these Writs, I think there can be but little doubt, whether this Court as a Court of Exchequer for this Province has this power. By the Statute of the 7th. & 8th. W. 3d., it is enacted “that all the Officers for collecting and managing his Majesty’s Revenue, and inspecting the Plantation Trade in any of the said Plantations, shall have the same powers &c. as are provided for the Officers of the Revenue in England; also to enter Houses, or Warehouses, to search for and seize any such Goods, and that the like Assistance shall be given to the said Officers as is the Custom in England.”
       Now what is the Assistance which the Officers of the Revenue are to have here, which is like that they have in England? Writs of Assistance under the Seal of his Majesty’s Court of Exchequer at home will not run here. They must therefore be under the Seal of this Court. For by the law of this Province 2 W. 3d. Ch. 3 “there shall be a Superior Court &c. over the whole Province &c. who shall have cognizance of all pleas &c. and generally of all other matters, as fully and amply to all intents and purposes as the Courts of King’s Bench, Common Pleas and Exchequer within his Majesty’s Kingdom of England have or ought to have.”
       It is true the common privileges of Englishmen are taken away in this Case, but even their privileges are not so in cases of Crime and fine. ’Tis the necessity of the Case and the benefit of the Revenue that justifies this Writ. Is not the Revenue the sole support of Fleets and Armies abroad, and Ministers at home? without which the Nation could neither be preserved from the Invasions of her foes, nor the Tumults of her own Subjects. Is not this I say infinitely more important, than the imprisonment of Thieves, or even Murderers? yet in these Cases ’tis agreed Houses may be broke open.
       In fine the power now under consideration is the same with that given by the Law of this Province to Treasurers towards Collectors, and to them towards the subject. A Collector may when he pleases distrain my goods and Chattels, and in want of them arrest my person, and throw me instantly into Goal. What! shall my property be wrested from me!—shall my Liberty be destroyed by a Collector, for a debt, unadjudged, without the common Indulgence and Lenity of the Law? So it is established, and the necessity of having public taxes effectually and speedily collected is of infinitely greater moment to the whole, than the Liberty of any Individual.
       Thacher. In obedience to the Order of this Court I have searched with a good deal of attention all the antient Reports of Precedents, Fitz. N. Brev. and the Register, but have not found any such Writ as this Petition prays. In the latter indeed I have found Two Writs which bear the Title of Brev. Assistentice, but these are only to give possession of Houses &c. in cases of Injunctions and Sequestration in Chancery. By the Act of Parliament any private Person as well as Custom House Officer may take a Sheriff or Constable and go into any Shop &c. and seize &c. (here Mr. Thacher quoted an Authority from Strange which intended to shew that Writs of Assistance were only temporary things).
       The most material question is whether the practice of the Exchequer is good ground for this Court. But this Court has upon a solemn Argument, which lasted a whole day, renounc’d the Chance of Chancery Jurisdiction which the Exchequer has in Cases where either party is the King’s Debtor.
       In England all Informations of uncustomed or prohibited Goods are in the Exchequer, so that the Custom House Officers are the Officers of that Court under the Eye and Direction of the Barons and so accountable for any wanton exercise of power.
       The Writ now prayed for is not returnable. If the Seizures were so, before your Honors, and this Court should enquire into them you’d often find a wanton exercise of power. At home they seize at their peril, even with probable Cause.

        Otis:

        May it please your Honours,

       I was desired by one of the court to look into the books, and consider the question now before the court, concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but also in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare, that whether under a fee or not, (for in such a cause as this I despise a fee) I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is. It appears to me (may it please your honours) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in an English law-book. I must therefore beg your honours patience and attention to the whole range of an argument, that may perhaps appear uncommon in many things, as well as points of learning, that are more remote and unusual, that the whole tendency of my design may the more easily be perceived, the conclusions better descend, and the force of them better felt.
       I shall not think much of my pains in this cause as I engaged in it from principle. I was sollicited to engage on the other side. I was sollicited to argue this cause as Advocate-General, and because I would not, I have been charged with a desertion of my office; to this charge I can give a very sufficient answer, I renounced that office, and I argue this cause from the same principle; and I argue it with the greater pleasure as it is in favour of British liberty, at a time, when we hear the greatest monarch upon earth declaring from his throne, that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown. And as it is in opposition to a kind of power, the exercise of which in former periods of English history, cost one King of England his head and another his throne. I have taken more pains in this cause, than I ever will take again: Although my engaging in this and another popular cause has raised much resentment; but I think I can sincerely declare, that I cheerfully submit myself to every odious name for conscience sake; and from my soul I despise all those whose guilt, malice or folly has made my foes. Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy a gentleman, or a man are, to sacrifice estate, ease, health and applause, and even life itself to the sacred calls of his country. These manly sentiments in private life make the good citizen, in public life, the patriot and the hero.—I do not say, when brought to the test, I shall be invincible; I pray GOD I may never be brought to the melancholy trial; but if ever I should, it would be then known, how far I can reduce to practice principles I know founded in truth.—In the mean time I will proceed to the subject of the writ. In the first, may it please your Honours, I will admit, that writs of one kind, may be legal, that is, special writs, directed to special officers, and to search certain houses, &c. especially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person, who asks, that he suspects such goods to be concealed inthose very places he desires to search. The Act of 14th Car. II. which Mr. Gridley mentions proves this. And in this light the writ appears like a warrant from a justice of peace to search for stolen goods. Your Honours will find in the old book, concerning the office of a justice of peace, precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses specially named, in which the complainant has before sworn he suspects his goods are concealed; and you will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition being general is illegal. It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance to search special houses, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself before I proceed to other Acts of Parliament.
       In the first place the writ is universal, being directed “to all and singular justices, sheriffs, constables and all other officers and subjects, &c.” So that in short it is directed to every subject in the king’s dominions; every one with this writ may be a tyrant: If this commission is legal, a tyrant may, in a legal manner also, controul, imprison or murder any one within the realm.
       In the next place, it is perpetual; there’s no return, a man is accountable to no person for his doings, every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the arch angel shall excite different emotions in his soul.
       In the third place, a person with this writ, in the day time may enter all houses, shops, &c. at will, and command all to assist.
       Fourth, by this not only deputies, &c. but even their menial servants are allowed to lord it over us—What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God’s creation. Now one of the most essential branches of English liberty, is the freedom of one’s house. A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom house officers may enter our houses when they please—we are commanded to permit their entry—their menial servants may enter—may break locks, bars and every thing in their way—and whether they break through malice or revenge, no man, no court can inquire—bare suspicion without oath is sufficient. This wanton exercise of this power is no chimerical suggestion of a heated Brain—I will mention some facts. Mr. Pew had one of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware, so that these writs are negotiable from one officer to another, and so your Honours have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this.—Mr. Justice Wally had called this same Mr. Ware before him by a constable, to answer for a breach of the Sabbath day acts, or that of profane swearing. As soon as he had done, Mr. Ware asked him if he had done, he replied, yes. Well then, says he, I will shew you a little of my power—I command you to permit me to search your house for unaccustomed goods; and went on to search his house from the garret to the cellar, and then served the constable in the same manner. But to shew another absurdity in this writ, if it should be established, I insist upon it every person by 14th of Car. II. has this power as well as Custom-house officers; the words are, “it shall be lawful for any person or persons authorized, &c.” What a scene does this open! Every man prompted by revenge, ill humour or wantonness to inspect the inside of his neighbour’s house, may get a writ of assistance; others will ask it from self defence; one arbitrary exertion will provoke another, until society will be involved in tumult and in blood. Again these writs are not returned. Writs in their nature are temporary things; when the purposes for which they are issued are answered, they exist no more; but these monsters in the law live forever, no one can be called to account. Thus reason and the constitution are both against this writ. Let us see what authority there is for it. No more than one instance can be found of it in all our law books, and that was in the zenith of arbitrary power, viz. In the reign of Car. II. when Star-chamber powers were pushed in extremity by some ignorant clerk of the Exchequer. But had this writ been in any book whatever it would have been illegal. All precedents are under the controul of the principles of thelaw. Lord Talbot Says, it is better to observe these than any precedents though in the House of Lords, the last resort of the subject. No Acts of Parliament can establish such a writ; Though it should be made in the very words of the petition it would be void, “An act against the constitution is void.” Vid. Viner. But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The Act of 7th and 8th of William III. that the officers of the plantations shall have the same powers, &c. is confined to this sense, that an officer should show probable grounds, should take his oath on it, should do this before a magistrate, and that such magistrate, if he thinks proper should issue a special warrant to a constable to search the places. That of 6th of Anne can prove no more.
       It is the business of this court to demolish this monster of oppression, and to tear into rags this remnant of Starchamber tyranny—&c.
       The court suspended the absolute determination of this matter. I have omitted many authorities; also many fine touches in the order of reasoning, and numberless Rhetorical and popular flourishes.


Title: Editorial Note
From:
To:

       In this, Adams’ earliest known appearance in an Admiralty action for a violation of the Acts of Trade, he and James Otis argued for Timothy Folger, Searcher and Preventive Officer at Nantucket. The lawyers were not engaged on the side of royal authority, however. Folger was a native of the island, sympathetic to Massachusetts mercantile interests. Arrayed against him were the customs officers of the port of Boston, backed by the newly created American Board of Customs Commissioners.
       The Boston customs establishment, like that in other English and colonial ports, was under the joint control of a Collector and a Comptroller. Until 1767 these officers were appointed by the Commissioners of Customs in England, and were responsible to John Temple, Surveyor General of the Customs for the Northern District, also an appointee of the Commissioners. Temple was empowered to exercise disciplinary control over inferior officers and add his efforts to theirs in the control of illicit trade throughout the northern colonies. Acting in this capacity, he had commissioned Folger to serve at Nantucket in 1764.
       The Boston officers, Joseph Harrison, Collector, and Benjamin Hallowell, Comptroller, later claimed that they had always disapproved of Folger’s position, and there is reason to believe that this claim was not entirely the product of hindsight. In the first place, there was a serious legal question whether Temple had power to appoint such an officer. Secondly, on a more immediate level, Nantucket was traditionally within the port of Boston, so that Folger’s presence deprived Harrison and Hallowell of a portion of the income from fees and forfeitures which was a substantial part of their compensation.
       Finally, and most important, Folger represented a threat to the security of the revenue. Temple, who took office at the time of the writs of assistance controversy in 1761 (No. 44), had at first won a reputation as a dedicated and successful officer. From the beginning he had shown sympathy with the position of the Boston merchants, however, and his feelings soon manifested themselves in an open feud with Governor Bernard of Massachusetts and in doubts of the wisdom and efficacy of parliamentary efforts to raise a revenue in the colonies. Yet, although his brush with Bernard, in which he had dismissed James Cockle, Collector at Salem, on charges of corruption, had won him the acclaim of the merchants, it had also been approved by his superiors in England.

       While Temple thus remained in favor, his appointment of Folger in 1764 is consistent with an intent to use his powers to mitigate the effect of the new duties and enforcement measures imposed by the American Act of that year. There was both practical justification and precedent for the appointment of an officer at Nantucket. The distance of the island from Boston made customs enforcement difficult and meant a long voyage around Cape Cod for vessels seeking to enter or clear. As a result, for at least forty years an officer appointed either by the Surveyor General or the Collector of Boston had been stationed there. Folger’s background suggests other purposes, however. Descended from one of Nantucket’s oldest families and deep in local politics, he had been master or part-owner in numerous whaling and trading voyages, and kept a store in which imported goods were sold. In addition he was engaged in extensive dealings in whale oil with various merchants, including John Hancock. Whether Temple intended it or not, there now existed at Nantucket a sizable loophole for evaders of the Acts of Trade.
       If the Boston customs officers had borne Folger’s appointment with misgivings, they had made no formal protest. Temple was not only their superior, but a dangerous opponent, as his contest with Bernard had shown. Moreover, the political lines were still vague enough so that, despite his opinions, Temple could not be characterized as an enemy of the revenue. The Townshend Acts, passed in the summer of 1767, changed both of these conditions. Temple’s post as Surveyor General was eliminated in the creation of the American Board of Customs Commissioners, a five-man body which was to sit at Boston and carry out the functions of control and management previously within the province of the English Customs Commissioners. Temple was made a Commissioner, but his former authority was now to be exercised by a majority of the Board.
       At the same time the political situation was solidified by the colonial reaction to the import duties laid by the Acts. Inspired by the vote of the Boston town meeting in the fall of 1767, a drive for the nonimportation of British goods developed, uniting and defining the opposition to royal authority. Folger, elected to an unruly House of Representatives in 1767, was clearly a part of this opposition. In January 1767 Temple had married Elizabeth, daughter of James Bowdoin, a prominent merchant and member of the Council, who became one of the leaders in the fight for nonimportation. Whatever his prior vacillations, Temple too was now definitely aligned with the Boston faction. The other Commissioners saw as their first duty the plugging of procedural loopholes that encouraged smuggling. Temple, who felt that compliance could be obtained without undue restrictions, was from the beginning of their deliberations an articulate but ineffective minority of one. The Boston customs officers now had both higher authority to support them in opposing Folger and a clear-cut political basis for doing so.
       After the Commissioners took office on 16 November 1767 they occupied themselves in clarifying the scope of the new statutes, which were to take effect on 20 November, and in determining the extent of their new domain and the current state of the customs establishment. From the moment when three of them arrived from England on 5 November in the midst of a well-behaved but hostile Pope Day celebration, they had been aware of the opposition to them; they thus seemed determined to move carefully.
       The first call to action came on 29 January 1768 when Folger reported that a week previously he had seized the sloop Cornelia, William Summers master, at Tarpaulin Cove in the Elizabeth Islands, the easterly boundary of Buzzards Bay. The vessel was ostensibly bound for New York from the Dutch island of St. Eustatia with a cargo of eighteen casks of Bohea tea, a commodity that could be imported only by way of England and upon payment of the new duties. He had brought the Cornelia to Nantucket, sequestered her cargo in his house, and now sought advice on how to proceed. The Commissioners referred him to their solicitor, Samuel Fitch, for legal assistance and directed him to report the seizure to Harrison and Hallowell.
       These officers at once raised the question of Folger’s authority to seize the vessel and, after consulting with Jonathan Sewall, Advocate General in Admiralty, informed Folger that his commission was invalid and that the seizure would fail if a claim were entered for the vessel or cargo. They offered, however, to let him accompany them to Nantucket to seize her again under proper authority. According to Harrison’s later account, Folger agreed to do so and to join with them in the forfeiture proceedings in exchange for a substantial share as informer. When the time came to leave for the island, however, Folger backed out, explaining that his “friends” had advised him not to join, and that he was determined to file an information in his own right. Knowing that James Otis was one of Folger’s “friends,” Harrison immediately dispatched Hallowell and George Lyde, Surveyor and Searcher of the port, to Nantucket, where they seized the Cornelia and cargo. Upon their return they found that Folger had, on 4 February, filed his information in the court of Admiralty. A new attempt to win him over failed, and, on 12 February, Harrison, Hallowell, and Lyde joined in a second information against vessel and tea.

       Hearings in both actions were set for 29 February, then continued. In the meantime other pressures were building up. On 26 February, with Folger voting in the majority, the House approved nonimportation resolutions, which pledged it, among other things, “to discountenance the use of foreign superfluities, and to encourage the manufactures of this province.” The Customs Commissioners met on 7 March and dismissed Folger, determining that a nominee of the Boston collector should be appointed in his stead. There was an immediate outcry in the press that Folger had been dismissed solely because of his vote on the resolves. The Board, in a later statement of its position, admitted asking him about his vote, but insisted that “he had been before charged with being concerned in Trade, and he was only told that the Board had no further service for him.” The Commissioners also suggested that direct opposition to the principal officers of the port and open alliance with the antigovernment faction did not constitute the conduct expected in the customs service. For whatever reason, Folger was no longer searcher and preventive officer when the case of the Cornelia came to trial.
       Both proceedings were tried in the court of Admiralty on 21 and 26 March before Judge Robert Auchmuty, probably in a combined hearing. No claim for vessel or goods appears to have been filed in either suit, but Adams and Otis were opposed by Jonathan Sewall, who had intervened in Folger’s proceeding on behalf of the Crown and was doubtless of counsel for Harrison and his associates in their information. Adams’ role is perhaps unfairly minimized in the later report of the Commissioners that Folger “having Mr. Otis for his Lawyer, the Cause was contested with great Spirit.”
       The three documents printed here are: (I) Adams’ minutes on the depositions of several witnesses as to Folger’s performance of his functions; (II) Adams’ minutes of the arguments on both sides; and (III) Auchmuty’s opinion and decree in the case, an unusual report which summarizes the arguments and deals with the questions involved in great detail.
       Sewall’s position was, first, that by statute only a duly commissioned customs officer could seize; second, that Folger had not been duly commissioned; and, third, that if his commission were valid, it had been terminated when Temple’s office was merged in that of the American Board of Customs Commissioners. In reply Adams and Otis contended that no commission was necessary for the seizure, first, because under applicable statutes evidence of reputation as an officer was sufficient; second, because Folger had been a de facto officer whose acts were valid despite lack of authority. Then they argued in the alternative that Folger’s commission was properly given by Temple, did empower him to make seizures, and was still in force despite the establishment of the American Customs Commissioners.
       On 2 April, Auchmuty handed down his opinion and decree, dismissing Folger’s information. He found that the statutes allowing reputation evidence created only a presumption, rebutted by the production of the invalid commission under which Folger had acted. Further, the common law rules validating the acts of a de facto officer were intended to protect innocent third parties who had relied upon the officer’s apparent status; they could not be taken advantage of for his own profit by the officer himself. As for the commission, Auchmuty held that Temple had no power to create new officers, and, although he might have created a deputy, he had not done so in this case, thus making it unnecessary to consider in detail the effect of the creation of the American Commissioners.
       Auchmuty’s argument on the reputation statutes seems a proper construction. As for the de facto argument, he managed to turn Otis’ own authority against him in pointing out the distinction between Folger’s case and the cases chiefly relied on. If the arguments that Folger acted in good faith and that the proceeds of the forfeiture were a kind of compensation for his efforts might have altered the result, at least in a modern view, they do not seem to have been made by counsel.

       The question of the commission is more difficult. As Adams seems to have argued, the statutes establishing the customs were vague as to the types and duties of officers, and ambiguous as to the source of the power to appoint. Temple’s general powers probably could have been read as implying an authority to create lesser officers to implement them; if so, it would seem unduly restrictive to require that this authority be exercised only through the formal creation of a deputy surveyor general. The real question was whether an officer so created had the power to seize, in view of the statutory limitation on that power. As an original matter, the language of that limitation, “officers of his majesty’s customs for the time being,” could be stretched to include a person situated as Folger was, but the point does not seem to have been pressed by Adams or Otis, and Auchmuty did not address himself to the question. Even if Folger were duly empowered to seize, however, another ground supported Auchmuty’s decision.
       This ground was the fact that not only had Temple been removed from office but that the office itself had been abolished. The analogy to officers whose powers survive the death of the principal, urged by Otis, was thus inapposite. Here, the existence of the authority which had created the lesser office, rather than the life of the individual who had made the appointment, had terminated; it seems obvious that lesser offices also should cease to exist, barring express confirmation or ratification. Adams and Otis urged certain statutes as confirmatory, but these acts clearly applied only to appointments by the English Commissioners. They apparently did not argue that the American Commissioners had ratified Folger’s appointment by keeping him on after November 1767, or even by dismissing him as unfit, rather than as a usurper. Thus, despite the obvious political advantage in a finding against Folger, Auchmuty’s opinion seems on the merits to be sound.
       Having dismissed Folger’s information, Auchmuty on 4 April decreed in favor of Harrison, Hallowell, and Lyde in the other proceeding. Folger appealed both decisions to the High Court of Admiralty, but the result is not known. In any event, the vessel was sold, and the governor received his one-third share. The victory can have been small consolation to the Commissioners, however; they were almost at once embroiled in the disastrous consequences of the seizure of John Hancock’s sloop Liberty (No. 46), which demonstrated that countering colonial resistance was more than a matter of plugging loopholes.
       Not satisfied with the ordinary appellate process, Folger sailed to England in August 1768. There he petitioned the Lords of the Treasury for relief, asserting that the Cornelia and his position had both been unjustly taken away from him and that, as he had given up his position as shipmaster to serve as a customs officer, he was “now out of all employ whatsoever.” The last was a manifest exaggeration since he had been master on the voyage that brought him to England. His memorial was referred to the American Board of Customs Commissioners, who finally replied on 24 July 1769, denying the validity of Folger’s complaints and pointing out his relations with the antigovernment faction. No record has been found of further action on the matter, but Folger was doubtless able to survive his losses, thanks to various maritime and mercantile ventures, which, despite his protestations, he never seems to have abandoned completely. That he did not fall out of political favor altogether appears in his appointment as Justice of the Peace for Nantucket County in 1771. Thereafter, he went on to play a leading role in that peculiar mixture of seamanship and diplomatic intrigue which was Nantucket’s brief flirtation with neutrality during, and for a decade or so after, the Revolution.


Title: Adams’ Minutes of the Testimony: Court of Vice Admiralty, Boston, March 1768
From: Adams, John
To:

       Folger vs. Tea

        James Athern Esqr.

       Joshua Gardiner. Folger has entered and cleared Vessell I am concerned in to and from London. Commonly reputed a Custom House Officer at Nantucket. Have seen a Plantation Certificate signed by him, the Governor and Peleg Gardiner Naval Officer.

       Jno. Handcock Esqr. Cleared two Vessells that Deponent is concernd in for London, since the arrival of the Commissioners. And has acted in all Respects, with the Regard to my Navigation at Nantucket, as the officers of the Customs do here. Commonly reputed an officer of the Customs. I know of his Acting, by his clearing my Vessells. I cant say I ever saw a Clearance of his signing, or saw him sign one. I know of his Clearing my Vessells by the Consequences for that the Vessells were admitted to an Entry in London. And others here by the Officers here.
       Thos. Gray. Dep. vide
       Mr. Sheaf. Have seen Papers of his signing, as Searcher and preventive Officer at Nantucket. Coasting Clearances. I acted under Sir H. Frankland, as Deputy Collector for this Port, for some Years. Mr. Harrison the present Collector, wrote a Letter to Mr. Folger giving him Instructions about a Vessell with sugars at Nantucket.
       Captn. Partridge. Used to London Trade. Made many Voyages there. Papers are demanded of Us, on our Arrival by the Custom House Officers. Clearance from the Customs demanded. Once admitted to an Entry without producing my Clearance, but was soon sent for by the Clerk and told by the Clerk that he had done wrong, and that the Clearance was his only Security, for Entering me. Never admitted upon Producing Manifest and Register, except in the above Instance.


Title: Adams’ Minutes of the Argument: Court of Vice Admiralty, Boston, March 1768
From: Adams, John
To:

       Folger vs. Hallowell.
       The Affairs and Transactions of the Customs and Revenue, are very loose. Customs and Duties and subsidies, have from Time to Time been granted by Parliament to his Majesty and the Collection and Management of them has been committed by Parliament to his Majesty, in short the Crown seems to have been entrusted with a discretionary Power by the Parli of appointing as many Sorts of Officers and as many in Number, as are or shall be thought convenient. We hear of Surveyors, Collectors, Searchers, and Comptrollers but there is not any act of Parliament, which describes and limits their Provinces and Powers.
       Compare the Commission of the Commissioners with the Act of Parliament on which it is grounded. How small the Foundation! How mighty the super Structure! Are there no Powers in the Commission which are not pointed out in the Act?

       Compare the Act that empowers the King to constitute Commissioners at Home, with the Powers exercisd by them, and by the late Surveyors General as Representatives of them. The Commission empowers to suspend, and remove &c. Does the Act of Parliament enable the K. to give such Powers to Commissioners?
       Where did Mr. Lechmere get his Authority to suspend Mr. Barons as Collector of this Port? He claimed an Authority, and exercised it of suspending. Yet there is no Act of Parliament in the whole Statute Book, that enables the K. or Commissioners of Customs or any Body else to create such an officer as Surveyor General.

        Sewall.

       Folgiers Commission. Preventive officer. In my behalf. All Temples Authority ceased, on Arrival of Commissioners. Made vs. Claimers. Exclusion of officers and their dues.
       Reputation and Exercise sufficient. 6. G. 1, c. 21, §24. 11. G. 1, c. 30, §32.

       Continuance of Deputations &c. after Death of Commissioners. 12. Ann. St. 2, c. 8, §13.
       Comrs. of Customs. 25th. Car. 2, Chap. 7 §3.
       Comrs. of Customs and Lds. of Treasury to appoint officers. 7. & 8. W. 3. Chapt. 22§11.

       7. G. 3d
       Mr. Otis. Admitted an officer De Facto, and therfore have given up their Cause. Distinction between King De Jure and De Facto. Maxim officers to be favoured.
       Viners Abridgment Tit. Officers, and Offices G, Plea 2. Keeper of Goal De Facto, and De Jure. Mayor De Facto. G. 4, Plea 2. All Judicial Acts shall be good.Colour of Election all Judicial and Ministerial Acts good.

       Evidence that he was in Fact an officer, an officer De Facto.
       If it should appear that the King was deceived in his Grant and issued a Commission to the Commissioners that was void, would it be pretended that all their Acts and Orders through the Continent were void? No. Their Reputation And Exercise, sufficient to make their Acts and orders good.
       All the Officers Comptrollers, Searchers Inspectors and even Commissioners them selves are only Preventive officers, none of them are to collect his Majesty’s Duties.
       Wonderfull Parenthesis (in my Behalf). These Words cant make Folger a Deputy, merely Surplussage, currente Calamo, and may go out again without injuring the Commission.
       If not rejected as surplusage, yet capable of several Constructions that will not vitiate or render void the Commission.
       Whether the Surveyor General had, and the Commissioners have a Power to dismember a Port, or to make any Alterations in a Port, Yet if they will undertake to do it, it must be good till set aside by superiour Authority.
       Lechmere went to England and appointed Coll. Brinley his Deputy in his Absence, and many of the officers got him to allow them salaries &c. Wages, Fees or some thing that they never could get before, and particularly the present Commissioner Paxton got a large sum at that Time.

       A Deputy Sherriff would be liable to an Action if he should act after the death of his Principal, but this is not the Case of the Custom House officers. Their Deputations or other Authorities, are not nullified by the Demise of the Crown, any more than the Judges.
       2 Lev. 131. 10. Co.——.
       Sewall. General Question, whether Mr. Folger had any Authority to make the Seizure.
       The supposition of his having another Commission besides this from Temple.
       Q. whether I have not offered such Evidence of his Having no Authority, as shall oblige Folger to produce his some other Commission.
       The Act of 6. G. 1, c. 21, §24. intended for the security of the Officers and off the Revenue. It is inconsistent with Common sense to suppose that the Legislature had any such Case in View, as this before your Honour.
       This Act not extended to America.
       I believe there is no Bottom to this Affair of the Customs.
       By fair Contract the officers entituled to all the Fees within Their District.

       In my Behalf, intended to make him Deputy, not to make a new office or officer. No Person can make a Deputy but the Principal. No Surveyor General can make a Deputy Collector, any more than I, as Advocate can make a Deputy Judge of Admiralty, or than your Honour can make Deputy Advocate General.
       Surveyor and Searcher.