Title: Adams’ Notes of Statutes and Authorities: Court of Vice Admiralty, Boston, February 1773
From: Adams, John
To:

       George Dawson Esqr. vs. The Sloop Dolphin, Walson, Lothrop and others owners.
       This Vessell was seized merely for the omission of an Indorsement upon her Register.
       7. & 8. W. 3d, c. 22. An Act for preventing Frauds and regulating Abuses in the Plantation Trade.
       §.2: Be it enacted, that after 25th March 1698— “No Goods or Merchandises, shall be imported into or exported out of, any Colony or Plantation, to his Majesty in Asia, Africa, or America, belonging, or in his Possession, or which may hereafter belong unto, or be in the Possession of his Majesty, his Heirs or Successors, or shall be laden in, or carryed from any one Port or Place in the said Colonies or Plantations, to any other Port or Place in the same, the Kingdom of England, Dominion of Wales, or Town of Berwick upon Tweed, in any Ship or Bottom but what is, or shall be of the built of England, or of the Built of Ireland or the said Colonies or Plantations, and wholly owned by the People thereof, or any of them, and navigated with the Masters, and three fourths of the Mariners of the said Places only” (except Prize ships &c. and foreign ships employed for 3 years to bring in naval Stores) “Under Pain of Forfeiture of Ship and Goods” 1/3 to the King, 1/3 to the Governor, 1/3 to the Informer.
       §.17. “For the more effectual Prevention of Frauds which may be used to elude the Intention of this Act by colouring Foreign Ships under English Names;” be it further enacted, &c. that, “No Ship, or Vessell, shall be deemed or pass, as a Ship of the Built of England, Ireland, Wales, Berwick, Guernsey, Jersey, or any of his Majestys Plantations in America so as to be qualified to Trade to, from, or in, any of the said Plantations untill the Person, or Persons, claiming Property in such Ship or Vessell shall register the same as follows, that is to say, if the Ship, at the Time of such Register doth belong to any Port in England, Ireland, Wales, or to the Town of Berwick upon Tweed, then Proof shall be made upon oath of one or more of the owners of such Ship or Vessell, before the Collector, and Comptroller, of his Majestys Customs in such Port; or if at the Time of such Register, the Ship belong to any of his Majestys Plantations in America, or to the Islands of Guernsey or Jersey, then the like Proof to be made before the Governor, together with the Principal officer of his Majesty’s Revenue residing on such Plantation or Island” &c.
       Form of the oath.
       §.18. “Which Oath, being attested by the Governor or Custom officer, respectively who administered the same, under their Hands and Seals, shall after having been registered by them, be delivered to the Master of the Ship for the Security of her Navigation, a Duplicate of which Register shall be immediately transmitted to the Commissioners of Customs in the Port of London, in order to be entered in a general Register to be there kept for this Purpose, with Penalty upon any Ship or Vessell trading to, from, or in any of his Majesty’s Plantations in America” &c. “and not having made Proof of her Built and Property, as is here directed that she shall be liable, and she is hereby made liable, to such Prosecution and Forfeiture, as any foreign ship” (except Prizes &c.) “would for trading with those Plantations by this Law be liable to.”
       Prize ships to be registered &c. Fisher Boats, Hoys &c. Lighters &c. not to be registered.
       §. 21. “That No Ships Name registered shall be afterwards changed, without registering such Ship de Novo, which is hereby required to be done, upon any Transfer of Property to another Port, and delivering up the former Certificate to be cancelled, under the same Penalties, and in the like Method, as is herein before directed; and that in Case there be any alteration of Property in the same Port, by the Sale of one or more Shares in any Ship after registering thereof, such Sale shall always be acknowledged by Indorsement on the Certificate of the Register before two Witnesses, in order to prove that the entire Property in such Ship remains to some of the Subjects of England, if any dispute arises concerning the same.”
       Rules of Construction. Woods Inst. 8.—3. Rep. 7.b.—4. Inst. 330.—4 Bac. Abr. 652. 1 Blackst. Com. 87. 88.—1. Inst. 11.b.


Title: Auchmuty’s Opinion and Decree: Court of Vice Admiralty, Boston, 2 March 1773
From: Auchmuty, Robert Jr.
To:

       George Dawson Esqr. vs. Sloop Dolphin and Cargoe.
       This Libel is bottomed on the Act of the 7. & 8. Will. 3 Cap. 22. Those parts therefore of the Act, which relates to the present case must be thoroughly considered.
       The facts either proved, or granted, by the Advocates on both sides are, that said sloop was built at Marshfield in this province by inhabitants of the same, and by them owned. In the Year 1759 was duly registered, afterwards by the original was sold to the present owners and claimants, who are inhabitants of the same port with her former owners, that she has been always navigated with three fourths, at least, of english subjects, and that her original name has never been changed. But that on the transferr to the present owners, there was neither a new register taken out, nor any indorsement on the certificate of the old one, and that said Vessell and Cargo being inward bound were seized by said Dawson at a place called Holmes’s hole within the port of Boston.
       The Advocate General insisted, that a vessel and cargo under the abovementioned circumstances are forfeited by force of the said Statute. Because all vessels, together with their Cargoes, trading to or from the plantations, which are not qualified as the Act directs, are thereby declared forfeit. That the words used in the seventeenth section thereof “deemed or pass” signify adjudged or decreed, and therefore taken in that sense, must relate to a Court and not to Custom Officers. That this Act ought not to be considered as a penal one, because the forfeiture therein given is not annexed to any crime, for which the Actor is to suffer corporally, but only to a neglect. And therefore, the rules urged by the gentlemen on the other side touching the construction of penal Statutes, are not applicable to the present case. That the importance of this Act, resulting from its great public utility ought to draw such a construction, as will operate very Severely against Claimants. That the last clause in the Act relates only to a partial transfer of a vessel, the words being “and that in case of any alteration of property in the same port, by the sale of one or more Shares in any ship after registering thereof, such sale shall always be acknowledged by indorsement on the certificate of the register before two witnesses” &c. That by using those words “one or more Shares,” it is evident only a partial transfer was intended. That this last clause must be taken as part of the general plan of the Act, and therefore must be construed as connected with and relative to the penal parts of it. That the Statute does not say a subject shall forfeit his vessell for not registering her but that she shall not be qualified to trade, and therefore if she does without being registered, she ought, to all intents and purposes, be adjudged a foreign vessell, and so the Cargo condemnable as much as if seized on board a trading vessel actually belonging to foreigners.
       By the Gentlemen on the other side, it was urged, that as indorsements on the Certificate of the register were not practiced till of late nor even required at the Custom houses, it would be against equity now to mark such instances with the utmost severity. That, as there is not the least Shade of proof, or even a suggestion of fraud, in this case, it is not within the mischief intended to be remedied by the Statute. That the words “deemed or pass” ought not to be construed adjudged or decreed, but more properly are to be understood only as directory to Officers of the customs in the entering and clearing of vessels. That penal Statutes ought not constructively to be extended, because such a practice is against the well known and established rules of law, and in Support of which they produced several good authorities. That as no fraud was either committed or designed in this case, the Statute ought not to be construed Strictly against them, even if it was not penal. But that the same is penal and therefore a fortiori it cannot. That the last clause in the Act has no penalty annexed to it, nor can that clause consistent with the Authorities mentioned be made by construction to relate to the preceeding parts of the Statute mentioning penalties. But if at all it must be confined to the forfeiture expressed in the eighteenth section, which extends only to the vessell. These were the principal matters mentioned and relied on by the gentlemen on both sides; some of which do not appear to me to deserve much notice in the present case.
       In determining this cause first great care must be taken in making a true distinction between such parts of the Act, as relate entirely to vessels the property of foreigners, and those which only respect english built and owned vessels, tho’ not registered pursuant to the directions of the Act. Because on a supposition, that the vessel now libelled against is forfeit a question will Arise, whether the Cargo is also, which question entirely rests on that distinction.
       Secondly, whether this Act is to be considered as penal. Because, the rules of construing such Acts, are variant from those which relate to, and govern Acts which are not. And lastly, what is the legal construction of the words contained in the last clause of said Act.
       In the second section of the Act Ship and goods are both declared forfeited. But then it must be recollected, that the whole of that section entirely relates to foreign built vessels, owned by foreigners and navigated by such. Indeed that section contains nothing more than a repetition of the capital act of navigation, the 12. Car. 2. excepting some additional prohibition touching the plantations. In this section there is not any mention of vessels really english built, owned by english Subjects or navigated by such: therefore such cannot be the objects of that clause not being therein mentioned. But the contrary will evidently appear by considering those subsequent parts of the same act, wherein notice is particularly taken and directions given how they shall be qualified, under a certain, and in part, a different penalty. I can not therefore conceive how, consistent with propriety or justice, the said second section, guarded by the forfeiture of ship and Cargo, and calculated for a certain express purpose can relate or be extended to a distinct detach’d part of the same Act, clearly made to regulate cases totally different and under a different forfeiture. Compare the abovementioned section with the Eighteenth, and not only the difference in point of forfeiture but the reason of it, I apprehend, will appear obvious. In the second section the Act goes entirely on the supposition, that the vessel so trading is owned by foreigners of foreign built, and not navigated by three fourths english. Doubtless if such a practice was permitted, it would have a direct tendency to enrich foreigners and prevent the increase of English shipping and seamen; therefore in such instances both vessel and cargo are declared forfeit. But in the eighteenth section, the Legislators have no such foreign vessel in view, having already made provision for such, but are guarding against certain mischiefs which might arise among their own Subjects. As the dangers and loss to goverment, where the vessell is really of english built, owned and navigated by english subjects, though not registered pursuant to the Act, can not be so great as in the Case of foreign vessels trading in the plantations, so neither ought the penalty to be. The greater the injury done to a State or an individual, the higher the punishment ought to Arrise. This I take to be one of the two great reasons for varying the penalties in the aforementioned clauses. There is also another very obvious one for the parliament’s not annexing the same penalty to the two sections. For had they done it, in some instances very great loss, and in others, total ruin might thereby have fallen upon innocent subjects; a consequence which that Legislature have always Studiously avoided, and where from the necessity of using general expressions, such an instance has come within the express letter of an Act, the common law Judges have in conformity to the designs and desires of parliament ruled it not to be within the meaning of it. This rule however is not perhaps to be taken as unlimited, but only applicable where such an exemption may safely be made, and the Act remain in its full intended force. The case alluded to is plainly that of freighters. The wisdom or justice of parliament ought never to be so impeached, as to suppose that, for the omission of an Owner, the innocent freighter who could not, in the nature of things, be privy to it, should suffer perhaps to his total ruin. Such a doctrine if once established, I imagine, would be very destructive to trade and Commerce, and therefore instead of promoting the Public interest, would have a quite contrary effect. And in Addition to what has been observed, I may safely assert, there never was, and I hope never will be found among the english law rules of construing Statutes, that a Judge shall extract the penalty from the first part of a law, calculated for one express evident purpose only, and annex it to another part of the same Act, which relates entirely to a different case and governed by different reasons; especially, when in such other part, a penalty is given in an as express terms as that Contained in the first part, though not so great. Granting an english vessel and Cargo to be seized which came within the express provision of the Eighteenth Section, and surely thats as strong a case as the present, could a Judge make an addition to that Part of the Act by condemning both vessel and Cargo, when the Act itself declares only the former liable to forfeitures. On the whole, I am clear in opinion, on supposition the vessel now libelled by law ought to remain forfeit, her Cargo ought not.
       In order to determine whether an Act is penal within the sense of the Law, it must first be enquired, whether the Common law is thereby altered, and Secondly, whether there is any penalty expressly annexed to such Act, either pecuniary or corporal. To conclude all Acts not penal, except such as inflict the latter, is contradicting rules too well established to be even called in question. Nor will it do to suppose that the general utility of an Act can exempt it from being Classed among penal Statutes; because such a conclusion proves too much. All public Statutes are made to supply some omission, or correct some defect in the common law, and in their nature must be founded in, and designed for the public Good; therefore as the law has not yet pointed out to what degree of public good such Acts must attain to prevent their being construed as penal ones, they must all remain so, which come under the first mentioned rules, or more. To affirm the latter, in direct contradiction to the many law Authorities, proving the contrary, is what I neither dare or wish to do. When a severe corporal punishment is enacted, the Argument drawn from importance and public utility, seems to me, will be stronger, for such Acts are made to prevent the most atrocious crimes, and therefore those Statutes may justly be said to be of the greatest importance and utility to the community. This doctrine however has never prevailed, nor never can untill the well known and established rules of law are entirely altered. And it is equally clear, from all the books treating on this Subject, that very many Acts, to the breach of which there is not any corporal punishment fix’d, but only a fine or forfeiture, have always been esteemed penal, and received constructions applicable to such Statutes. To enumerate instances of this kind to convince Lawyers would be a misspence of time. On a due and thorough consideration of this point, I am of opinion, that the Act in question is and must be, notwithstanding its general importance, which undoubtedly is very great, and ought in every part to be punctually complied with, determined penal, and liable to the rules of construction relative to such Acts.
       My next business is to endeavour to disclose the true meaning of the last words in the Statute, on which this Case rests.
       I have already attempted to shew a distinction between those parts of the Act which relate to foreigners, and those which appertain to English Subjects, not conforming to the express requisites of the Statute. I shall now also attempt to shew a difference between cases coming under the last paragraph of said Statute, supposing this to be one of that class for the present, and such as are within the words immediately preceeding said paragraph. Whenever an Act is introductory of new rules for the regulation of commerce, ordaining what shall be done by the subject, and the manner of doing it, namely under oath, establishing a certain penalty for the neglect thereof, and then immediately goes on to regulate cases under other and different circumstances, without mentioning any penalty or oath, it must be supposed, that the Legislators did not conceive the latter instances of such importance as the former: otherwise they would have guarded the one as strongly as the other. On no other principle can the different modes pointed out by the Act be accounted for. This is exactly the present case. The Act very clearly orders a register de novo on a vessel’s name being changed. Also on any transfer of property to another port, under, as I construe it, the forfeiture of the vessel. Then follows the last clause Vizt. “And that in case of any alteration of property in the same port, by the sale of one or more shares &c. such sale shall always be acknowledged by indorsement on the certificate of the register” &c. Is it possible, on due consideration of these two clauses to suppose, that the Parliament conceived there was in both cases a like necessity of a new register, supposing the words “one or more shares” include an entire transfer, and yet in the one, command it expressly, and in the other, which immediately follows, order a different mode. Or can it be imagined, that by guarding the first part, which they have materially differed from the last, with a certain penalty, they thereby intended the penalty should be extended by implication to the last; especially since its beyond all doubt, that the sanction of an Oath is required by the first and omitted in the last. It’s natural to conclude, had not the intention of the law makers been to have discriminated between the cases, they would have inserted those words about transfering one or more Shares in the same port before the penalty; and thereby have brought the three cases under the same predicament. By admitting the indorsement before two witnesses to be one complete mode of evidence to prove the property english, and that not under the sanction of an Oath, the Strongest bond of society, it is evident they did not think there was equal danger in such cases of evading the Act, as in the others. This, I think, must be the reason why they omitted, in the last part of the Statute, that strong requisite and the penalty. In my Opinion it is equally justifiable to condemn, where an entire transfer is made in the same port (tho’ the words share or shares only extended to a partial Sale) because there was not a new register taken out, under colour of promoting the main Scope and purpose of the Act, as to extend a penalty clearly designed for certain cases, and expressly annexed thereto, to others, apparently in the contemplation of the Legislators, of much less consequence; and whereto they did not think proper, in express terms at least, to fix any. This would not be construing an Act in conformity to any rules of law, but in fact, giving a decree in addition to an Act. Such a power would be subversive of the authority of parliament, and of all Acts. For by the same reason that a Judge could add to, he might diminish from any act, so that it would be in his power to mould them ad libitum. If the words, “any one or more Shares,” are taken as relative to and meaning a partial transfer, then the true sense of them is, that when the fact is known to the officers of the Customs, they shall have power to refuse entering or Clearing till the indorsement is made. And where it is done and produced, it shall amount, prima facie, to satisfactory evidence of the property’s being wholly english; and thereby put an end to disputes about it, and prevent great delays in business. From this view of the words, the reason why the Compilers of the Act, did neither extend the penalty or require a new register in such partial transfers, is evident. First, there is not in such instances equal danger of the Act’s being evaded, with impunity, as where a vessel is wholy transfer’d to another Port or where her name is changed. And secondly, because considering the vast numbers of transfers of quarters eighths sixteenths and other small proportions or shares of vessels, it would be laying a heavy burthen on trade, not only of the pecuniary, but troublesome kind, to require in every such instance a new register. This construction, tho’ not clear of all doubts, is much the most natural and easy, it being vastly more consistent with the other parts of the Act, than the one last contended for by the Advocate General.
       I will now particularly consider that Gentleman’s construction of this last part of the Act, and see how well his own doctrine will serve his purpose. He very Strenuously and repeatedly urged, that the words “any one or more Shares”, therein used, manifestly pointed out the meaning of Parliament. That thereby, I take his own words, “it is evident to any one, who has the least Idea of the force of english words, only a partial transfer was intended, and not an entire and complete one.” So far I incline to his Opinion. But in the Close of his Argument, he as strongly contended, that this very last part of the Act must be taken as part of the general System intended to be formed by the Act, must be connected with, and relate to the penal parts of it; and therefore as this vessel was not qualified to trade, that part of the Act, which gives the forfeiture of both vessel and Cargo, must be applied to this last part; And consequently, in the present case both are forfeited. This reasoning can not be right, because by his own doctrine the words, “any one or more Shares” mean no more than a partial transfer, which is not pretended in the present case, but the Contrary has been by him all along acknowledged, Vizt. an entire Sale of the said vessel. So that supposing his first argument right, the present case, beyond all possibility of doubt, is casus omissus. And it is equally certain granting it to be such, that it is not in any Judge’s power to remedy that inconvenience, any more than to make a new law.
       Upon the whole, as I can not find any Law by which either vessel or cargo ought to be condemned, I adjudge and decree, that the said libel be dismissed, and it is accordingly hereby dismissed, saving the right to both parties of appeal. I do not decree a restitution of said Sloop and cargo, because the same have been already delivered to the Claimant, by virtue of a writ of delivery they first having duly stipulated for the value thereof agreable to the practice of the Court.

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

        Robert Auchmuty Comr. &c.
        Boston March 2d. 1773

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

        Robt. Auchmuty Comr. &c.
        March 2d. 1773


Title: Adams’ Minutes of the Argument: Court of Vice Admiralty, Boston, April 1773
From: Adams, John
To:

       Captn. Dawson. vs. Jenny.
       Blowers. Libel, claim, 15 Car. 2, c. 7, §.6.
       Hillman, and Cato.
       Certificates. Goods claimed, taken in at Tangier.

       Captn. Brace. Hides cured in the Hair with salt.
       Brooke and Guthrie. Fez, Morocco.
       Downes’s Manifest.
       Mr. Otis. Reads Libel, Claim, and Answer. 15 Car. 2, c. 7, §. 6.
       4. G. 3, c. 15. page 291. No Vessell shall be cleard out in England unless the whole Cargo was shipped in England Great Britain.
       Onus on the Claimant. No attempt to prove the Goods grown in Affrica.
       Bishop Burnet said he always presumed a Priest to be a Rogue untill the contrary is proved. Doane has been catched. And therefore must be presumed to be a Smuggler, untill he proves himself a fair Trader.
       This Vessell as curious a Voyage as St. Paul made to Rome.
       Pieces of Silks.
       Mr. Hallowell tasted one Quarter Cask, it has the Taste of Malaga Wines, not so sweet as some Malaga.

       Jona. Wild would blush at mentioning the Supposition, that Captain Dawson procurd these silks to carry about to take in a fair Trader.
       It appears on Record that a Number of Packages were thrown over. Negatur.
       French Chart. Shews that Captain Brace was mistaken in many things.
       500 Cattle, an over load for the Ark.  to an Horse.
       Ballances the Testimonies of Mathews, Hillman and Cato.
       Harrison and Hallowell, about Downes’s Manifest.
       Major Doane required the Master to swear differently from what he first intended. A strong mark of fraud.
       The Conversation between Major Doane and Mr. Waterhouse and Hallowell, can by no means help them for it appears clear the Major did not follow his Advice.
       As to the Conculs Papers produced, tho I am willing to allow them authentick, yet they can prove nothing for every Body knows those Certificates can be obtained when askd for.

        Advocate General.

       The Cause rests on two distinct points, the first is on the 15 Car 2d. That the Goods on board her were not of the Growth &c. of Europe.
       The other is that this Vessell came from some parts of Europe, and has produced no Cocket or Clearance.
       The Burthen of proof on the Claimants.
       Remarks on the Statutes.
       1. The Act of Charles, of the utmost national Service.

       Captn. McNeal. No Harbour at Tangier, no shelter since the Pier blown up. An open Bay.
       The Act. 4. G. 3. whole Cargo must be relanded and reshipped. p. 291.
       No Proof that any one Article, the Produce of Africa. Only consequential.
       Certificate from Mr. Meshod Meguiers.
       Salt not exported from Africa.
       Oyl. 26 Boxes. Figgs, Capers &c.
       Pampouses.
       Honey. Matts. Silks never exported from Africa.
       Our Witnesses, their Connection with the Claimant.
       Cato talks of a Xebec 3 Masts. Hillman a Schooner, with 2 Masts.
       Cato believes ’em to be Spaniards. Cato’s 200 could not be Hillmans 200 therefore 400.
       Mathews 900. 1st. did not know.
       Unwillingness and forgetfulness of Hillman. At a Loss as to Time how long, &c. when the Mate died &c.
       Pampouses, shipd in Europe, tho produced in Africa must be shipped in England by the statute 4. G.
       The Wine.
       Certificate.
       Doane and his Vice Consul dont agree. D. says not shippd, Consul that they were at Tangier.
       The only unerring Guide is Truth.
       Masters Manifest. From Tangier, should have been from Gibralter.


Title: Editorial Note
From:
To:

       On 25 March 1774, aroused at the presumption which Boston had earlier displayed in dumping the East India Company’s tea into the harbor, Parliament passed the Boston Port Act. This was the first of a series of harsh measures known as the Coercive, or Intolerable, Acts, which were designed to bring Massachusetts to heel. Instead they stirred an immediate storm of resistance, which produced that final colonial union necessary to make the fight for independence a reality. Adams’ minutes of the arguments in a case arising in the first days of the Port Act’s operation, which are printed below, are hardly prophetic of these later developments.
       The Act, which was to remain in force until the Town had paid for the tea and made good other damage incurred through its rebelliousness, provided that after 1 June 1774 no goods other than food or fuel shipped coastwise could be loaded or unloaded in Boston Harbor, except by vessels which were there on or before that date. Even these ships were to depart by 14 June. Other vessels found moored or hovering in the Harbor, or within a league of it, could be seized as forfeit if they did not depart within six hours after being warned by a naval or customs officer. Violations of the Act were to be prosecuted in the same manner as offenses against the Acts of Trade, which meant at common law or in Admiralty at the option of the prosecutor.
       All that is known of the case which Adams minuted has been deduced from his notes. Some time in April 1774, one Ross, master of a vessel of unknown name, sailed from an unknown port bound for New York with a cargo which included indigo and wrought plate. When about 1500 miles from Boston, the vessel was seriously damaged, presumably through stress of weather. Finding his condition such that he could not make New York, Ross put into Boston although he had heard “in his Passage” that the port was closed. The date of his arrival cannot be calculated with any certainty; the best guess is that it was about the middle of June, but it could have been as late as mid-July. Apparently recognizing this as a genuine case of distress, Admiral Montagu and the customs officers allowed Ross to enter the port for repairs. But Ross overstayed his welcome. After an indeterminate period, probably two to three weeks, his ship was still not ready to sail, and he had begun to offer some of his cargo for sale, perhaps to raise necessary funds.
       The Crown now acted, presumably by seizing the vessel and libeling her in the Admiralty Court. In view of the local reaction to the Port Act, it is unlikely that the customs officers would have entrusted any case under it to a jury, and there is no record of any proceeding at common law. Daniel Leonard argued the case for the Crown and William Tudor appeared for Ross, who had presumably filed a claim for the vessel. Adams’ minutes show that he attended the argument. It thus could have taken place before he left for the eastern circuit on 20 June, but it was probably held between his return from the eastward on about 18 July and his departure on 10 August to attend the Continental Congress at Philadelphia. The question chiefly agitated at the hearing was whether Ross had been diligent in getting his ship ready to put to sea. No record has been found of the result, but it seems most probable that the vessel was acquitted, because no notice of her sale as forfeit appeared in the Boston newspapers.


Title: Editorial Note
From:
To:

       Colonial forests were a natural resource upon which Britain depended for a vital element in her naval strength. The towering white pines which had grown untouched in the woods of northern New England for centuries were unequaled throughout the world as mast timber. Moreover, the supply from this source did not depend upon the vicissitudes of foreign trade or war and peace. The royal mast contractors met severe competition, however, because these same mighty trees were attractive to the colonists both for maritime uses and for the humbler purposes of the settler. To protect the forests from local depredations, the British developed a statutory conservation scheme, enforced in the Vice Admiralty Courts, which led to a running battle with the colonists through most of the 18th century.
       The basis of the scheme was the Massachusetts Charter of 1691, which combined the former colonies of Plymouth, Massachusetts Bay, Maine, Nova Scotia, and certain lands lying between the latter two, into a single province. In the Charter “all Trees of the Diameter of Twenty Four Inches and upwards of Twelve Inches from the ground” growing on land “not heretofore granted to any private persons” were reserved to the Crown, to be cut only by royal license; a penalty of £100 for each tree cut without license was established. To implement this provision a system of licensing certain royal mast contractors was established, and a Surveyor General of the Woods was appointed to oversee their operations and to put down unlicensed activity. After a series of only partly successful enforcement attempts, Parliament in 1711 embodied the Charter language in the first of the White Pine Acts, which provided that no “white or other pine tree” meeting the Charter qualifications should be cut in any province or colony north of New Jersey. Penalties in the amount set in the Charter were to be sued for before the nearest justice of the peace and to be divided equally between the Crown and the informer.
       These provisions produced more controversy than conservation. The popular faction in the Massachusetts House, led by Dr. Elisha Cooke, a lifelong opponent of royal authority, denied that the Charter and Act bound the unincorporated Province lands in the timber-rich Gorges patent in Maine, claiming that the royal grant of this tract to Sir Ferdinando Gorges in 1639 brought it within the exception for lands granted to private persons. In 1718 Counsel for the Board of Trade held that the conveyance of these lands from the Gorges interests to the Massachusetts Bay Colony in 1678 and the vacation of the colony charter in 1684 revested the lands in the Crown and took them out of the exception. The focus then shifted to the trees themselves. In 1721 the House claimed and exercised the power to seize for the Province logs that had been cut into twenty-foot lengths. The justification advanced by Cooke was that the Charter reserved only timber fit for use as masts. This stand was the basis of one of the charges of usurpation of the prerogative which Governor Shute successfully prosecuted against the House before the Privy Council in 1725.
       The Act of 1711 also proved inadequate in its enforcement provisions. Jurisdiction of offenses under it had been given to justices of the peace to avoid the hazards of jury trial, but the local interests of the justices made them of little more value than juries in obtaining convictions of violators. There were other impediments to prosecution: The Crown bore the burden of proving that trees had been cut on reserved land; the rigid and complicated common-law process, which was under the control of reluctant local courts and sheriffs made it difficult to obtain execution when penalties were awarded; there was no express authority for the in rem seizure and forfeiture of trees felled within the prohibited areas.
       The Naval Stores Act of 1722, which was the basis of enforcement until the Revolution, sought to deal with all of these problems. It repealed the Act of 1711 and replaced its provisions with a prohibition against the unlicensed cutting of “any white pine trees, not growing within any township,” in the colonies from New Jersey north, with penalties varying in amount according to the size of the tree. The bulk of the Gorges tract, being unincorporated, was thus covered, whatever the state of the title. The problem of locally oriented courts was solved by a provision that the penalties were to be recovered “before the judge of the admiralty, or his deputy, within the colony or plantation where such pinetree shall be cut.” Other complaints about the judicial process were remedied by placing the burden of proof of the trees’ location upon the claimant and by providing stringent measures for execution by distress and sale. To meet the contention that cut logs were not Crown property and to end the difficulties experienced in enforcing seizures, the statute further provided that all illegally-cut “white pine-trees, masts or logs made from such trees,” should “be forfeited and seized for the use of his Majesty.”

       It was soon argued that the Act of 1722 had rendered void the Charter reservation. The Crown law officers ruled that the reservation was still in force, but repeal of the Act of 1711 meant that, except in Massachusetts, trees of the reserved size were protected only if they grew outside township bounds. Within Massachusetts the Charter covered trees in the towns, but its enforcement was again at the mercy of common-law juries. These loopholes were closed by the Act of 1729, which provided that in all of the American colonies no white pine trees should be felled (except by licensed cutters) even within a township’s bounds unless they were “the property of private persons,” and that in Massachusetts white pines within the Charter reservation should not be cut unless they were on lands granted to private persons before 1690. The penalties and recovery machinery of the 1722 statute were to be applicable to violations.
       The construction which the Crown gave to the rules applicable in the Province of Massachusetts may be summarized as follows: (1) White pine trees of the size reserved in the Charter could not be cut without license unless they grew (a) within a township at the time of cutting, and (b) on land granted to private persons before 1690. (2) White pine trees of lesser size could not be cut without license unless at the time of cutting they were (a) within a township, and (b) the property of private persons. Until the Revolution this scheme was criticized as bad conservation and commercial policy, as well as an unjust taking of property without compensation. It was also attacked before the courts. Despite the best efforts of men seriously interested in a sound forest policy, the attacks on policy grounds brought no change. The court battles provided a constant accompaniment to sporadic efforts at strict enforcement.
       These efforts and resultant opposition, legal and otherwise, continued steadily until 1743 when Benning Wentworth, Governor of New Hampshire, succeeded in becoming Surveyor General of the Woods, a fitting appointment, since the mast contract for the northern woods was also in the Wentworth family. Enforcement now subsided, perhaps because the wide-ranging family timber interests were able by different means to satisfy the demand for naval stores as well as for commercial lumber. Apparently moved both by new demands for enforcement from the Crown and by the encroachment of commercial rivals on the family preserve, Wentworth in 1763 suddenly began to enforce the Acts in a series of suits for logs brought in the Admiralty Court at Boston. These suits continued until his resignation, in 1766, as Governor of New Hampshire and as Surveyor.
       John Wentworth, nephew of Benning, and successor to both his titles, brought to his new positions a desire to enforce the laws and an enthusiastic interest in the welfare of his native New England. He was in office until the Revolution, and was always active in the surveying phase of his commission, which required him to locate trees suitable for masts and to mark them with the King’s broad arrow. He also worked continually to remove colonial objections to the laws. From the beginning, however, he was engaged in the task of enforcement. In July 1767 and again in September he brought libels in the Vice Admiralty Court at Boston for the forfeiture of illegally cut logs and masts which he had seized. Thereafter he was not a suitor in that court until April 1769, although he may have brought forfeiture actions in the Portsmouth Admiralty Court, held by William Parker, deputy of Robert Auchmuty, Judge of Admiralty at Boston.
       In the spring of 1769 Wentworth was about to proceed in the Portsmouth court when Auchmuty suspended Parker from office; Wentworth therefore turned again to Boston. In a letter of 10 April he sent several “informations” against violators to Joshua Loring Jr., one of his deputy surveyors general, with directions to put them in suit before Auchmuty. (No. 54, Document III). At about the same time, John Hurd, one of the Governor’s staff, forwarded other informations that had already been “under Consideration of Mr. Parker.” (No. 54, Document I). In his letter to Loring, Wentworth suggested that his old friend and Harvard classmate, John Adams, be retained to prosecute the suits. Wentworth spoke warmly of Adams and their somewhat neglected friendship, and ordered that Loring “Present the Lawyer rather a generous fee.”
       Wentworth’s letter may represent one of the influences which were brought to bear on Adams at about this time in an effort to draw him to the side of government. Adams, however, seems to have proceeded in the case more out of pleasant regard for his old companion (and perhaps for the “generous fee”) than from any conscious political motive. On 24 April he wrote Wentworth, reporting on his progress in drawing several libels, and asking for information necessary to complete others. (No. 54, Document IV). The letter concludes with a personal message, briefly reminiscent of the baroque style of Adams’ youthful correspondence, which seems to express a longing for the freedom and innocence of their old friendship, while recognizing that in present circumstances it could never again exist.
       Whatever his motive, Adams drafted an information praying forfeiture of 606 logs and nine masts seized by Wentworth in various locations in York and Cumberland Counties, Maine. (No. 54, Document II). Although Adams’ draft is dated 20 April, the libel was filed on 1 May, and claimants were cited to appear on the 24th. The logs and masts were decreed forfeit on 1 June, apparently without a claim’s being filed.
       In the months before and after the forfeiture, twenty in personam actions, some of them involving several respondents, were entered in the Court of Vice Admiralty on Wentworth’s behalf. The Minute Book of the court shows that Adams filed three of these on 4 September 1769; penalties of £50 to £100 were decreed against the respondents upon their default on 20 November. Fifteen years later, in describing the White Pine Acts to the Maréchal de Castries, the French Minister of Marine, Adams wrote that at Wentworth’s request he had “commenced and prosecuted a great number of libels in the court of admiralty at Boston against transgressions of those acts of parliament.” This statement and Adams’ letter to Wentworth indicate that Adams was responsible for most, if not all, of the remainder of the twenty suits as well. The Minute Book shows that, in addition to the three defaults, forfeitures were decreed in only two other actions. Of the rest, two were settled, one was dismissed, and in twelve the respondents were not served.
       After 1769 Wentworth’s enforcement activities seemed to subside, at least as they were reflected in Admiralty actions at Boston. Perhaps he was trying to encourage compliance through persuasion and negotiation, rather than by legal process. His dealings with the Kennebec Company which preceded his action against logs found on the lands which it claimed in Maine (No. 55) suggest an effort to reach an understanding.
       In the summer of 1769, the Company, one of Adams’ most important clients, had won three significant actions against other claimants to that famous tract, the Kennebec Purchase. Perhaps encouraged, the Proprietors, all of whom were important figures in the Boston financial community, wrote to Wentworth on 16 October 1769, asserting their claim to the Kennebec lands, and protesting the entry thereon of the royal mast contractors, but expressing a willingness to furnish masts to the Crown on their own terms. Wentworth replied that he could not decide the validity of their title himself, but that he was as eager as they were to have a correct determination of it. He offered either to bring an action in Admiralty that would decide the question, or to transmit to England a state of the Proprietors’ claim for a ruling. Although he could not “relinquish the Royal Claim either in honor or Justice,” he would in the meantime “endeavor to prevent tho’ I have no power to refuse the Cutting Masts on the premises.” The Proprietors apparently hoped to avoid either variety of determination, perhaps relying on their social acquaintance with Wentworth to produce a favorable result. They thus wrote to him in May 1770, suggesting that he submit the question to counsel for an opinion. Wentworth refused to be trapped, pointing out in reply that his position was based on the opinion given on Cooke’s claims in 1718, to which he must conform, and that the question was beyond his competence. He renewed his offer to forward the Company’s state of its claim, however.
       About a year later, Richard Jackson, counsel for the Board of Trade, was asked to decide the matter on the basis of a letter from Wentworth, stating the Kennebec claim. Jackson refused to decide the question of title involved, but stated that if the trees in question grew within a township, and if the claim of the Kennebec Company to a title derived prior to 1690 were established, the trees could be cut without penalty. The Proprietors were still reluctant to submit their title to the courts, however, probably fearing the effect of an adverse determination on other claims which might be brought for the lands. In December 1771 they petitioned the Admiralty and Treasury, not for complete relief, but for compensation for logs taken from their lands, stating that they wished to avoid litigation, “the entering into a Law Suit having the appearance of refusing the Masts for His Majesty’s service.” Wentworth himself recommended this solution to the Treasury, “not as a matter of right, but as a Gratuity for the Timber being found well preserved upon their Land.” The petition, which had not been acted upon by the fall of 1772, was probably tabled, because the question was finally submitted to litigation.
       Perhaps expecting efforts at settlement to fail, the Proprietors had already begun to prepare for litigation. At a meeting on 8 January 1772, James Bowdoin, James Pitts, Sylvester Gardiner, Benjamin Hallowell, and William Bowdoin were constituted “lawful attorneys,” who were empowered, among other things, “to appear, and the Person of us said Proprietors Constituant to represent before any Governor, Judges, Justices, Officers and Ministers of the Law whatsoever, in any Court or Courts whatsoever, and there on our behalf to answer, defend, and reply unto all Actions, Matters and things whatsoever,” with power to appoint attorneys under them. Since the previous grant of such a power to a committee had authorized only the appointment of an “Attorney for the proprietors to appear for them in any Courts of Law or Equity in New England or Great Britain,” the 1772 vote indicates an awareness that the controversy with Wentworth would be tried in Admiralty. At the same meeting Adams, who had been acting for the Company since 1769, was formally voted “Attorney in all Causes, Real, personal, or Mixt, moved and to be moved for us or against us.”
       On 14 July 1772 an information was filed in the Court of Admiralty at Boston against a total of 573 logs, 424 pieces of hewn timber and 70,000 feet of pine board, alleged to have been seized on the Kennebec River and at various locations within the claimed lands to either side of it. The action seemed calculated to produce a determination both of the Kennebec claim and of the question whether the statutes applied to dressed timber (other than masts) and sawn boards, as well as to trees, masts, and logs. Adams appeared for the Kennebec Company and filed a claim, which apparently asserted its title. The case was argued on what Adams in his minutes described as a “demurrer” (No. 55, Document II), but which in Admiralty practice is more properly known as an exception. The effect was that of a demurrer, however, which admitted all the facts as to the chain of title pleaded in the claim, leaving in issue only questions of law as to the validity of the title and the construction of the White Pine Acts.

       The case was heard in March 1773. James Otis and Samuel Fitch, the Advocate General, argued for the Crown. Adams appeared for his old clients, undoubtedly with a colleague whose identity is not known. Printed below in No. 55 are a list of questions of law apparently drawn for the hearing (Document I), Adams’ minutes of the Crown argument (Document II), and Adams’ notes of his own argument (Document III).
       The Kennebec Company traced its title back to the Council for New England, or Council of Plymouth, established in 1620 by a royal patent which conveyed to it all of New England from 40° to 48° North Latitude. In 1630 the Council had granted to William Bradford, moving spirit in the Plymouth Colony, the so-called Plymouth Patent, which conveyed both the lands which the Pilgrims had occupied in Massachusetts and a tract on either side of the Kennebec to be used for trading purposes. In 1641 Bradford had “surrendered” to the colony his interest and that of his associates in the patent. Plymouth sought to improve the Maine lands, leasing the trading rights there periodically and adding further tracts acquired by deed from the Indians. Finally in 1665 the colony conveyed the land to four individuals. The heirs and successors of these grantees organized in 1749 as “the Proprietors of the Kennebec Purchase from the late colony of New Plymouth,” an arrangement given legal sanction by a Province Act of 1753 permitting the proprietors of undivided lands lying outside of organized townships to act as a body.
       The basic position of the Proprietors was that the chain validated their title and that at least the conveyance out of the Plymouth colony in 1665 was a grant to private persons before 1690, within the meaning of the Charter and statutes. Otis and Fitch attacked the Kennebec position along two lines: First, that the grants were made not to “private persons,” but to corporate bodies or to tenants in common of undivided lands, who as proprietors held in a capacity other than private. Second, that the chain of title was defective, so that even if the grantees were private persons, they did not hold by virtue of a grant, but by adverse possession. Even if the Proprietors’ arguments on these points prevailed, only trees growing within townships would be protected. Fitch argued that the 1722 act had been construed to mean that trees growing outside of township bounds were reserved, regardless of ownership. Adams met the argument with the proposition that the Charter excepted grants to private persons, regardless of township bounds, and that the exception was not narrowed by the Act of 1722, which was intended to apply only in other royal provinces in which all unincorporated lands of necessity belonged to the Crown.
       Adams’ arguments must have been successful, because on 3 May 1773 Wentworth’s libel was dismissed. The Surveyor General appealed to the Privy Council, and in September 1774 his petition was referred to the Council’s Committee for Hearing Appeals, which finally set the case for hearing on 3 August 1775. No record of the result has been found. If the petition was not withdrawn, the Order in Council resulting can have had little effect, since Boston was by the time of its issuance the besieged stronghold of the last vestiges of British authority in New England.


Title: John Hurd to Joshua Loring Jr., 13 April 1769
From: Hurd, John
To: Loring, Joshua Jr.

        Dear Sir
        Portsmo. 13th. April 1769

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

        John Hurd

        Mr. Claggett is about leaving Us and sails soon for England. We shall miss him in some of our Affairs.
        P.S. You have also inclosd a Diary of Willm. Ham Assistant Deputy, which may be of some use; after shewing it to the Judge You’ll please to return it to the Surveyor General’s Office.


Title: Adams’ Draft of the Information: Court of Vice Admiralty, Boston, 20 April 1769
From: Adams, John
To:

        Province of the Massachusetts Bay Court of vice Admty. 20th. April 1769
        To the Honble. Robert Auchmuty Esqr. Judge of his Majestys said Court or to his lawfull Deputy Commissary Deputy and surrogate of the Court of Vice Admiralty of Boston in the Province of the Massachusetts Bay

       John Wentworth Esqr. Surveyor General of all and singular his Majestys Woods on the Continent of North America shews that on the Twenty fourth day of March last he seized for his Majestys Use, at the several Places hereafter mentioned in said Province, the following white pine Logs; vizt at a Place called little Ossipee in the County of York in said Province Three hundred white Pine Logs from twenty four to fifty four Inches Diameter, and from Eighteen to Twenty four Feet long; at a Place called Narragansett in the County of York in said Province Three Logs from twenty five to Thirty Inches Diameter; at Faybans Mills so called in Scarborough in the County of Cumberland, Three hundred Logs.
       At a Place called Dunstons Landing in Scarborough aforesaid, two Masts, vizt one of forty Inches Diameter and fifty seven Feet long, another of forty four Inches Diameter and Eighty seven feet long.
       At a Place called Blue Point in Scarborough aforesaid one Mast of forty four Inches Diameter and Ninty three feet long, one of twenty Eight Inches Diameter and Eighty Eight feet and an half long; At a Place called Pepperellborough in the County of York aforesaid one Mast forty two Inches in Diameter and Sixty feet long, one of forty two Inches in Diameter and Eighty four feet long, one of Thirty Six Inches in Diameter and Eighty four feet long, one of forty two Inches in Diameter and fifty seven feet long, one of Thirty Six Inches Diameter and fifty seven feet long. At Narragansett in the County of York aforesaid Three Logs from twenty five to Thirty Inches Diameter; All cutt out of Trees growing in this Province, and not in any Township, or within the Bounds Lines or Limits thereof, or if growing within the Limits of any Town, those of twenty four Inches Diameter at twelve Inches from the Ground, not growing within any Soil or Tract of Land granted to any private Person before the Seventh Day of October Anno Domini 1690, and those under Twenty four Inches Diameter, not being the Property of any private Person or Persons, and felled by some evil minded Persons within Six Months last past, without his Majestys royal Licence first had and obtained; and by them removed to the aforesaid Places, contrary to the Laws in that Case made and provided.
       Wherefore as this matter is within the Jurisdiction of this Honorable Court the said John Wentworth prays sentence for the Forfeiture of said Logs to his Majestys Use, agreable to Law.


Title: John Wentworth to Joshua Loring Jr., 10 April 1769
From: Wentworth, John
To: Loring, Joshua Jr.

        Portsmouth 10th April 1769
        Sir

       Inclosed are informations against sundry Tresspassers upon the King’s woods, in the (late called) Province of Main. Which I request you will immediately in my name enter Complaint of, before the Honorable Robert Auchmuty Esq. and pray that process may immediately issue thereon, for recovery of the penalty. The Trees were not seized mentioned in the information No. 5, As the offenders by violence and menaces rendered it too dangerous for any single Officer to perform, but I am determined in May next to go myself and convince them that Threats and wicked Intents are not enough to prevent any service being done; that is committed to my care. Whatever may be the Event, I will assuredly attempt and persevere in my duty. As Mr. Sewall is now (I am glad for him) constituted Judge, I am at a Loss who to direct to as Advocate, If he does not still act, I desire you’d employ John Adams Esq. in my behalf to prosecute and aid and advise in these suits. He was my Cotemporary at Cambridge, and will I dare say oblige me by his greatest care and assiduity herein, which I hope will give me opportunity to convince him that our Friendship long since commenced is still the object of my pleasing respect. I wou’d observe to you, That these People, Vizt. Ross, Ross, Denning and particularly Thompson, have thus, trespassed in open avowed defiance and contempt of the Law, publickly declaring they have done it, will persist, and that no Officer shall come among them; it is therefore necessary that a trusty, resolute and experienced Marshal be entrusted by the Court, to execute these Precepts. If they fail then adieu to all public reservations to the Crown, or private property of individuals. I therefore hope they’l be properly supported by the Sheriffs and other civil officers—it is too important to bear even a thought of disappointment, in bringing them to legal trial. I am resolv’d to carry this prosecution to effect, Mr. Adams will therefore be pleased to pursue the exact rules of the Law, and on our side I’le promise him the most steady and vigorous support. Hitherto I have not been able to collect the additions to the names complain’d against, but am daily expecting them; these will be sufficient I presume to ground the respective process, and I shall be glad Mr. Adams will write me what further will be requisite to support our Complaints and informations. By the next post I shall send some further Evidence. I have this day wrote to the Judge on this subject, requesting to you, all necessary and legal Assistance. I beg you’d lose no time in these matters, for they are of the greatest consequence to the preservation of the Woods.
       Have you yet heard any thing further from Albany of Colo. Bs. supposed tresspasses? We will now make a thorough business of reformation by the Vigor of Law, since these and these only are no other ways to be reclaim’d.
       I am exceedingly oblig’d by your good Father’s interest to get the Young man discharg’d, it has made a Family very happy here. If this favor was asked in my name of Commodore Hood, I beg He would be so kind to make my most respectful acknowledgments for his politeness, which I shall at all times rejoice to retaliate. I was uncertain, therefore cou’d not mention anything about it, in a Letter I’ve lately had occasion to write to Commodore Hood.
       My best regards attend your good Parents. I suppose your Father is quite a Farmer and you a Gardener—happy life indeed—and if completely so, long may it be continued to you. Pray be so good to make my Respects to Mr. Adams, I fear myself indebted to him a Letter from Worcester, but hope soon to repay him—better late than never.

        I am with great esteem my dear Sir, your very sincere friend and most hble servt.,
        Wentworth

        PS. Present the Lawyer rather a generous fee, I’le reimburse.


Title: John Adams to John Wentworth, 24 April 1769
From: Adams, John
To: Wentworth, John

        Boston April 24. 1769
        Sir

       I have prepared Eight Libells, and shall compleat the rest immediately. Those I mean whose Additions and Abodes are made known to me. The others must remain undone till I receive Directions concerning the Persons. Should be glad if any further Informations are sent, to have the Names, Occupations, and Places of Abode of the Persons, that is, the Towns and Countys they live in. The Number of Trees they have cutt, not the Number of Logs, because if we prosecute for Penalties, those Penalties are to be measured by the Number of Trees, not of Logs, according to the Statutes. And also the Town and County where the Trespasses were done. As to the Riot or Assault upon Mr. Ham the officer, you desired that the Rioters might be rigorously prosecuted, but this cannot be done in the Court of Admiralty, which has no Jurisdiction of such Crimes, but must be left to the Kings Attorney and the grand Jury at the next Circuit of the Court of Assize.
       In the Informations against Ross, Ross, Denning, and Thompson, I have put fifty Trees for each. In the Minutes I received it is Said they had cut 400 Logs each. It is possible that 50 Trees may not make so many as 400 Logs. But I thought that 50 Trees would probably be 25 times so much as the Culprits were worth, and therefore an omission of 100 Trees or so, would be of no Consequence to the Parties nor to the Crown.
       I have given this Business all the Dispatch in my Power, encumbered as I have been during the whole of it, with the Hurry and Confusion of a Court in a wild, noisy, Smoaky Town. I wonder from my Soul what Fiend possessed me, when I left the calm Tranquility of Braintree for the Fatigue and Dissipation of Boston? But, hush my murmuring Imagination! I see more and more there is no disputing with Fate and Fortune. These inexorable Deities will dragg, if they cannot lead, and therefore the best Way is to trip it along as light as you can.
       You see I feel a great Inclination to be upon a Footing with your Excellency and to be chatting about my self as I used twelve years ago. But I cant conceive what Business I have with a Wife and three Children when I am conversing with your Excellency. Excuse this Freedom and believe me, with great Respect and Esteem, your Excellency’s most obedient, huml Servt.,

        John Adams


Title: Questions Presented: Court of Vice Admiralty, Boston, March 1773
From: UNKNOWN
To:

       Questions.
        1. Whether King James’s Letters patent to Lodowick Duke Lenox and others, are allowed to be good and sufficient to vest the lands thereby granted in the Grantees in Fee simple?
        2. Whether their grant to Bradford is also good, and sufficient to vest the lands thereby granted either in him and his heirs in fee simple, or in the Colony of New Plymouth so called, by virtue of the said grant and his surrender.

        3. Whether it is granted that there are now living lawfull heirs of the said Bradford.
        4. Whether it is contended, that private persons, mean private persons in opposition to Tenants in common or joint Tenants?
        5. Whether the Duke of Lenox et al. are to be considered as private persons within the meaning of the Charter and Statutes?
        6. If a mere Trespasser should cut Masts on land, which was indisputably the property of private persons before 1690, and was, by the King, prosecuted for the penalty could he legally, give in evidence, that the soil on which such trees grew, was the property of private persons before the 7 of October 1690, and thereby prevent the Statutes operating against him?
        7. If lands were duly granted to a private person or persons before 7 Octr. 1690 and one, not the Owner of such lands, should cut Masts on said lands, could the King by virtue of the Charter and Statutes recover said trees or masts?
        8. Whether the Council of Plymouth ever surrendered their patent, and when?
       9. Whether it is conceded that by force of the Charter or the Statutes, the Claimants are obliged to derive their title from a date prior to 7 October 1690?


Title: Adams’ Notes for His Argument: Court of Vice Admiralty, Boston, March 1773
From: Adams, John
To:

       Prov. Charter. Last Clause. “We do hereby reserve to Us, our Heirs and Successors, all Trees of the Diameter of 24 Inches and upwards of 12 Inches from the Ground, growing upon any Soil or Tract of Land within our said Province or Territory, not heretofore granted to any private Persons.” The Old Charter of Mass. Bay, was a Grant to private Persons.
       “Growing” when? At the date of the Charter? According to this no Tree was reserved, but such as were then standing and 24 Inches diameter.
       No Trees, growing on any “Soil” theretofore granted to any private Persons, are within this Reservation.
       The Question is what is meant by the Words “granted to any private Persons” ? Granted by whom? And who are private Persons?
       Answer, granted by the general Court either of Mass. Bay, or New Plymouth? To any individual, or Number of Individuals.
       All the Lands in the Province, had been granted to Persons, and to private Persons, by the Council at Plymouth. The Patent to Bradford and his associates was certainly a Grant to private Persons—not to any Corporation according to Mr. Fitch’s Doctrine.
       1710. 9. Ann, c. 17, §1. “No Person, or Persons &c., do or shall presume to cutt, fell, or destroy, any white or other sort of Pine Tree, fit for Masts, not being the Property of any private Person, such Tree being of the Growth of 24 Inches Diameter, and upwards at 12 Inches from the Earth.” Penalty £100, before a Justice of Peace.

       1721. 8. G, c. 12, §5. “No Person or Persons, &c. do or shall presume to cutt, fell, or destroy any white Pine Trees, not growing within any Township, or the Bounds, Lines or Limits thereof,” &c. without Licence, &c.
       Penalties. 12 Inches and under 3 feet from the Ground £5. From 12 to 18 Inches £10. From 18 to 24, twenty Pounds. From 24 and upwards £50—before the Admiralty.
       Trees, Masts or Logs, found cutt, or felled, forfeited and seized to his Majestys Use.
       §6. repeals 9. Ann, c. 17. So much of it as relates to cutting &c. such White Pine Trees.
       “Not growing” when? In 1721 or at the Time of cutting.
       Here a Question is what the Legislature meant by a “Township” ? This Law was intended for the other Colonies, not for this Province. Not supposed that it could affect any private Property. In N. Hampshire, and N. York, where the K’s Governor was giving away and selling Townships where he had not made a Township, it remained Crown Land.
       30 years intervened, between the Charter and the Act of 1721. Many Townships were erected in the mean Time which were not private Property before the act 1690. Therefore in all these Townships Trees might be cutt, even of 24 Inches Diameter, and upwards, for the Penalty in the Charter was void.

       1729. 2. G. 2, c. 35, §1. reciting the 8. G, c. 12. and that great Tracts, to evade the Act, had been erected into Townships, enacts that “No Person or Persons, do or shall presume to cutt, fell, or destroy any white Pine Trees, except only such as are the Property of private Persons, notwithstanding the said Trees do grow within the Limits of any Township, laid out, or to be laid out.” &c.
       But no Penalty, nor any Forfeiture, by this Clause, nor any Seizure to the Kings Use. This Exception defeats the Provision.
       §. 2. recites the Reservation in the Massachusetts Charter, “of all Trees of 24 Inches Diameter and upwards at 12 Inches &c. growing upon any Soil or Tract of Land, &c. not theretofore granted to any private Person:” to make the Reservation more effectual, enacted that “No Person or Persons within said Prov. of Mass. Bay, or N. England, do or shall presume to cutt, or destroy, any white Pine Trees of 24 Inches and Upwards at 12 Inches &c., not growing within some Soil or Tract, &c. granted to some private Person, or Persons, before 7. Oct. 1690.
       “And every Person so cutting &c. such white Pine Trees, not being the Property of private Persons, in any of the Colonies &c.
       “And likewise every Person cutting &c. any white Pine Trees of the Diameter of 24 Inches or upwards at 12 Inches &c., growing in any Tract &c. in said Prov. of N. England or Mass. Bay, not granted to some private Person or Persons before 7 Oct. 1690, &c. shall be subject to such and the like Penalties and Forfeitures respectively, as are provided in 8. G. 1. for such Persons as cutt &c. Pine Trees, not growing in any Township &c.”
       If the Words in the Charter “not herefore granted to any private Persons,” should be construed to mean only, not granted by Titles which were then good, valid and legal, the Words will mean nothing. For if the Vacation of the Charter dissolved the Basis and superstructure together, there was not at the Time of the Charter an Inch of private Property in the Province, it all being revested in the Crown, and the Consequence is that every Pine Tree in the Prov. 24 Inches, is reservd to the Crown.
       On the contrary, if they mean, ever granted, and by any means, all the Trees in the Province are excepted out of the Reservation, and the Crown has no Right to one Tree.
       The Clause in 2. G. 2, c. 35. “not growing within some soil &c. granted to some private Person or Persons before 7 Oct. 1690,” is liable to all the Difficulties in the Clause in the Charter, and to the same Construction. The Intention must have been, to except out of the Reservation all the Lands which had at any Time before been granted by any General Court, Either of Mass. or N. Plymouth, to private Persons, in short. Many had made great Improvements upon Lands, had cleared them, built Houses upon them &c.


Title: Editorial Note
From:
To:

       The Vice Admiralty Courts had jurisdiction over a multitude of petty criminal offenses committed at sea by masters and mariners, as well as power to punish contempt of their own authority. Offenses that amounted to felony and the crime of piracy were within the competence of a different forum.
       In England, since the time of Henry VIII, the trial of “all treasons, felonies, robberies, murders and confederacies,” committed upon the seas, or elsewhere within the Admiralty jurisdiction had been given to royal commissioners, who were to sit within the realm and try such offenses “after the common course of the laws of this realm, used for treasons, felonies, murders, robberies and confederacies of the same, done and committed upon the land within this realm.” Trial was to be upon indictment of a grand jury, before a petit jury to be summoned by the commissioners. By the middle of the 18th century, procedure under this statute had become formalized as an Admiralty Session at the Old Bailey, where the judges of the common law courts, who were appointed commissioners, sat with a jury for the trial of maritime offenses, dispensing substantially the same brand of justice that shoregoing offenders received.
       Since the distance of the colonies from England made transportation of offenders apprehended there a matter of great difficulty, provision was made in a statute of 1700 for the trial in the colonies of “all piracies, felonies, and robberies” committed upon the seas. Commissioners to be appointed by the Crown in each colony were given authority to remit suspected persons to custody and to call a Special Court of Admiralty, which would have power to summon and try offenders “according to the civil law, and the methods and rules of the admiralty.” The statute provided a procedure for the court, defined certain offenses, and gave the commissioners under it or the Act of Henry VIII exclusive jurisdiction of such offenses within the colonies. To prevent a possible jurisdictional doubt, an act of 1717 provided that all offenses under the 1700 statute might be tried according to the method laid down in the Act of Henry VIII.
       During the 18th century the Crown issued standing commissions in each colony or Admiralty district for trial under the provisions of the Act of 1700. The commissioners were a roster of all of the political leaders of the colony or district involved, usually including the Governor, Lieutenant Governor, Secretary, Chief Justice, Judge of Admiralty, members of the Council, officers of the royal navy within the district, and various customs officers. In Massachusetts when the time came to issue a new commission after the death of George II in 1760, this practice was varied. The Council was no longer included, allegedly because Governor Bernard had complained to the Admiralty that its members had joined with the House in opposing the activities of the Vice Admiralty Court. The commission that was issued on 14 January 1762 covered Massachusetts, Rhode Island, and New Hampshire, and so included appropriate officers from all of those colonies. It was before Special Courts of Admiralty called pursuant to this commission that Adams tried two of his most unusual criminal cases, Rex v. Corbet, No. 56, and Rex v. Nickerson, No. 57.


Title: Editorial Note
From:
To:

       British impressment of American seamen, a grievance normally associated with the War of 1812, actually antedated even the Revolution, as the present case shows. Early in the morning of Saturday, 22 April 1769, H.M. Frigate Rose, patrolling on the high seas off Marblehead, intercepted and stopped the brig Pitt Packet (Thomas Power master), owned by Robert “King” Hooper, manned with a crew of Irishmen, and homeward bound from Cadiz, Spain, with a cargo of salt. Henry Panton, the lieutenant, or executive officer, of Rose, came aboard with some sailors and marines, asked for the vessel’s papers, and commenced a search. In the forepeak, a small space under the weather deck between the stem and the main hold, he discovered crewmen Michael Corbet, Pierce Fenning, John Ryan, and William Conner, variously armed with fish gig, musket, hatchet, and harpoon. To Panton’s threats and entreaties, they remained obdurate and menacing; even when the officer secured reinforcements from Rose and commenced to have the bulkhead torn down, they refused to budge.
       According to John Adams’ later reminiscences of the testimony at trial, Corbet drew a line in the salt and told Panton, “ ’If you step over that line, I shall consider it as a proof that you are determined to impress me, and by the eternal God of Heaven, you are a dead man.’ ’Aye, my lad,’ said the lieutenant, ’I have seen many a brave fellow before now.’ Taking his snuffbox out of his pocket, and taking a pinch of snuff, he very deliberately stepped over the line, and attempted to seize Corbet. The latter, drawing back his arm, and driving his harpoon with all his force, cut off the carotid artery and jugular vein, and laid the lieutenant dead at his feet.”
       But the truth, at least according to the actual testimony at the trial, set out in Document V, suggests that Panton, rather than striding into danger, was sitting on the salt, there being no room to stand, and that Corbet, like his friends, was “pushing” at the men who were tearing apart their fortress. At least one pistol had been fired into the forepeak, and it could be only a matter of time before someone was seriously hurt. In the confusion, Corbet thrust with his harpoon, striking Panton, who was carried topside where he bled to death within two hours. Corbet and the others meanwhile were gradually subdued, and that only because, it was rumored, they had drunk themselves into a stupor.
       Now the authorities faced the serious problem of properly dealing with the sailors. It was clear that they could not be indicted and tried in one of the common law courts, because the offense had not been committed within the bounds of any county, but the statutes providing for Admiralty jurisdiction of such offenses left the question of jury trial in doubt. The original Act of Henry VIII specified a jury trial before a special Admiralty court in England; a statute passed in the time of William III indicated that trial in the colonies ought to be without a jury. Finally, an Act of George I seemed to restore the jury right. Predictably, the defendants pressed for a jury trial, while the Crown advocates tried to bar it.
       But even if the mode of trial were settled, there still remained two knotty issues: Of what crime should the men be accused, and by what substantive law should they be tried? Adams, who with James Otis defended the sailors, was in later years to claim that the successful result of the trial hinged on his discovery of a statute which forbade impressment of American seamen, and on the court’s fear that it might have to apply that statute. It is certainly true that the statute in question seemed to render Rose’s press gang illegal; that being so, then Panton had no authority to threaten or attempt to seize Corbet, and the killing could be justified on grounds of self-defense. But the issue appears to have been current long before the trial. If one can believe “A Journal of the Times,” the loyalists were contending as early as 5 May 1769 that Panton had gone aboard, not to search for seamen, but to inspect for contraband, an argument which the Crown advocates, Samuel Fitch and Jonathan Sewall, were to echo at the trial. And indeed, almost a year before Panton’s death, the “Instructions of the Town of Boston to their Representatives,” written by Adams himself, had set out the entire relevant section of the act.
       Much depended on the question of the applicable substantive law. If the common law applied, then, unless the homicide were justifiable, the accused would be liable to conviction of manslaughter; and the statutes left it unclear whether in trials before the Special Admiralty Court the benefit of clergy could be pleaded, as it could have been at common law. If the trial were, on the other hand, to be held according to the civil law (which usually controlled ordinary Admiralty proceedings), the killing was punishable by death only if it was murder; there was no death penalty for the crime which the common law called manslaughter (intentional, unjustifiable, inexcusable homicide without malice).
       The Crown officers proceeded carefully. Panton was barely in his King’s Chapel grave when Governor Bernard, Lieutenant Governor Hutchinson, Commodore Samuel Hood, Province Secretary Oliver, and Admiralty Judge Auchmuty, Commissioners for the Trial of Piracies, went aboard Rose to confer with Captain Caldwell. Shortly thereafter, an account of the affair, based, as it later developed, on the various depositions of Rose’s people, appeared in the tory Boston Chronicle and so angered the patriots that they attempted to counter it with a rehash of an earlier version which everyone, including the Chronicle, had already published.
       In the face of conflicting documents, Adams’ shifting memory, and the disappearance of the pleadings, the exact chronology of the litigation is hard to trace. However, the following seems probable. “Articles” were drawn up against each defendant by Ezekiel Price, Register (Clerk) of the Court of Vice Admiralty. On Tuesday, 23 May 1769, the Special Court of Admiralty, called pursuant to the Commission for the Trial of Piracies, convened. In addition to the five Commissioners who had visited Rose, the court consisted of Governor John Wentworth and Councilors Jonathan Warner and George Jaffrey of New Hampshire; Judge John Andrews of the Rhode Island Court of Vice Admiralty; Collectors Joseph Harrison of Boston, John Nutting of Salem, and Robert Trail of Portsmouth. However, at the first session, only Bernard, Hutchinson, Hood, Auchmuty, Oliver, Trail, and Nutting attended. The jury-right issue having been raised early, the court adjourned to Thursday, 25 May, meanwhile hearing argument (Document II); then it further adjourned to Monday, 29 May, when Adams filed his plea to the jurisdiction (Document III), upon which the court “thought proper to take the same under consideration,” and adjourned to 14 June.
       Finally, on Wednesday, 14 June 1769, the trial commenced in the Court House. “No trial had ever interested the community so much before, excited so much curiosity and compassion, or so many apprehensions of the fateful consequences of the supremacy of parliamentary jurisdiction, or the intrigues of parliamentary courts. No trial had drawn together such crowds of auditors from day to day; they were as numerous as those in the next year, at the trials of Preston and the soldiers.”
       The court quickly announced that it had overruled the pleas, and proceeded to trial. The taking of evidence commenced immediately and continued for three days; the testimony seems to be substantially reproduced in Adams’ minutes (Document V). In contrast to the common-law practice, the evidence was “taken down by the clerk and the counsel in writing.” It should be noted that none of the accused testified. There is no evidence that any attempt was made to call any of them as witnesses on behalf of any of the others. Of course, no accused could testify in his own behalf, even at common law; but it was customary at common law when a number of prisoners were tried on the same facts for the court to acquit those whom the evidence did not materially affect, in order that the others might call them as witnesses.
       On Saturday, 17 June, Adams rose to make the argument which is detailed in Document VI. He had barely commenced, and had begun to argue that the killing was only justifiable homicide, when, as he loved to tell in later years, Hutchinson moved for adjournment. The court retired for four hours, then returned with its decree: Justifiable homicide, and the prisoners set at liberty. Although Adams insisted that it was fear of the nonimpressment statute which swayed the court, Hutchinson gave a different reason: “It appeared that neither the lieutenant nor any of his superior officers were authorized to impress, by any warrant or special authority from the lords of the admiralty; and the court (the commanding officer of the king’s ships being one of the commissioners) was unanimously of opinion that the prisoners had a good right to defend themselves, and, though the fact of killing was fully proved, that they ought to be acquitted of murder, with which they were charged, and that, at common law, the killing would not have amounted to manslaughter.” In other words, Adams’ substantive legal argument prevailed.
       Immediately upon the acquittal, Ryan, whose arm had been broken by a pistol ball in the fracas, brought an action against Midshipman William Peacock, who had fired the shot. The Sheriff rowed out to Rose and seized Peacock personally, taking £300 bail in lieu of an arrest. Commodore Hood himself sought vainly to buy Peacock’s peace, writing Adams (who represented Ryan) and offering his client a cook’s place in the fleet, which, with its perquisites, was worth £30 a year. But Ryan refused “because he had fallen in love and would be married,” and the matter was finally settled for £30.
       Adams always remembered Corbet’s case warmly. He considered it more important than the Massacre trials, and he never forgot the honest testimony of the British sailors (some of whom testified in behalf of the prisoners) and their apparent abhorrence of the press gang. At one time, he contemplated publishing a report of the case. Characteristically, he noted: “A great Variety of useful Learning might be brought into an History of that Case—and the great Curiosity of the World after the Case, would make it sell. I have half a Mind to undertake it.” Apparently, he did take some steps along those lines, because the documents here set out, particularly Documents II and VI, indicate careful expansion of legal jottings and courtroom minutes. Document I seems to be the rough notes on which he based his argument, expanded in Document II. Document III is the plea, and Document IV additional pleadings in the nature of demurrer and joinder. Adams’ actual trial minutes are Document V, while his final argument is Document VI.
       The editors have decided to place the litigation materials in roughly chronological order, and have therefore divided some of Adams’ documents at appropriate places. The MS trial minutes (Document V) contain also a series of eight leaves in Adams’ hand which Brooks Adams called “supplementary notes.” They appear, in fact, to be Adams’ digest of the various witnesses’ depositions. Thus the summary of Hugh Hill’s testimony commences: “Like the Master’s till. . . .” And John Roney’s starts: “As the Master.” In the present arrangement of the materials these have been placed as footnotes to each respective witness’ trial testimony.
       It is tempting to speculate that these notes are evidence of pre-trial discovery techniques not usually associated with traditional Admiralty practice. However, a more probable view is that, all the witnesses being mariners, each deposition had been taken in rei perpetuam, against the possibility of the witness’ being at sea when the case came to trial.


Title: Adams’ Notes of Authorities: Special Court of Admiralty, Boston, May 1769
From: Adams, John
To:

       28. H. 8, c. 15. For Pirates.
       The Statute on which this Court is founded is 11th. & 12th. Wm. 3rd, C. 7. An Act for the more effectual suppression of Piracy.
       6. Ann, c. 37, §9. Impresses in America prohibited. This act perpetual, 1. because of the Title. 2. the Preamble, in two Parts, for Advancement of Trade, and increase of Shipping and Seamen. 4. the same Clauses in their Nature temporary, yet others perpetual. Others expressly limited to the duration of the War. This § not §4. No limitation in the Act itself to Years, or other Term. 4. G, c. 11, §7. Sugar Colonies Act. 19. G. 2, c. 30, §1.
       Fosters Crown Law.
       Necessary Homicide. 2. Domat. 638 §6. Woods Inst. civ. Law 270. Cod. Lib. 9. Tit. 16. 2. 3. 4 &c.
       Civil Law, relative to Defense and Provocation.
       2. Domat 638. §6. Woods Inst. civ. Law 270. Cod. Lib. 9. Tit. 16. 2. 3. 4. &c. Note 46. Gail Page 503. Maranta Page 49, Pars 4. Dig. 1. Dist. 1. 77.
       Com. Law justifiable self Defense.
       1. Hawk. 71. §4. middle. §21. killing ravisher. page 72 §23. towards the End. §24. page 75. §14.
       Keyling page 128. bottom page 136. Top. Buckners 136. 3. bottom. 3dly. 59. Hopkin Huggetts. 2. Ld. Ray. Tooleys Case. Holt 485. 484. Faster 312—316—vid. Foster 292, the smart &c. for Manslaugter, also 296.
       Calvin. Tit. Culpa.
       7. W. 3, c. 4. An Act for Grand Jurors serving at Quarter Sessions. Clerk of the Peace of each County shall annually 15 days before the day for holding the Court issue out Writs to the Constables of Towns, to warn a Meeting of the Inhabitants, for chusing one or more Grand Jurors.
       Grand Jurors Oath 4. W. & Mary. c. 16.

       Temporary Laws. 23. G. 2, c. 2. better regulating the Choice of Petit Jurors.
       28. H. 8, c. 15. For Pirates. After the common Course of the Laws of this Realm. Commissioners to enquire, by the Oaths of 12 good and lawfull Inhabitants, in the Shire limited in their Commission, as if such Crimes committed on Land. And Tryal by 12 lawfull Men, inhabited in the shire limited within such Commission. Expressly excluded clergy. Tryals in 5. Ports shall be in by Inhabitants, &c.
       11. & 12. W. 3, c. 7. Act for more effectual suppression of Pyracy.
       4. G. c.
       18. G. 2, c. 30.
       Otis. 2 Salk. The Word “may,” shall be construed “shall.” Tit. Statutes and their Construction.
       Tryal of Stede Bonnett, before Judge Trott.
       1718. 5. G. 1. V. 6. 156.
       Consent of Parties would cure all Difficulties, Vin. Tit. Tryal.


Title: Plea to the Jurisdiction: Special Court of Admiralty, Boston, May 1769
From: Adams, John
To:

        Province of the Massachusetts Bay
        To the Honble. the Commissioners of the constituting the Special Court of Admiralty for the hearing and determining of Piracies Robberies and Fellonies committed upon the high Seas, begun and held at Boston in the County of Suffolk, and Province of the Massachusetts Bay in New England in America on the twenty third day of May in the Ninth Year of the Reign of George the Third by the Grace of God of Great Britain, France and Ireland, King Defender of the Faith &c.

       Humbly shews Michael Corbit of Marblehead in the County of Essex, Mariner that this Hon’ble Court ought not to take Cognizance of the Matters and Things sett forth and alledged in the said Articles exhibited against him by Ezekiel Price Gentleman, because the said Michael says, that by an Act of Parliament made in the Twenty Eighth Year of the Reign of King Henry the Eighth, it is among other Things enacted, “That all Treasons, Felonies, Robberies, Murthers, and Confederacies, hereafter to be committed in or upon the Sea, or in any other Haven, River, Creek or Place where the Admiral or Admirals, have or pretend to have Power, Authority or Jurisdiction shall be inquired, tried, heard, determined, and judged, in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same, in like Form and Condition, as if any such offence or offences had been committed or done in or upon the Land; and such Commissions shall be had under the Kings Great Seal, directed to the Admiral or Admirals, or to his or their Lieutenant, Deputy, and Deputies, and to three or four such other substantial Persons, as shall be named or appointed, by the Lord Chancellor of England for the Time being, from Time to Time, and as oft as need shall require, to hear and determine such offences after the common Course of the Laws of this Realm, used for Treasons, Felonies, Murthers, and Confederacies of the same, done and committed upon the Land within this Realm,” And “that such Persons to whom such Commission or Commissions, shall be directed, or four of them at the least, shall have full Power and Authority to enquire of such offences, and of every of them, by the oaths of Twelve good and lawfull Inhabitants in the shire limited in their Commission, in such like manner and Form, as if such offences had been committed upon the Land within the same shire, and that every Indictment found and presented before such Commissioners, of any Treasons, Felonies, Robberies Murthers, Manslaughters, or such other offences, being committed or done, in or upon the Seas, or in or upon any other Haven, River or Creek, shall be good and effectual in the Law and if any Person or Persons happen to be indicted for any such offence, done or hereafter to be done upon the seas, or in any other Place above limited, that then such order, Proscess, Judgment and Execution shall be used, had, done and made, to and against every such Person and Persons, so being indicted, as against Traytors, Felons and Murtherers, for Treason, Felony, Robbery, Murther or other such offences done upon the Land, as by the Laws of this Realm is accustomed; and that the Tryal of such offence or offences, if it be denied by the offender or offenders, shall be had by twelve lawfull Men, inhabited in the shire limited within such Commission, which shall be directed as is aforesaid, and no Challenge or Challenges to be had for the Hundred; and such as shall be convict of any such offence or offences, by Verdict, Confession or Proscess, by authority of any such Commission, shall have and suffer, such Pains of Death, Losses of Lands, Goods and Chattells, as if they had been attainted and convicted of any Treasons, Felonies, Robberies, or other the said offences done upon the Lands.”
       And the said Michael further shews, that by another Act of Parliament made and passed in the Parliament holden in the Eleventh and Twelfth Years of the Reign of King William the third, it is, among other Things declared and enacted “That all Piracies, Felonies, and Robberies committed in or upon the sea, or in any Haven, River, Creek or Place, where the Admiral or Admirals have Power, Authority or Jurisdiction, may be examind, enquired of, tried, heard and determined and adjudged, according to the Directions of this Act, in any Place at Sea, or upon the Land, in any of his Majestys Islands, Plantations, Colonies, Dominions, Forts or Factories, to be appointed for that Purpose by the Kings Commission or Commissions under the Great Seal of England, or the Seal of the Admiralty of England, directed to all or any of the Admirals, Vice Admirals, Reer Admirals, Judges of Vice Admiralties, or Commanders of any of his Majestys Ships of War, and also to all or any such Person or Persons, officer or officers, by Name, or for the Time being, as his Majesty shall think fit to appoint, which said Commissioners shall have full Power jointly or severally, by Warrant under the Hand and Seal of them, or any one of them, to commit to safe Custody any Person or Persons against whom Information of Piracy, Robbery, or Felony upon the sea, shall be given upon oath which oath they or any one of them, shall have full Power, and are hereby required to administer and to call and assemble a Court of Admiralty on ship board, or upon the Land, when and as often as occasion shall require; which Court shall consist of seven Persons at the least” and “that such Persons called and assembled,” as in said Act is particularly described, “shall have full Power and Authority, according to the Course of the Admiralty, to issue Warrants for bringing any Persons accused of Pyracy or Robbery before them to be tried, heard and adjudged and to summon Witnesses, and to take Informations and Examinations of Witnesses upon their oath; and to do all Things necessary for the Hearing and final Determination of any Case of Pyracy, Robbery and Felony; and to give sentence and Judgment of Death and to award Execution of the offenders convicted and attainted as aforesaid, according to the civil Law, and the Methods and Rules of the Admiralty; and that all and every Person and Persons so convicted and attainted of Pyracy or Robbery, shall have and suffer such Losses of Lands, Goods and Chattells, as if they had been attainted and convicted of any Piracies, Felonies and Robberies, according to the aforementioned statute, made in the Reign of King Henry the Eighth.”
       And the said Michael further saith that by another Act of Parliament made and passed in the fourth Year of the Reign of King George the first it is among other Things declared, “that all and every Person and Persons who have committed or shall commit any offence or offences, for which they ought to be adjudged, deemed, and taken to be Pirates, Fellons, or Robbers, by an Act made in the Parliament holden in the Eleventh and Twelfth Years of the Reign of his late Majesty King William the Third, intituled, ’an Act for the more effectual suppression of Pyracy,’ may be tried and judged for every such offence in such manner and Form as in and by an Act made in the twenty Eighth Year of the Reign of King Henry the Eighth is directed and appointed for the Tryal of Pyrates, and shall and ought to be utterly debarred and excluded from the Benefit of Clergy, for the said offences; any Law or statute to the Contrary thereof in any wise notwithstanding,” and “that this Act shall extend to all his Majestys Dominions in America, and shall be taken as a public Act.”
       Now the said Michael says that the Commission whereby this Honourable Court is constituted authorises it, to proceed only according to the Directions in the said Act made in the Reign of King William the third, according to the Course of the Admiralty, According to the civil Law, and the Methods and Rules of the Admiralty; and that the Matters and Things contained in the Articles aforesaid against the said Michael, ought now by Law to be heard and tryed, by a Court constituted according to the said Act made in the Reign of King Henry the Eighth, and ought to be tryed and judged in such manner and Form as in and by the same Act is directed and appointed, that is to say by a grand Jury and a petit Jury of the said County of Suffolk and as by the Laws of the Realm of Great Britain is accustomed.
       Wherefore the said Michael says prays Judgment if this Court will take any further Cognizance of the Matters and Things charged upon said Michael in said Articles.


Title: Additional Pleadings: Special Court of Admiralty, Boston, May 1769
From: Adams, John,Price, Ezekiel
To:

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

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