Editorial Note

Until comparatively recent times the valor of naval crews was stimulated by the prospect of a share in the proceeds of enemy vessels and goods captured as prize. The complicated questions of property and the law of war which this system of hazard pay produced were adjudicated in every country by special tribunals, administering a more or less common body of international law. From its 14th-century origins the English Court of Admiralty had exercised a jurisdiction in such matters. By the beginning of the 18th century, when Admiralty’s powers in other fields were on the wane, the prize side of the court had become virtually a separate institution, with sessions, rules, and records distinct from the ordinary civil, or “instance” side. Although this jurisdiction was called upon only in time of hostilities, the warlike nature of the times meant a steady demand for it, so that a substantial body of prize law developed and the Admiralty was saved from the extinction which might otherwise have been its fate.1

In the colonies, the seat of much of the warfare, there was great need for a similar forum, since trial of colonial prizes in England was impracticable. After 1660, captures were tried first in the courts established by the governors under their powers as Vice Admirals, then in the Admiralty courts created in 1697 for enforcement of the Acts of Trade. Confusion over the source of these courts’ power to sit in prize was laid to rest by an Act of 1708, which provided for trial in Admiralty under a precise and simple procedure and established fixed formulas for the division of proceeds among the captors.2 Under this statute the colonial Vice Admiralty judges, empowered by special Admiralty warrant, exercised the jurisdiction through all the wars of the 18th century. One authority suggests that this branch may have amounted to as much as a third of the courts’ total business.3 Although it may be assumed that the Massachusetts Vice Admiralty Court sat in prize until the cessation of hostilities in the Seven Years’ War in 1763, John Adams had no prize cases before it, as far as is known.

At the outbreak of the Revolution the colonists soon found that, whatever their feelings about the Admiralty had been, the prize jurisdiction was a necessary element in naval warfare. Despite the efforts of advocates of seapower, including Adams, a Continental Navy was slow to develop. George Washington put a fleet of four vessels into action off Massachusetts, and the individual colonies established small navies of their own; but privateers, vessels fitted out at private expense and commissioned by Congress or a colony to sail against enemy shipping, were the substitute upon which the colonists chiefly had to rely.4 Since profits were even more important to the privateers than to regular naval vessels, Massachusetts as early as 1775 established its own maritime court to exercise jurisdiction in prize matters. The other colonies soon followed suit, and the hated royal Admiralty courts were succeeded by a system of state courts, which, however, were usually limited to prize cases and sat with a jury.5 Congress was also quick to recognize the need for its authority in this field. In November 1775 it adopted the report of a committee of which Adams was a member, establishing regulations for privateers, defining the objects of capture, recommending that the states establish prize courts, and providing that appeals from all cases of prize in those courts would lie to the Congress. Under this measure appeals were referred to special committees, until in January 1777 a Standing Committee on Appeals was created.6

Adams was appointed to the Standing Committee in March 1777 and served until November of that year, when he left Congress for good. Despite a busy schedule, he managed to participate in much of the Committee’s work.7 Its surviving file papers reveal that of eleven appeals decided during Adams’ tenure, he sat on at least five. In five others the appellate papers are incomplete, so that the members of the Committee who sat cannot be determined. Thus Adams may well have been involved in additional cases.8 The papers show that the Committee, which on at least one occasion took the style “Court of Commissioners of Appeals for the American States,” viewed itself, and was viewed by Congress, as a judicial body. Thus, its procedure included provisions for notice, payment of costs, and the like, reflecting the legal background of its members. Its decisions were based on a full record of the trial below, as well as upon oral argument. These decisions were handed down with oral opinions, were in the form of judicial decrees, and were accorded the legal effect of such decrees.9

The Court of Commissioners, and Adams’ role in it, deserve a full analysis, which cannot be undertaken here. Despite the limitation of the court’s jurisdiction to matters of prize, it foreshadowed the United States Supreme Court as the earliest permanent judicial body with a national jurisdiction. Equally important, the court, and its successor, the Court of Appeals in Cases of Capture, provided an opportunity for the development of an appellate procedure and jurisprudence, and a bar experienced in these matters, which permitted the Supreme Court to undertake its duties in 1789 unencumbered by the need for awkward experiment. Adams, who had had to resign from the chief justiceship of Massachusetts before he could enter upon the duties of that office, was thus finally enabled to serve on the bench in a much more significant way.10 He was, if briefly, a member of what was in effect the first Supreme Court of the United States; as such, he participated in the establishment of an institution capable of handing on the appellate tradition which it began.

In November 1777, when he took leave from Congress for a much needed rest and return to personal affairs,11 Adams was probably little aware of the long-range importance of his recent judicial activities. But he was soon to discover that they were of immediate value. Shortly after his arrival at Braintree he was plunged into a prize controversy between his old client Col. Elisha Doane, one of the richest men in New England,12 and certain New Hampshire privateersmen, which brought into play his newly acquired expertise in such matters. The case is of real interest, not only because it marks Adams’ last known appearance as an active trial lawyer, but because years later, in the Supreme Court of the United States, it led to an affirmation of the supremacy of the federal courts in a matter in which the states had yielded sovereignty.

The complicated story of the litigation can be pieced together from various contemporary sources, principally the files of the Continental Congress’ Court of Appeals.13 It begins in the summer of 1775, when the Cape Cod whaling fleet returned from the South Atlantic, having “proved to be tolerable successful,” and Doane, whose headquarters were at Chatham, found himself with a considerable stock of whale oil on hand. The presence of the British fleet at Boston, and its evident intention to enforce the restrictions which Britain had laid upon New England’s commerce,14 meant that there was no local market for the oil. Moreover, like many a businessman whose country is on the verge of hostilities with a former trading partner, Doane had a considerable balance in his favor on the books of Lane, Son & Fraser, London merchants, as well as an unsold shipment of whalebone in their warehouse. He determined to realize upon these various assets before the worsening political situation led to their confiscation.15 Accordingly, he loaded his brigantine Lusanna, already carrying considerable oil that she had herself brought back from the whaling grounds, with additional oil and other goods and arranged that his son-in-law Shearjashub Bourne, a lawyer and recanting addresser of Hutchinson, whose business had virtually disappeared with the closing of the courts, should go with this cargo to London and there see to its sale and to the securing of Doane’s other interests.16

On 4 September 1775, a week before the effective date of the ban laid on exports to Britain by the Continental Association, the Lusanna, Matthew Wood master, sailed from Wellfleet, having earlier cleared out at the custom house in Plymouth. Her cargo consisted of 101 casks of spermaceti oil and 37 casks of head matter belonging to Doane and consigned to Lane, Son & Fraser; 208 casks of spermaceti oil and 82 of head matter, belonging in part to Doane and in part to some of his whalemen, consigned to Bourne; and a quantity of staves and cord wood, belonging to Doane and also consigned to Bourne.17

The instructions which Doane gave to Bourne and to Lane, Son & Fraser were very broad. To alleviate a shortage of cash in Massachusetts, the Lusanna’s outward cargo of oil was to be sold and the proceeds brought directly to Doane by Bourne. If the acts of Parliament restricting New England were repealed, thus leading to the abrogation of the Continental Association, Bourne was to freight the Lusanna home with English goods, bought with Doane’s London credits. If the Acts were not repealed, Bourne was to use Doane’s funds to send the Lusanna with a cargo to the West Indies to be exchanged there for goods which did not violate the colonial ban on imports. If this was impossible, he was to carry English goods to Nova Scotia, take on a new, nonrestricted cargo there, clear out for the British West Indies, and come directly to Cape Cod. In any event he was to use his judgment in light of all the circumstances.18

Only a week after his departure Bourne met the setback which was to turn his trip from an ordinary if risky commercial venture into an epic voyage of mischance and duplicity. On 11 September, off Sable Island, about 200 miles east and south of Halifax, the Lusanna was “met by a violent gale of wind from E, and then shifting to ENE shattered our sails and rigging to a great degree carryd away our foretopmast without any canvas Spread and caused the brig to leak very much.”19 Thus damaged, she was forced to put into Halifax for repairs; on entering the harbor there, she was seized by a boat belonging to the Somerset man-of-war. The Lusanna was held for three weeks, although, according to Bourne, the attorney general at Halifax had ruled that all her papers were in order and that she was not in violation of any Act of Parliament.20 Finally she was released by order of Admiral Graves at Boston, and repairs were undertaken.

When the Lusanna was almost ready for sea, she was seized again on 28 October, apparently by virtue of new orders received by the Admiral from England, requiring all New England vessels to be detained until further notice.21 Bourne at once left for Boston, where he procured the vessel’s release, reportedly on condition that he take out a new register in Halifax, listing the vessel as of that port.22 At the time it was rumored that he had also agreed to bring a cargo back to Halifax.23 It is even possible that in his negotiations with Admiral Graves he had adopted the role of fleeing loyalist which he later played in England to his subsequent embarrassment, but there is no evidence of this. Whatever Bourne’s tactics, his success is attested by the fact that the Lusanna left Halifax, probably early in January, and arrived in London, “after a tedious passage,” sometime in March.24

Once in England, Bourne set about his assignment. The oil market was not at a desirable pitch in the spring of 1776, but, by October, Lane, Son & Fraser were able to report to Bourne that they had sold a good portion of the oil at a price near that which Doane had wanted, and that they expected little difficulty in selling the remainder.25 Bourne could not yet come home, however. He feared that an American vessel of ambiguous loyalties in London at that period would excite a certain amount of suspicion, and he deemed it unwise to hazard apprehension by the British until conditions improved.26 Other affairs kept him busy. Although witnesses later testified that Bourne had refused to charter the Lusanna to the military transport service, Lane, Son & Fraser got her a cargo to Gibraltar, which the evidence indicates was at least in part military stores. After having been registered again, this time as belonging to Shearjashub Bourne “of London,” she sailed for the Mediterranean at the end of September 1776, returning in February or March of the following year.27

Bourne was also charged with establishing correspondence with a London merchant for a new venture in the commission sale of “Oil, Pot and Pearl ashes &c.,” in which he, Doane, and Doane’s son Isaiah sought to embark. No details of his “plan” for this enterprise have been uncovered, but he was able to report that he had “settled the correspondence come out for with the best house in England for our interest . . . so that nothing prevents a prosecution but the American war.” At the same time he took advantage of his enforced stay to travel around England, meeting influential merchants and learning as much as he could about manufacturing, markets, and trade, for future commercial use.28

Another matter which concerned Bourne was Doane’s claim to a part of the cargo of the brigantine Industry, which had sailed from Wellfleet on 12 September 1775 and was seized off Plymouth on the same day by a British naval vessel. Aboard her were an additional 102 casks of whale oil belonging to Doane, consigned to Bourne or to Lane, Son & Fraser in London. A claim had been entered on behalf of the Industry’s owner for vessel and cargo, but on 12 October both were condemned in the Massachusetts Vice Admiralty Court for failure to give bond as required by the Restraining Act of 1775.29 The troubled conditions in Massachusetts had prevented Doane from making an appearance in the suit. When Bourne heard of this he procured from Doane a power of attorney to act in the matter, and a certificate of the collector of customs at Plymouth that he had not had the proper forms available when the Industry had cleared.30

Extracts from Bourne’s journal, and a memorial which he submitted to the Treasury in England, show that, for this purpose at least, he had assumed full loyalist coloration. He sought and obtained the favor of Thomas Hutchinson in London as he pressed his cause, and in the memorial told a sad tale of his flight from the colonies and his persecution at the hands of the villains who now were running the country. This document, prepared in January 1777, did at least reach the proper committee, but the claim was apparently rejected on the basis of an adverse opinion by Daniel Leonard, formerly of the Massachusetts bar, now solicitor to the American Customs Commissioners in London. Leonard found that Bourne could have had no interest in the voyage, that the owners had probably intended to bring back military supplies to the rebels, and that the collector had cleared her only under duress.31 An unintended result, however, was that journal and memorial were offered in evidence on the subsequent trial of the Lusanna as prize, doubtless contributing substantially to the jury’s determination against Doane.32 Unfortunately for Doane and Bourne, Leonard’s opinion was not available as a counterweight.

While he was pursuing the Industry claim, Bourne was apparently also seriously considering means of getting home. According to the later testimony of David Smith, a Cape Cod whaling captain who met him in London in February 1777, Bourne had at that date already developed what was essentially the scheme that he would later unsuccessfully attempt to carry out. When the last of the whale oil was sold, he planned to purchase a partial cargo for the Lusanna with £2000–3000 of Doane’s funds, then take on other cargo for Halifax to avoid suspicion and clear out for that port. In Halifax he would obtain the remainder of Doane’s English funds by negotiating bills of exchange on Lane, Son & Fraser, then clear the Lusanna out for the British West Indies with Doane’s goods still aboard and the cash in his strongbox. En route to the latter destination it would be a simple matter to put into a port on Cape Cod or other friendly territory.33

Whether this was the plan or not, the Lusanna began loading in June 1777 and cleared out at London for Halifax at the end of July. About 20 August, she left London, actually sailing from the Isle of Wight on 13 September.34 Her cargo included various goods to the value of about £2000, consigned by Lane, Son & Fraser to Bourne at Halifax, and provisions and liquors worth about £200 consigned by Bourne to himself or Messrs. Thomas Cochran & Co., Halifax merchants. Witnesses later said that Bourne claimed the ownership of all of these goods. The Lusanna also carried miscellaneous merchandise shipped by eight other English merchants, some of it consigned to Bourne, the rest to specific consignees in Halifax.35 Several passengers were aboard,36 as well as goods belonging to Captain James Shepherd, a Bostonian who had left London aboard the Lusanna after a fruitless attempt to appeal the seizure of his ship at Halifax a year earlier. Shepherd had been forced to remain at Cowes on the Isle of Wight, when he had been taken sick just before sailing, but his goods stayed aboard, consigned to Bourne.37

Bourne carried with him letters of introduction not only to Halifax merchants, but to Captain William Spry, “Commanding Engineer” there, which recommended him highly and spoke of his intention to remain at his destination, chartering the Lusanna as a transport until the war should end.38 He also carried two letters of credit, permitting him to draw up to £7000 against funds in the hands of Lane, Son & Fraser, in London.39 His own letter of instructions to Messrs. Cochran indicates the somewhat ambiguous nature of his intentions.

He wanted to sell the goods shipped by others for the interest of the shippers. The provisions shipped by Bourne, which he described as “belonging to myself,” were to be sold for his own interest, and an accounting made with Bourne, Lane, Son & Fraser, or Doane. The goods in the amount of £2000 shipped by Lane, Son & Fraser, which Bourne also claimed as his, were to be stored until further orders from Doane, Lane, Son & Fraser, or Bourne, and the Lusanna was to be laid up on the same terms.40

The Lusanna sailed as part of a fleet in convoy with the British frigate Venus, but on the night of 25 October she lost her escort in the fog, and in the morning Wood and Bourne determined to proceed to Halifax as best they could. Four days later on the 30th, they sighted an American privateer, which later proved to be the McClary out of Portsmouth. The Lusanna fled, but after a chase of about an hour and a half, she was overhauled. Several broadsides were fired by the McClary, and the Lusanna, outgunned as well as outsailed, soon struck.41

The McClary brought the prize into Portsmouth, where on 11 November 1777 she was libeled in the Court Maritime of the State of New Hampshire.42 The libelants were John Penhallow and Jacob Treadwell, representatives of the fifteen Portsmouth merchants who owned the privateer; and George Wentworth, agent for the crew, who was also a Portsmouth merchant and the brother of one of the owners.43

Bourne at once began a desperate search for counsel; not only were there considerable sums at stake, but the circumstances of the capture were such that his loyalty to the American cause might be questioned. Oliver Whipple, a Portsmouth lawyer, was engaged to watch over the preliminaries. On 17 November, Bourne wrote for assistance to Robert Treat Paine, who had not returned to Congress after his reelection in December 1776, and was now a member of the General Court and Attorney General of Massachusetts. Paine apparently could not take the case because he had to attend the General Court which sat at Boston from 4 to 15 December.44 Luckily, however, Adams reached Braintree on 27 November and some time thereafter was engaged by Doane.45 Paine seems to have been kept on retainer, for he was supplied with full notes of the trial, made by Whipple (Document III), and he argued the case on appeal to the New Hampshire Superior Court in March and September 1778.46 John Lowell, another Massachusetts lawyer, who had lived in Newburyport until some time in 1777, was also engaged by Bourne and Doane.

Lowell filed three claims in the Portsmouth court on 1 December 1777. The first, on behalf of Elisha Doane, was for the Lusanna herself, her appurtenances and stores, and that portion of the cargo that had been consigned to Bourne by Lane, Son & Fraser. A second claim, in behalf of James Shepherd, was made for the goods which the unfortunate captain had shipped. The third claim was in the name of Isaiah Doane, the Colonel’s son and trading partner, and was for the provisions and liquors which Bourne had shipped to himself, as well as for a few other items, apparently also Bourne’s.47 Bourne had conveyed this property to Isaiah Doane on 24 November 1777 in an admitted effort to divest himself of all interest in the outcome, so that under strict 18th-century rules of evidence he could qualify as a witness.48 The rest of the cargo was unclaimed.

Originally set for 8 December, the trial was postponed until the 16th.49 Bourne had urged Adams to arrive in Portsmouth on Saturday night the 13th to allow ample time for consultation and preparation beforehand (Document I). Adams endeavored to comply, but on the 13th, his second day of travel, “a horrid cold Rain” that wet him through caused him to halt at Newburyport, while “Coll. Doane who was in a stage Coach and his son who was in a close sulky proceeded on.”50 Adams finally caught up with his seemingly inconsiderate clients at Portsmouth the next evening. After spending a night at “the Tavern, Tiltons,” headquarters of Doane’s party, he moved to the house of General William Whipple, his friend and colleague in Congress, where his conversation seems to have made more of an impression upon the Reverend Ezra Stiles than his arguments later did upon the jury.51

On the eve of the trial Adams wrote most prophetically to Abigail: “The Cause comes on Tomorrow, before my old Friend Dr. Joshua Brackett, as Judge of Admiralty. How it will go I know not. The Captors are a numerous Company, and are said to be very tenacious, and have many Connections; so that We have Prejudice, and Influence to fear: Justice, Policy and Law, are, I am very sure, on our Side.”52 Adams was certainly not the first lawyer to discover that the latter three elements, however valuable, are not enough to outweigh a judge, who, despite old acquaintance, rules the “wrong” way on points of law, and a jury, whether prejudiced or stubborn, which refuses to accept a subtle interpretation of an ambiguous factual situation.

The evidence at the trial consisted primarily of papers found aboard the Lusanna, or submitted by Doane from his records, and the depositions of absent witnesses.53 Probably prior to trial, counsel for Doane had offered a set of interrogatories raising questions as to Bourne’s role and the ownership of vessel and cargo, which were to be administered to Bourne, Matthew Wood, and “other witnesses.” On the libelants’ motion Bourne and Wood were rejected by the court as interested in the outcome, thus defeating Bourne’s stratagem of conveying away his interest.54 No other witnesses were called by the claimants to testify to the issues which the interrogatories covered, although many of the same questions were asked of the libelants’ witnesses on cross-examination during the taking of depositions.

As Adams’ minutes (Document II) and those of Whipple (Document III) show, the libelants asserted two principal grounds of condemnation, based on Resolves of Congress and New Hampshire statutes: (1) That the vessel and goods were forfeited as being the property of inhabitants or subjects of Great Britain. (2) That vessel and goods were forfeited because the Lusanna was carrying supplies to the “Fleet or Army” of the enemy.55 To the first point counsel for the captors argued that the evidence of the register and invoices, as well as several depositions, showed that the property in both vessel and goods was Bourne’s, not Doane’s, and that Bourne by his statements and actions, including insuring the vessel against loss to American privateers, had revealed himself as a loyal subject of the Crown. They also apparently argued that since English insurers would actually bear the loss, the goods were in effect British property. On the second point the libelants urged both the voyage of the Lusanna to Gibraltar in 1776 and her clearance with cargo for Halifax on her last voyage. Adams and Lowell sought to have evidence of the Gibraltar trip rejected as being outside the allegations of the libel, but the court once more ruled against the claimants. As to the Halifax point, the libelants could not offer direct evidence that the cargo was being shipped to the British forces, but pointed again to their evidence of Bourne’s loyalist sympathies.

Adams and Lowell argued in opposition that on the facts the property was still Doane’s, since Bourne had no authority as his agent to effect a conveyance; in any event, all of Bourne’s representations of ownership were a “cover” designed to avert British suspicions. As to Bourne’s alleged loyalty to George III, it was part of the “cover,” but even if it had been fact, it could not be imputed to Doane. In his argument as reported by Whipple (Document III), Adams contended that the insurance against privateers was also part of the “cover,” and that merely because it threw the loss on British insurers, it could not be deemed to pass the property to inhabitants of Great Britain. Having previously lost the argument on the relevance of the Gibraltar voyage, Adams and Lowell were forced to take the position that royal forces there were not “the enemy” within the meaning of the applicable statutes, and that the evidence was inadequate to show that supplies had actually been transported to the fleet or army. As for Halifax, they argued that the necessities of the situation, rather than loyalist sympathies, explained Bourne’s clearing for that port, and that the evidence was to the effect that none of the cargo had been intended for the fleet and army.

Despite these arguments the jury brought in a general verdict for the libelants, and the court decreed the Lusanna and her cargo forfeit.56 The basis of the verdict of course cannot be known, but it can be justified on the facts. The first ground of condemnation urged in the libel, that vessel and cargo were the property of British subjects, should not properly have been the basis of forfeiture. The general situation and the letters and other papers of Bourne and Doane, which the libelants did not impeach, suggest most strongly that the property remained in Doane throughout, and that all actions and representations on Bourne’s part tending to the contrary were only a ruse intended to prevent seizure by the British. The libelants offered no evidence that Bourne had used his own funds for goods or credit. Since the vessel and goods belonged to Doane, and his loyalty was unchallenged, the property could not be that of an inhabitant or subject of Great Britain; further, even if Bourne were a loyalist, to the extent that he acted as a British subject or inhabitant, he would seem to have acted outside the scope of the very broad authority given him by Doane, so that the latter could not be charged with such conduct.

The libelants were on stronger ground with the contention that the Lusanna had been carrying supplies to the enemy. The court’s decision that evidence of the Gibraltar run was within the libel seems strained, because the analogy to a continuing trespass apparently relied on is dubious. Here two distinct events are in question; moreover, 18th-century practice generally favored an identity of pleading and proof.57 Once admitted, however, the evidence, if believed, provided an arguable basis for forfeiture. Adams urged that the applicable statutes covered only enemy forces actually arrayed against the colonies (Document III), a reasonable construction of the Resolve of Congress. The New Hampshire statute also relied upon by the libelants could be read to include activities in other parts of the world, however.58 If Adams argued that the latter statute did not apply in the face of resolves of Congress which occupied the field, Whipple did not record the fact.

As to the Halifax voyage, once again the New Hampshire act was broad enough to include carrying supplies to the inhabitants of enemy territory, as well as to enemy forces. Even if such a construction were not adopted, the evidence of Bourne’s loyalist position, which was damning if the explanation of it was not believed, gave rise to an inference that he was dealing with consignees who would sell to the armed forces, thus indirectly supplying the enemy even in the narrower sense. No troublesome questions of Doane’s liability for these acts of his agent had to be met, because, under the New Hampshire act at least, condemnation turned on the employment of the vessel, rather than on its ownership.59

In fairness to Bourne it should be noted that he had to go to Halifax; he could not leave Britain without clearing for a loyal port, and he could not draw the bulk of Doane’s funds except through bills negotiated there, unless he wanted to carry them in specie, subject to both the natural perils of the sea and the danger of British or American naval action. In fairness to the jury, Bourne was in fact headed for Halifax with a history of loyalist sympathy and a cargo consigned there; whatever his intentions, he was still in a position at Halifax to trade with the enemy; and at the trial it was explanations by his counsel rather than hard evidence of his character or motives which were balanced against his prior conduct. Bourne in all probability intended to make for Cape Cod with whatever assets he could salvage as soon as he safely could, but he had sufficiently compromised himself through the exigencies of his situation that he had to bear the risk of being misunderstood. The Portsmouth jury was not only of local origin, but may well have been subject to influence by the McClary owners.60 On the evidence before it, however, the verdict of condemnation was not clearly the result of prejudice and bias.

After the decree the claimants sought an appeal to Congress. This the court denied, on the ground that the applicable New Hampshire statutes provided an appeal only to the state Superior Court.61 Here was the issue which was to keep the case in the courts until 1795—the question of federal against state power. Adams did not participate in the later phases of the litigation, but his argument at Portsmouth reveals that the problems of overlapping jurisdiction were present even on the lower level. He seemed to assume that the resolves of Congress would control, since, as has been noted, he apparently did not argue the point. Thus, not only did he base his argument entirely on those resolves, ignoring the conflicting language of the New Hampshire act, but he, and Lowell also, cited prior decisions from their experience with the Congressional Commissioners of Appeals as precedents for the construction of the resolves.62 In addition, Adams supplied a kind of “horse’s mouth” legislative history, both of these statutes and of other Congressional measures, such as the Continental Association and Declaration of Independence.63 The jury seems to have ignored these authorities, as well as the implication that they alone were decisive of the case.

The trial of the Lusanna marked the end of Adams’ active legal career in a very definite way. According to his Autobiography, it was while he was actually attending in court that “Mr. Langdon came in from Phyladelphia and leaning over the Bar whispered to me, that Mr. Deane was recalled, and I was appointed to go to France.”64 The date of this dramatic episode cannot be determined exactly, since the duration of the trial is not known, but it must have been between 16 December and the 20th, when Ezra Stiles reported in his diary that the news was known in Portsmouth.65 It was almost certainly on the latter date that Adams left for Boston, because he arrived at Braintree on 22 December. On the following day he accepted appointment as a Joint Commissioner to France in a letter to Henry Laurens, President of Congress. He can have had little time or inclination for further involvement in practice during the few short weeks of preparation before his departure from Braintree on 13 February 1778 aboard the Continental frigate Boston.66

The subsequent history of the Lusanna is of great complexity, and can be only sketched here. In March 1778 the case was entered at the Superior Court with Paine now joining Lowell as counsel for the claimants. There the jury disagreed and was discharged. At the September 1778 term of the court at Exeter, the case came on again for a lengthy trial.67 At least 38 new depositions were produced, nearly all of them for the claimants. The areas in which they sought to bolster their case are an interesting reflection of the weaknesses which appeared at the trial in the Maritime Court. Bourne was again rejected as an interested witness,68 but Matthew Wood’s testimony as to the voyage out and Shepherd’s predicament was this time accepted.69 Other witnesses testified to the extent of Doane’s credits in the hands of Lane, Son & Fraser; to Bourne’s character as a patriot and his occupation as a lawyer with no trading interests, who went to London merely as Doane’s agent; to Doane’s ownership of a share of the Industry’s cargo; to the common practice among American captains of taking out false registers and clearances in British ports to avoid seizure;70 and to Bourne’s plans in February 1777 to clear out with false papers and make for home.71

The chief source of contention seemed to be the status of Halifax, a matter which both sides had left to assumption in the earlier trial. The claimants produced at least twelve depositions to the effect that the British garrison there was small and unwarlike, that the inhabitants were friendly toward America, and that the consignees of the Lusanna’s cargo were not army or navy supply contractors.72 Here the libelants interposed the only new evidence which they offered, two depositions stating that there was a sizable garrison at Halifax with a real military role, and that a substantial number of naval vessels berthed there.73 Finally, several depositions were offered in behalf of James Shepherd, testifying to his patriotism and to his ownership of the goods which he claimed.74 Despite this mass of evidence, the jury found for the libelants once more. The claimants’ appeal to Congress was again refused,75 and on 18 September the Lusanna and her cargo were sold at auction under the court’s decree. After court costs of £59 15s. and costs of sale were deducted, the “neat proceeds,” amounting to £3 3,957 10s. 3 1/2d., lawful money, were divided equally between the owners’ representatives, Penhallow and Treadwell, and Wentworth, agent for the crew.76

Undismayed by the denial of his appeal, Doane proceeded at once to petition Congress for review, asserting as major defects in the New Hampshire proceedings the prejudice of the local jury in favor of the local owners, and the rejection of Bourne’s testimony, which he claimed was vital to his case. On 9 October 1778, his petition was read in Congress and referred to the Commissioners of Appeal.77 In the meantime Congress was occupied with the momentous case of the sloop Active, an appeal from the Pennsylvania Admiralty Court, in which the Commissioners had reversed a decree based on a jury verdict in matters of fact. When the Judge and Marshal of the Philadelphia court refused to obey the Commissioners’ decree, they suspended activities, and the matter was turned over to a special committee of Congress for study. On 6 March 1779, with the delegates of New Hampshire voting Aye, Congress adopted the committee’s findings that Congress by virtue of the war power could try questions of law as well as fact in prize appeals; that no state law could interfere with the right to appeal to Congress in such cases; and that the Commissioners were competent to make a final decree in the case. Although the case of the Active remained unresolved for another thirty years, the Commissioners went back to work.78

The Lusanna was set for trial on 21 June 1779. The McClary party appeared, attacking the jurisdiction of the Commissioners on the basis of the New Hampshire statutes, as well as on procedural grounds, and perhaps also suggesting that the case was moot, the insurance having been paid to the claimants.79 The Commissioners held on 26 June that they had jurisdiction of the case, both by virtue of the original resolves of 1775 and under the resolution adopted in The Active. They declined to proceed, however, until New Hampshire should have time to react to the latter, which had been transmitted to the state legislature.80 Before the Commissioners could take further action, Congress on 15 January 1780 established the Court of Appeals in Cases of Capture, to try all prize appeals from the state courts “according to the usage of nations, and not by jury.”81 The roster of three judges was completed on 4 May, and on the 24th of that month Congress ordered all appeals now pending before it or the Commissioners to be referred to the new court.82

On 1 March 1781, the Articles of Confederation became effective when they were ratified by Maryland, the last state to do so. Although the Articles contained a grant of exclusive federal jurisdiction in prize appeals, which served to confirm the establishment of the Court of Appeal,83 it was not until September 1783 that the Court called the case of the Lusanna for trial. The owners later complained that they had had no time to prepare, but at the argument held at Philadelphia on 11–13 September, both parties were represented by an array of distinguished counsel. After the jurisdictional objection was once more overruled, the case was reargued on the merits, apparently solely on the record and files of the New Hampshire proceedings. Minutes of the hearing preserved in the files of the Court of Appeals indicate that it was in the form of an appellate argument familiar to lawyers today, with considerably more emphasis on legal questions and authority than had been the case at Portsmouth in 177784 The arguments presented for the Lusanna prevailed, and on 17 September, the court gave its decree, reversing the sentence of the New Hampshire court and ordering the restoration of their property to the claimants. John Lowell, Adams’ assistant at Portsmouth and now a judge of the Court of Appeals, did not take part in the hearing or decision.85

The McClary party now turned to legislative channels for redress. With the support of the New Hampshire legislature and General John Sullivan, who acted as their agent, they sought relief in Congress, complaining of the decision in “a cause so essentially affecting the Sovereignty and Independence of this State, as well as the rights and property of your memorialists,” by an authority “assumed and arbitrary to an extreme, by no means justified by the confederation, even if that had been completed at the time of the trials in this State, infinitely less so, as it was not until long after the sentence of our Supreme judicial Court within the State.” The question was referred to a committee which submitted a report, in Thomas Jefferson’s hand, holding that, since the case had arisen and been submitted to the jurisdiction before the ratification of the Articles of Confederation, Congress was ousted of appellate jurisdiction by the New Hampshire statute. In Congress, 30 March 1784, on the question of agreement with the report, the affirmative could not sustain a majority of the states, and the question was lost.86

Confirmed in their victory, the administrators of Elisha Doane (who had died in January 1783)87 and the other claimants set about obtaining satisfaction. Since the Court of Appeals had no power to enforce its own decrees they were forced to turn to the state courts. No record of an attempt to recover in New Hampshire has been found; the steadfast position of the state legislature in upholding the earlier decisions of its courts suggests that the effort was not deemed worth making. In June 1784 at the Suffolk County, Massachusetts, Inferior Court, the administrators began an action founded on the Court of Appeals decree. At the February 1786 term, on appeal to the Supreme Judicial Court, the decree was offered in evidence. According to later accounts, it was rejected by Justices William Cushing, Nathaniel Peaslee Sargeant, and David Sewall, on the grounds that the Court of Appeals had lacked jurisdiction and the New Hampshire decree was final. The plaintiffs discontinued their action.88 Again in March 1786 the administrators, as well as Isaiah Doane in his own right and Shepherd, brought suit in the Court of Common Pleas of Philadelphia County, proceeding by way of foreign attachment against a vessel belonging to one of the McClary owners found in Philadelphia. On motion to quash the attachments, the court at the September term, 1787, found it unnecessary to decide the questions of the Court of Appeals’ jurisdiction, or whether the discontinuance in Massachusetts was conclusive upon the plaintiffs; it ordered the attachments dissolved, however, holding that a common-law court lacked jurisdiction to enforce the decree of an Admiralty court in a prize case, at least where to do so would raise the question of prize or no prize, which is exclusively of Admiralty jurisdiction.89

The case lay dormant until the new system of federal courts decreed in the Judiciary Act of 1789 was firmly established. Finally in March 1792 the administrators libeled the McClary owners in the United States District Court for the District of New Hampshire, setting forth the decree of the Court of Appeals and asking that it be carried into execution.90 Since John Sullivan, Judge of the District Court, had once acted as counsel for the owners, the action was removed to the Circuit Court for the District of New Hampshire under an Act of 1792 providing this procedure for such a situation.91 In October 1793 the case came on for trial in the Circuit Court before Justice John Blair, the only issues being jurisdictional. Blair found for the administrators and directed commissioners to ascertain the damages. A year later, with Justice William Cushing on the bench, the commissioners reported that at the time of the sale under the 1778 decree the Lusanna and her cargo had been worth £5895 145. 10d. Interest from the date of the sale until the date of the report was £5659 175. 4d. On 24 October 1794 Cushing handed down a final decree, awarding the administrators the equivalent sum of $38,518.69, with $154.30 costs, to be recovered in full against any one of the respondents separately.92

The case came up to the Supreme Court on writ of error and was argued and decided at the February term 1795-93 Eight errors were assigned, of which the following were the principal ones: (1) That the decree was void because the Court of Appeals lacked jurisdiction; (2) that it was matter of record that Elisha Doane was dead when the decree issued in his name; (3) that the libel sought performance of the Court of Appeals’ decree of restitution, rather than damages for nonperformance; (4) that the decree of the Circuit Court held the owners’ agents and the captors’ agents each in full damages, although the proceeds had originally been divided equally between them; (5) that there was no jurisdiction in Admiralty of the libel filed in the District Court.94

The seriatim opinions of Justices Paterson, Iredell, Blair, and Cushing, which take up forty-one pages in the printed report, were primarily concerned with the jurisdictional issue.95 All four agreed that the Court of Appeals, sitting after the ratification of the Articles of Confederation, was validly constituted and had jurisdiction of the subject matter by the authority of that instrument; thus its ruling that it had jurisdiction in the premises (which could not be overturned by collateral attack) also cured any defects arising from the fact that the case had been filed before the ratification of the Articles. Since the jurisdiction was exclusive, it ousted all claims of the states to create courts of last resort. Only Paterson and Blair clearly held that the inherent war power of Congress was sufficient to validate the jurisdiction in the period before the Confederation. It thus cannot be said that there was a decision of the court on this point.96 Doane’s death was held not material, primarily because the action had been in rem, but it was agreed that the question was, in any event, foreclosed by the failure to raise it below. The four justices likewise agreed that the failure to pray for damages was cured by the libel’s prayer for general relief; and that the District and Circuit courts had had jurisdiction of the matter in Admiralty, as the only courts competent, and by analogy to the jurisdiction to enforce the decrees of foreign Admiralty courts.

The only disagreement affecting the outcome was in the matter of damages. All concurred that interest should be allowed only from September 1783, the date of the Court of Appeals decree, and that the damages should have been levied severally in proportion to the original award in favor of the McClary. Iredell and Blair held that George Wentworth, the agent for the crew, should not be liable, since he had in good faith paid over the entire sum awarded under a decree binding under state law, without actual notice that the appeal was going forward. Since the court was evenly divided on this point, the prior judgment that Wentworth was liable stood, but the Circuit Court decree was modified so that the smaller interest figure was reflected. The total award was divided into two halves of $16,360.68, one half to be recovered against the agents of the owners, and the other against Wentworth.97

So eighteen years after Adams had argued their case in Portsmouth, the persevering Doanes prevailed. The decision brought a flurry of newspaper and pamphlet criticism of the court for this blow to the sovereignty of the states, but the court withstood the attack as it has in similar circumstances since.98 Despite the intensity of the appellees’ resistance, the Doanes were apparently able to recover about 80 percent of the sum awarded against Penhallow and Treadwell; Wentworth’s liability was discharged on his submission of 10,000 acres of land valued at about $3300.99 The Doanes’ troubles were not yet over, however. The English insurers of the Lusanna and her cargo, as patient as their erstwhile clients, now proceeded to sue the administrators in the Federal Circuit Court for Massachusetts to recover the sums paid out under the policy. From the beginning the McClary party had pointed to the insurance as defeating Doane, first as a transfer of property, then by making his claim moot through payment. These attacks had been resisted successfully, but now the reckoning must be paid.

Three actions were brought—one against Bourne, one against David S. Greenough (who had married Elisha Doane’s widow) “et al.,” and one against Greenough’s executors. The last-named suit was dropped in October 1801 as a “misentry.” In April 1802 a jury found a verdict for Bourne, and the suit against Greenough et al. was continued. At the October term 1802 in the latter action it was “suggested that the Plaintiff is dead,” and the case further continued. Finally, in June 1803 neither party appeared. Greenough and Doane now attempted to negotiate a settlement with the insurers. In February 1804 John Lane reported that at least some of the underwriters were ready to settle for their costs, and, in a reply dated 18 May, Greenough and Doane agreed to these terms, “upon condition, that we be secured from any farther suits, &c.” In July, however, Lane wrote that a settlement was not yet forthcoming due to the expense and difficulty of obtaining the consent of the individual underwriters involved. Since no further correspondence has been found, the conclusion of the Lusanna’s voyage remains unknown.100

1. For a concise history of the English prize jurisdiction, see 1 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 561–568.

2. 6 Anne, c. 37 (1708).

3. Andrews, “Introduction,” Records of the Vice Admiralty of Rhode Island 41 (Washington, ed. D. S. Towle, 1936). For an account of the development of the jurisdiction, see id. at 35–42. For a contemporary account, including a copy of the warrant issued for trial of prizes in 1756, see Anthony Stokes, A View of the Constitution of the British Colonies 275–281 (London, 1783). Forms used in the West Indies appear in id. at 276–357. For some of the jurisdictional and other problems presented by appeals from the Vice Admiralty courts in prize cases, see Smith, Appeals to the Privy Council description begins Joseph H. Smith, Appeals to the Privy Council from the American Plantations, N.Y., 1950. description ends 186–187, 518–520.

4. For the first years of the Continental Navy, see Howard I. Chapelle, History of the American Navy 52–79 (N.Y., 1949). As to Washington’s fleet, see William Bell Clark, George Washington’s Navy 1–98 (Baton Rouge, 1960). For the colonial navies and privateers, see Gardiner W. Allen, A Naval History of the American Revolution, 1:42–52, 132–152 (Boston and N.Y., 1913). As to JA’s interest, see 2 JA, Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends 201–202 note, 221–222 note.

5. For the Massachusetts court, see Act of 1 Nov. 1775, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 436, 438–441, as amended, Act of 13 April 1776, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 474. The jurisdiction was later extended to certain traditional maritime causes such as seamen’s wages, salvage, and disputes between part-owners, as well as to offenses against a law prohibiting the exportation of naval stores, but the jury was retained. Act of 29 April 1778, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 806; Act of 19 Feb. 1779, 5 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 930. For a summary of legislation in other states, see Davis, “Federal Courts Prior to the Adoption of the Constitution,” 131 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends , Appendix xx—xxii (1889); Hampton L. Carson, The Supreme Court of the United States 44–47 (Phila., 1892). For the work of these courts, which did much to pass on the Admiralty tradition to the courts of the United States, see Wiener, “Notes on the Rhode Island Admiralty, 1727–1790,” 46 Harv. L. Rev. description begins Harvard Law Review. description ends 44, 59–62 (1932); Hough, Reports description begins Charles M. Hough, ed., Reports of Cases in the Vice Admiralty of the Province of New York and in the Court of Admiralty of the State of New York, 1715–1788, New Haven, 1925. description ends 243–254; Ubbelohde, Vice Admiralty Courts description begins Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution, Chapel Hill, 1960. description ends 195–201. For JA’s later comments on the Massachusetts act, see his letter to Elbridge Gerry, 14 April 1813, 10 JA, Works description begins The Works of John Adams, Second President of the United States: with a Life of the Author, ed. Charles Francis Adams, Boston, 1850–1856; 10 vols. description ends 37.

6. For the Congressional Resolve of 25 Nov. 1775, and a further resolve of 23 March 1776, see note 3 below. For the work of the special committees and the resolve creating the Standing Committee, see Davis, “Federal Courts,” 131 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends , Appendix xxii—xxiii; 7 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 75. For the cases which came before special committees, see McAroy v. The Thistle, note 41 below; National Archives, The Revolutionary War Prize Cases 26–27 (pamphlet accompanying Microcopy No. 162, Washington, 1954). It has been suggested that the idea of trial by committee may have come from the example of the British practice under which appeals from the Vice Admiralty courts in cases of prize went to Lords Commissioners for hearing such appeals, a committee of the Privy Council. Jameson, “The Predecessor of the Supreme Court,” in J. Franklin Jameson, ed., Essays in the Constitutional History of the United States 13–16 (Boston and N.Y., 1889). It should be noted, however, that after 1762 this committee included the judges of the common-law courts. See 1 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 565 note.

7. JA was appointed to the Standing Committee on 12 March 1777, when three members were added to the original five. 7 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 172. On 8 May 1777, when the old committee was discharged as being “too numerous,” he was one of a new committee of five, “they or any three of them to hear and determine upon appeals brought to Congress.” Id. at 337. In Oct. he was the only one reappointed to a new committee constituted because “a number of the members appointed to hear and determine appeals are absent.” Resolve of 13 Oct. 1777, 9 id. at 800. For his relief from the Committee, see Resolution of 17 Nov. 1777, 9 id. at 936. During this important year, he also presided over the constantly busy Board of War and Ordnance. There is no reference to the work of the Standing Committee in his diary, which is extremely fragmentary for this period, or in his Autobiography. See 2 JA, Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends 262 note; 3 id. at 447 note.

8. The papers are preserved in DNA: RG 267. They have been filmed as National Archives Microcopy No. 162, “The Revolutionary War Prize Cases: Records of the Court of Appeals in Cases of Capture, 1776–1787,” and will be hereinafter cited as DNA Microcopy 162, Case— (numbered documents within a case file will be cited as No. –). The five cases on which JA definitely sat were Newman v. The Sherburne,DNA Microcopy 162, Case 10 (see note 9 below); Alsop v. Ruttenbergh, id., Case 11 (see note 42 below); The Industry, id., Case 14; Palmer v. Hussey, id., Case 17; The Greenwich, id., Case 19. The appeal papers are incomplete for White v. Sloop Polly and Cargo, id., Case 12; The Leghorn, id., Case 13; The Montgomery v. The Minerva, id., Case 15; Hopkins v. Derby, id., Case 6; and Fowkes v. The Roseanna, id., Case 20 (JA was familiar with the last-named case, decided just before his departure from Congress. See note 29 below). His name does not appear in the file of Pierce v. The Phoenix,DNA Microcopy 162, Case 8, but he had judged another phase of this case in The Greenwich, cited above.

9. For the style of the “Court,” see the decree in The Industry,DNA Microcopy 162, Case 14. The matters of procedure noted in the text appear in all of the cases having appeal papers which are cited in note 8 above. The attitude of Congress toward the court appears in the report of the Marine Committee on a petition apparently transmitted through JA by his former client, Timothy Folger (No. 45), in behalf of the crew of a Nantucket whaler condemned as prize. The court in affirming the condemnation had awarded wages to the crew, as provided by resolve of Congress (note 3 below), but Folger sought a share of the profits for them, claiming this to be the custom of whalers. The Marine Committee reported adversely, on the grounds that the petition raised questions of “construction of the promulgated resolutions of Congress, which make part of the code of laws of maritime war, which laws ought to be construed and applied by the courts of admiralty and commissioners of appeals in their judicial capacity, and not by Congress” and that since the case had already received “a judicial determination before the said courts” in which the issue might have been raised, it was improper for Congress to act upon it. The resolution was concurred in by Congress on 23 May 1777. See Newman v. The Sherburne,DNA Microcopy 162, Case 10; 8 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 383–384. The states were not so ready to recognize these decrees. See The Active, note 78 below.

10. As to JA as Chief Justice, see vol. 1:xci above. For evaluation of the court’s role, see sources cited in notes 5, 6, above. The continuity between the Court of Commissioners and the Supreme Court is perhaps best illustrated by the fact that James Wilson sat as a Commissioner with JA in many of the cases cited in note 8 above, then argued before the Court of Appeals in Cases of Capture (see note 84 below), and finally took his seat as one of the first members of the United States Supreme Court (see note 95 below).

11. JA was granted leave on 7 Nov. 1777, left York, Penna., on the 11th, and arrived at Braintree on 27 November. See 9 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 880; 2 JA, Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends 267–269. An account of his reasons, which included the desire to obtain some of the legal business created by the prize courts, appears in 4 id. at 1.

12. For another JA case involving Doane, see No. 52. Doane has been described as the second richest man in the Province. See Samuel E. Morison, Maritime History of Massachusetts 25 (Boston, 1921). Compare 2 JA, Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends 61.

13. See Doane v. Treadwell and Penhallow; the Brig Susannah,DNA Microcopy 162, Case 30. The spelling “Lusanna” has been adopted in the present work for reasons stated in note 77 below.

14. For restrictions on Massachusetts and the Port of Boston passed in 1774, see No. 53, text at notes 1, 2. New England was further restricted by the statute, 15 Geo. 3, c. 10 (1775), which provided that after 1 July 1775 enumerated goods produced in New England could not be exported and that other goods could be shipped only to Great Britain or the British West Indies. No imports were to be permitted except from Great Britain and, in certain cases, Ireland. The trade of New Jersey, Pennsylvania, Maryland, South Carolina, and Virginia was similarly restricted by 15 Geo. 3, c. 18 (1775). It was not until the Act of 16 Geo. 3, c. 5 (1776), note 23 below, that all colonial trade was embargoed. See generally, Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 538–540 (N.Y., 1918).

15. See Doane to Lane, Son & Fraser, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 107; Deposition of Joseph Doane, undated, 1778, id., No. 133; Deposition of John Greenough, 19 Jan. 1778, id., No. 127; Deposition of David Greenough, 20 Feb. 1778, id., No. 136. An account furnished Doane in April 1781 by Lane, Son & Fraser, showed that, as of 30 April 1775, Doane’s balance was £3690 19s. 6d. and that in April 1779, 34 bundles of whale fins in their hands sold for £530 17s. id. MHi: David S. Greenough Papers. For this and all other references to the Greenough Papers the editors are indebted to Mrs. Katherine A. Kellock of Washington, D.C., who has been of great assistance in the case of the Lusanna, not only by uncovering sources which might otherwise have been overlooked, but by supplying a chronology of the case, which was a valuable aid in the preparation of this editorial note.

16. Joseph Doane, who figured also in Doane v. Gage, No. 43, and Rex v. Nickerson, No. 57, had been master of the Lusanna on her whaling voyage and supervised her loading for the voyage to London. See his deposition, note 15 above. The Lusanna, a square-sterned brigantine of seventy tons, originally built as a sloop in 1760, had been purchased by Elisha Doane from his father’s heirs and rebuilt in 1773. Ibid.; Lusanna’s Register, 28 June 1773, DNA Microcopy 162, Case 30, No. 62. For Bourne’s recantation on 27 Sept. 1774 of his participation in the address of the bar to Governor Hutchinson at the latter’s departure from the Province in June 1774, see Deposition of Nathaniel Freeman, 18 Aug. 1778, DNA Microcopy 162, Case 30, No. 122. Bourne (1746–1806), Harvard 1764, had been admitted an attorney in the Superior Court in 1767, and a barrister in 1772. Min. Bks. 82, 97, SCJ. He suffered no permanent political ill effects from his involvement in the affair of the Lusanna, since he sat in the General Court in 1782–1785 and 1788–1790, was a member of the Ratification Convention in 1788, served in Congress from 1791 to 1795, and was appointed a Massachusetts Common Pleas judge in 1799. See Biog. Dir. Cong. description begins Biographical Directory of the American Congress, 1774–1949, Washington, 1950. description ends

17. See “Invoice of the Brigantine Lusanna’s Cargo to London,” undated, DNA Microcopy 162, Case 30, No. 103. Bills of lading and other shipping documents appear in id., Nos. 90–99. For the certificates of bond which she gave on clearance, see id., Nos. 63, 64, 66. Compare Deposition of Matthew Wood, 28 Jan. 1778, id., No. 118. As to the Continental Association, see note 16 below.

18. Doane to Bourne, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 92; Doane to Lane, Son & Fraser, 29 Aug. 1775, id., No. 107.

19. Bourne to Doane, Halifax, 29 Sept. 1775, DNA Microcopy 162, Case 30, No. 76.

20. Bourne to Doane, Halifax, 29 Sept. 1775, DNA Microcopy 162, Case 30, No. 76.

21. Bourne to Lane, Son & Fraser, Halifax, 3 Nov. 1775, note 20 below; Deposition of Richard Baxter, 9 Jan. 1778, DNA Microcopy 162, Case 30, No. 148.

22. Bourne to Lane, Son & Fraser, Halifax, 31 Dec. 1775, note 21 below. As to the condition, see Deposition of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, No. 118.

23. Doane to Bourne, 12 Feb. 1776, DNA Microcopy 162, Case 30, No. 113.

24. Bourne to Doane, London, 6 May 1776, DNA Microcopy 162, Case 30, No. 77. Deposition of Richard Baxter, 9 Jan. 1778, id., No. 148. On 11 April 1776, Samuel Curwen, chronicler of the doings of loyalists in London, reported that he had dined in company with “a Mr. Bourne, lately arrived from Halifax . . . a grave solid man.” Curwen, Journal and Letters description begins The Journal and Letters of Samuel Curwen, ... from 1775 to 1783; with an Appendix of Biographical Sketches, ed. George Atkinson Ward, 4th edn., Boston, 1864. description ends 52–53 (London, 1842). The editors are indebted to Mrs. Kellock for this reference.

25. Doane wanted £45 per ton for body oil and a proportionate price for head matter. The sale in Oct. was at £43 for body oil. Lane, Son & Fraser to Bourne, 1 Oct. 1776, PCC No. 44, fol. 311. See Doane to Lane, Son & Fraser, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 107.

26. Bourne to Doane, 12 Oct. 1776, note 23 below; same to same, 18 Sept. 1776, DNA Microcopy 162, Case 30, No. 78.

27. See Deposition of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, No. 118; Lane, Son & Fraser to Bourne, 1 Oct. 1776, note 9 below; Deposition of Lot Lewis, 4 Dec. 1777, note 117 below; Lusanna’s register, 3 Aug. 1776, note 5 below; Deposition of David Smith, 13 July 1778, DNA Microcopy 162, Case 30, No. 135. Doane had suggested the change in register in a letter of 12 Feb. 1776. Id., No. 113. The Lusanna’s account with Lane, Son & Fraser, furnished by the latter in 1781, and a letter of Doane’s widow to them, 14 Nov. 1783, confirm that government stores were a part of the cargo out, and indicate that on the voyage the vessel called at Barcelona and took on freight at Malaga. MHi:Greenough Papers; see note 9 below.

28. Doane to Lane, Son & Fraser, 29 Aug. 1775, DNA Microcopy 162, Case 30, No. 107; Bourne to Doane, 18 Sept. 1776, id., No. 78; see also same to same, 12 Oct. 1776, id., No. 29.

29. Note 14 above. The papers in the action are in DNA Microcopy 162, Case 30, Nos. 37–58. See note 25 below. See also Deposition of Jacob Williams, 31 Aug. 1778, id., No. 140. The claimant had sought an appeal to the Privy Council, but withdrew it upon advice of counsel. Opinion of Daniel Leonard, 4 Aug. 1777, PRO, Treas. 1:528. The Industry herself was reported destroyed in March 1776 when the British left Boston. Bourne to Doane, 18 Sept. 1776, DNA Microcopy 162, Case 30, No. 78. For some earlier problems of her new owners, see PRO, Treas. 1:513, fol. 266, et seq. Notes of the contents of the PRO documents were furnished to the editors by Mrs. Kellock.

30. See Deposition of John McFarland, In the Exchequer, 28 Jan. 1777, DNA Microcopy 162, Case 30, No. 58; Doane to Bourne, 12 Feb. 1776, id., No. 113; Doane’s power of attorney to Bourne, 1 Oct. 1775, id.,No. 61; Certificate of Edward Winslow, Deputy Collector, Plymouth, 1 Feb. 1776, id.,No. 57. It was later suggested that the claim had been made with Doane’s assent and that he could have entered Boston to appear. Opinion of Daniel Leonard, 4 Aug. 1777, PRO, Treas. 1:528.

31. Opinion of Daniel Leonard, 4 Aug. 1777, PRO, Treas. 1:528, with endorsement of Richard Reeve, secretary to the Commissioners, 27 Aug. 1777, indicating that on the basis of the opinion Bourne’s memorial would not be acted upon further.

32. Bourne’s Memorial to Lords of Treasury, 30 Jan. 1777, in note 14 below. Extracts from Bourne’s journal in note 8 below.

33. Deposition of Captain David Smith, 13 July 1778, DNA Microcopy 162, Case 30, No. 135. See also Deposition of William Claghorn, 20 Aug. 1778, id., No. 149. Doane had suggested a somewhat similar plan in his instructions to Bourne on 29 Aug. 1775, note 18 above. See Deposition of David S. Greenough, 20 Feb. 1778, DNA Microcopy 162, Case 30, No. 136.

34. See Invoice and Bill of Lading, Lane, Son & Fraser to Bourne, 10 June 1777, note 6 below; Certificate of bond for enumerated goods, London, 26 July 1777, DNA Microcopy 162, Case 30, No. 32; Deposition of Thomas Casey, 3 Dec. 1777, note 8 below; Deposition of Lot Lewis, note 12 below.

35. For the first two invoices consigned to Bourne, see notes 6, 7, below (a complete inventory of the £2000 invoice appears in SF 104193). For the others, see DNA Microcopy 162, Case 30, Nos. 16–27. See also notes 11, 34, below.

36. See Depositions of Thomas and Mary Casey, 3 Dec. 1777, notes 8, 10, below; Deposition of Edmond Coffin, 2 Sept. 1778, DNA Microcopy 162, Case 30, No. 121.

37. See note 27 below. As to Shepherd’s problems, see Deposition of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, No. 146.

38. Edward Crosby to William Spry, 16 July 1777, note 13 below. See also William Cochran to Thomas Cochran & Co., 23 Aug. 1777, DNA Microcopy 162, Case 30, No. 35.

39. See note 10 below. The oil had apparently not been sold at this date, since Lane, Son & Fraser’s account in 1781 shows that it was not until Sept. 1778 that £3378 10s. 2d. was credited to Doane as proceeds of its sale, giving him a balance, with interest, of £7732 18s. 6d. No drafts against the letters of credit were ever charged to this account. MHi: Greenough Papers.

40. Bourne to Messrs. Thomas Cochran & Co., undated, note 11 below.

41. See Deposition of Thomas Casey, 3 Dec. 1777, note 8 below; Deposition of Lot Lewis, 4 Dec. 1777, note 12 below; Libel, New Hampshire Court Maritime, 11 Nov. 1777, note 2 below. The McClary, one of New Hampshire’s leading privateers, was herself captured and her crew imprisoned at Halifax in 1778. Richard F. Upton, Revolutionary New-Hampshire 110, 112 (Hanover, N.H., 1936). See Library of Congress, Naval Records of the American Revolution 381 (Washington, 1906). The editors are indebted to Mrs. Kellock for the latter reference.

42. See note 2 below.

43. The owners were John Penhallow, Joshua Wentworth, Ammi R. Cutter, Nathaniel Folsom, Samuel Sherburne, Thomas Martin, Moses Woodward, Neil Mclntire, George Turner, Richard Champney, Robert Furniss, Jacob Treadwell, Thomas Dalling, Daniel Sherburne, and Keith Spence. See A Statement of the Cause of the M’Clary Owners, and Doane & Doane’s Administrators from its Commencement in 1777, to its Close in the Supreme-Court of the United States, Feb. 1795 5 (Portsmouth, 1795). Their counsel is noted by JA only as “Sewall,” and no other reference to his name has been found. This is either Jonathan M. Sewall (1748–1808), a Portsmouth lawyer who was also register of the Court Maritime, or David Sewall of York, Maine, about to take his seat on the Massachusetts Superior Court, who was present in company with JA at General Whipple’s on 18 December. See Bell, Bench and Bar of New Hampshire description begins Charles H. Bell, Bench and Bar of New Hampshire, Boston, 1894. description ends 629–630; 2 Stiles, Literary Diary description begins The Literary Diary of Ezra Stiles, D.D., LL.D., President of Yale College, ed. Franklin Bowditch Dexter, N.Y., 1901; 3 vols. description ends 238. Since “Sewall” appears twice in JA’s minutes (see text at note 2, and following note 12, below), it is possible that both Sewalls argued for the libelants. The second appearance, however, could reflect a recess and a resumption of note-taking by JA. See also note 88 below.

44. Paine had also had experience on prize appeals in Congress. See notes 41, 42, below. He had apparently already told Bourne’s emissary that he could not attend the trial when Bourne wrote him requesting “Council in a Cause which nearly affects my interest, (if not Character),” and asking that Paine reconsider. He went on: “If Sir you are previously engaged, I can say no more. If you are under a retaining fee I can only say, I am unfortunate; if you are at liberty and so engaged, that you cannot attend me and Mr. Doane at the first tryal, and it so happens, that an appeal is claimed by either party, I must beg your assistance to support Mr. Whipple and Mr. Lowell, the first of which I have engaged, and the last I have this day dispatched an agent to engage.” Bourne to Paine, 17 Nov. 1777, MHi: Paine Papers. The editors are indebted to Mrs. Kellock for this reference. Paine did attend the General Court. See Paine Diary, 4–15 Dec. 1777, and his “Draft of an Address of the General Court to the People—on the Act to restrain the Circulation of the State Currency,” 12–15 Dec. 1777, Paine Papers. Whipple (1743–1813), Harvard 1766, came to Portsmouth from his native Rhode Island and was not related to William Whipple, the New Hampshire delegate to Congress. See Whipple to JA, 26 April 1790, Adams Papers. Bell, Bench and Bar of New Hampshire description begins Charles H. Bell, Bench and Bar of New Hampshire, Boston, 1894. description ends 739–741. In the weeks before the trial he was present at the taking of several depositions in Portsmouth. See notes 8, 10, 12, below.

45. See Doc. I, below; note 11 above.

46. See note 67 below.

47. The three claims appear in DNA Microcopy 162, Case 30, Nos. 3, 4, 5.

48. See Doc. I. As to the rules on interested witnesses, see Gilbert, Evidence description begins Geoffrey Gilbert, Law of Evidence by a Late Learned Judge, London, 1756. description ends 122–134; No. 2.

49. See published notice of monition, dated 14 Nov. 1777, in Portsmouth Freeman’s Journal, 29 Nov. 1777, p. 2, cols. 2–3.

50. JA to AA, 13 Dec. 1777, 2 Adams Family Correspondence description begins Adams Family Correspondence, ed. L.H. Butterfield and others, Cambridge, Mass., 1963– . description ends 369.

51. JA to AA, 15 Dec. 1777, 2 Adams Family Correspondence description begins Adams Family Correspondence, ed. L.H. Butterfield and others, Cambridge, Mass., 1963– . description ends 374. For JA’s conversation on the evenings of 17 and 18 Dec., ranging from politics to law and history, see 2 Stiles, Literary Diary description begins The Literary Diary of Ezra Stiles, D.D., LL.D., President of Yale College, ed. Franklin Bowditch Dexter, N.Y., 1901; 3 vols. description ends 237–238.

52. JA to AA, 15 Dec. 1777, 2 Adams Family Correspondence description begins Adams Family Correspondence, ed. L.H. Butterfield and others, Cambridge, Mass., 1963– . description ends 374. Brackett (1733–1802), Harvard 1752, A.M. 1755, M.D. (Hon.) 1792, after first studying theology, took up medicine and became a successful practitioner at Portsmouth. After the Revolution he was an officer of the Massachusetts and New Hampshire Medical Societies and donated $1500 toward a Harvard professorship in natural history and botany. He was appointed Judge of Admiralty at the beginning of the Revolution and held the post until the creation of the United States District Court in 1789. The sources consulted do not reveal the basis upon which he was given this position. He was active in the patriot cause, serving on the Committee of Safety, but perhaps his education and intellectual attainments were the qualifications which recommended him for the appointment. See Nathaniel Adams, Annals of Portsmouth 321–324 (Portsmouth, 1825); J. Farmer and J. B. Moore, eds., Collections, Historical and Miscellaneous: and Monthly Literary Journal, 2:17–21 (Concord, N.H., 1823); MH:Archives. Brackett may have been JA’s old friend, but he was undoubtedly a current acquaintance of at least 10 of the McClary owners, who, with him, were members of Ezra Stiles’ congregation. See 2 Stiles, Literary Diary description begins The Literary Diary of Ezra Stiles, D.D., LL.D., President of Yale College, ed. Franklin Bowditch Dexter, N.Y., 1901; 3 vols. description ends 171–173; see also note 43 above.

53. There were also apparently at least two witnesses actually present at the trial. See note 18 below. The New Hampshire statute establishing the court required that all papers found aboard ship be filed with the court and permitted witnesses to testify either by deposition or in person. Act of 3 July 1776, 4 Laws of New Hampshire 25, 28, 31 (Bristol, N.H., ed. H. H. Metcalf, 1916).

54. See Interrogatories, with minute of court’s ruling, undated, DNA Microcopy 162, Case 30, No. 84. The “Instructions to Privateers,” contained in a resolve of Congress, dated 3 April 1776, followed Admiralty practice in requiring the submission to the court of interrogatories taken from the master and principal persons aboard the captured vessel. 4 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 253–254. There was no comparable provision in the New Hampshire act, note 53 above.

55. They asserted a third ground, that the goods were forfeit as being of British manufacture, but it was not seriously pressed and seems to have had little weight. See note 2 below.

56. See Decree, New Hampshire Court Maritime, 16 Dec. 1777, PCC No. 44, fols. 263–264.

57. See note 17, text following note 19, below.

58. See note 4 below.

59. The New Hampshire act, note 4below, makes liable to forfeiture vessels “carrying supplies . . . or whose Masters or Supercargoes shall have design of carrying such supplies.” The resolve of Congress in question, note 3 below, deals with “all vessels to whomsoever belonging employed,” in carrying supplies, which might be construed to include only voyages to which the owner was privy.

60. The jury was Perkin Ayers, David Page, Ebenezer Neal, Benjamin Marston, James Neal, Samuel Rand, Joseph Philbrook, Richard Brown, David Lock, Thomas Johnston, Joshua Brackett, and William Simpson. Ayers was appointed foreman by the Court. DNA: RG 267, National Archives Microcopy No. 214, “Appellate Case Files of the Supreme Court of the United States” [hereinafter DNA Microcopy 214], Case 6, fols. 50–51. The relationship of the Joshua Brackett on the jury and Judge Brackett is not known.

61. See Decree, New Hampshire Court Maritime, 16 Dec. 1777, note 56 above.

62. See text and notes 41–43, text and note29, below.

63. See text at notes 26–28 below. The rejection of the interrogatories, note 54 above, is another example of state refusal to accept federal directives.

64. 4 JA, Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends 2–3.

65. 2 Stiles, Literary Diary description begins The Literary Diary of Ezra Stiles, D.D., LL.D., President of Yale College, ed. Franklin Bowditch Dexter, N.Y., 1901; 3 vols. description ends 239.

66. As to JA’s return to Braintree and acceptance of the appointment, see 2 Adams Family Correspondence description begins Adams Family Correspondence, ed. L.H. Butterfield and others, Cambridge, Mass., 1963– . description ends 375 note. For his departure for France, see 2 JA, Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends 269–271. He was retained in at least one other prize case after his return, giving advice to the privateer’s agent, probably during his stay in New-buryport en route to Portsmouth in December (note 50 above). The trial at the Feb. 1778 Superior Court went on without him. See Samuel Tufts to JA, 6 Jan. 1778, 2 Adams Family Correspondence description begins Adams Family Correspondence, ed. L.H. Butterfield and others, Cambridge, Mass., 1963– . description ends 377–378. JA was also forced to forgo an appearance in one of the Kennebec Company’s numerous land cases set for the Feb. term. See John Lowell to AA, 22 Feb. 1778, id. at 393–394;——to AA, 23 Feb. 1778, id. at 394–395. The Company on 14 Jan. 1778 voted to give him a fee of $100 in this cause. 3 Kennebec Purchase Records 132, MeHi.

67. See Decree of New Hampshire Superior Court, Sept. Term. 1778, DNA Microcopy 162, Case 30, No. 165. See also Paine’s notes of both trials in the Paine Law Notes. Paine’s diary shows that the March trial lasted from 11 to 13 March; on the 14th “the jury came in and informed the Court they could not agree. The papers taken from them and the Cause Continued.” The second trial lasted from 2 to 4 September. Paine Diary.

68. Interrogatories to Bourne, Sept. 1778, DNA Microcopy 162, Case 30, No. 158.

69. Depositions of Matthew Wood, 28 Jan. 1778, DNA Microcopy 162, Case 30, Nos. 118, 146.

70. See note 17 below.

71. Depositions covering all of the foregoing points are to be found in DNA Microcopy 162, Case 30, passim,

72. DNA Microcopy 162, Case 30, Nos. 120, 124, 126, 130, 131, 132, 142, 143, 144, 147, 150, 152.

73. DNA Microcopy 162, Case 30, Nos. 125, 154.

74. DNA Microcopy 162, Case 30, Nos. 121, 123, 134, 146, 151, 162.

75. Decree of New Hampshire Superior Court, Sept. Term 1778, note 67 above. See Bourne to Paine, 10 Sept. 1778, Paine Papers.

76. Precept and return, 8 Oct. 1778, PCC No. 44, fol. 273. Costs were to be paid out of the proceeds by virtue of the New Hampshire act of 3 July 1776, 4 Laws of New Hampshire 25, 29.

77. Petition of 14 Sept. 1778, DNA Microcopy, 162, Case 30, No. 166; 12 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 992. See also Claim of Appeal to Congress, New Hampshire Superior Court, Sept. Term 1778, PCC No. 44, fol. 317. According to the June 1780 docket of the Court of Appeals, the case was “lodged” on 28 Nov. 1778. DNA Microcopy 162, Reel 15. Doane’s vessel was called the “Susannah” in the contemporary printed congressional Journal for 9 Oct. 1778. 4 Journals of Congress 586 (Phila., 1779). This seems to have been the first appearance of an understandable copyist’s or printer’s error for “Lusanna.” The spelling “Susannah” was adopted elsewhere in the Journals and in Alexander Dallas’ reports of two later cases involving the vessel (notes 89, 90, below), but “Lusanna” is the form used in virtually all other printed and manuscript sources and is undoubtedly correct. See 4 JA, Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, Mass., 1961; 4 vols. description ends 2.

78. The matter was settled in favor of the jurisdiction in United States v. Peters, 5 Cranch (9 U.S.) description begins William Cranch, Reports of Cases argued and adjudged in the Supreme Court of the United States, Washington, N.Y., and Flatbush, N.Y., 1804–1817; 9 vols. description ends 115 (1809). This decision, which in effect asserted the power of the United States courts over the legislatures of the states, met initial violent resistance in Pennsylvania, but was ultimately accepted. See Charles Warren, The Supreme Court in United States History, 1:374–388 (Boston, 1922). For details of the case, see Davis, “Federal Courts Prior to the Adoption of the Constitution,” 131 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends Appendix xxix—xxxiv (1889); Jameson, “Predecessor of the Supreme Court,” 17–23; The Case of the Sloop Active (Phila., 1809); Richard Peters, The Whole Proceedings in the Case of Olmstead and others v. Rittenhouse’s Executrices (Phila., 1809). For the proceedings in Congress, see DNA Microcopy 162, Case 39.

79. See Commissioners’ order of 5 May 1779, that appellants give appellees notice of hearing on 21 June, DNA Microcopy 162, Case 30; Plea, 21 June 1779, and Replication, Ibid.; Memorial of Penhallow et al., 20 Oct. 1783, 6 Jefferson, Papers, ed. Boyd description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd and others, Princeton, 1950– . description ends , 448, 449. That the insurance payment was a ground of attack may be deduced from the presence in the file of the deposition of Thomas Casey, taken at the request of Penhallow on 24 May 1779 for use in the hearing on 21 June. Casey, who had already given evidence as one of the Lusanna’s passengers (note 8 below), testified that William Cochran, Halifax merchant just returned from London, had told him on 10 Jan. 1779 that the insurance had been paid, and that this was the general opinion in Halifax. DNA Microcopy 162, Case 30.

80. See copy of Commissioners’ order, 26 June 1779, DNA Microcopy 162, Case 30. New Hampshire on 18 Nov. 1779 passed an act in response to the Active resolution which allowed appeals in cases where the property of friendly foreign nationals was involved. 4 Laws of New Hampshire 238. A copy of this statute was duly filed with the Commissioners on 27 Dec. 1779. DNA Microcopy 162, Case 30. According to the certificate of the Clerk of the Court of Appeals, dated 24 Jan. 1784, however, in the minutes of the Commissioners (and presumably in those of the Court of Appeals), “there do not appear to have been any further proceedings in the said Cause untill the Eleventh Day of September 1783.” PCC No. 44, fol. 230.

81. 16 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 61–64. See sources cited in note 6 above, and Hogan, “The Court of Appeals in Cases of Capture,” 33 Oregon L. Rev. description begins Oregon Law Review. description ends 95 (1954). Ubbelohde, Vice Admiralty Courts description begins Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution, Chapel Hill, 1960. description ends 201, states that establishment of the court without a jury was a recognition of the failure of that institution in the state courts of Admiralty. However, the Court of Appeals was a continuation of the old Commissioners, who had sat without a jury. Most of the state courts continued to employ a jury, so that creation of the Court of Appeals was merely a phase in the conflict between federal Admiralty courts and state civil juries which continued into the 19th century.

82. 17 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 459. As to the judges, see Davis, “Federal Courts Prior to the Constitution,” 131 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends Appendix xxvi.

83. Articles of Confederation, Article IX: “The united States in Congress assembled shall have the sole and exclusive right and power of . . . establishing courts for receiving and determining finally appeals in all cases of capture.” The form of the Articles had been agreed on in Congress on 15 Nov. 1777, and on 9 July 1778 they were ratified by eight states, including New Hampshire. By 5 May 1779 they had been ratified by four more states, leaving only Maryland, which could not be persuaded to join until 1 March 1781. See Davis, “Federal Courts Prior to the Constitution,” 131 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends Appendix xii—xiii.

84. As to the owners’ objections, see Memorial of Penhallow et al., 20 Oct. 1783, 6 Jefferson, Papers, ed. Boyd description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd and others, Princeton, 1950– . description ends , 448, 450. They claimed that they had sought to obtain from England more evidence on the question of the insurance being paid, but the short notice had prevented them. Ibid. Counsel at the hearing included “Mr. Rush” (doubtless Jacob, brother of Benjamin) and William Lewis for the appellants, and Jonathan D. Sergeant and Jared Ingersoll for the appellees. James Wilson argued also, presumably for the appellants, since he appeared last, following Ingersoll. It is difficult to determine his position from the very brief minutes, however. Principal reliance seems to have been placed on two authorities which indicate a specialized approach to the questions of prize: R. Lee, Treatise of Captures in War (London, 1759); Emmerich de Vattel, Law of Nations (London, 1760). See Minutes, 13 Sept. 1783, DNA Microcopy 162, Case 30. No authorities appear in Paine’s notes of the proceedings before the New Hampshire Superior Court, note 67 above. The jurisdictional argument was held on 11 Sept. 1783 and the case “put off,” apparently until the 13th, after the decision. See Minutes, 11 Sept. 1783, DNA Microcopy 162, Reel 15.

85. Record and Decree, Court of Appeals in Cases of Capture, 17 Sept. 1783, DNA Microcopy 162, Case 30. Lowell had been appointed to the court on 5 Dec. 1782. 23 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 862; Davis, “Federal Courts Prior to the Constitution,” 131 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends Appendix xxvi.

86. Most of the papers submitted on the petition are in PCC No. 44, fols. 186–324. The selection, being ex parte, is rather one-sided on the merits, including none of the depositions favorable to the claimants. For the Penhallow memorial of 20 Oct. 1783, Sullivan’s letter of 6 Jan. 1784, Jefferson’s report of 8 Jan. 1784, and an account of the proceedings in Congress, see 6 Jefferson, Papers, ed. Boyd description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd and others, Princeton, 1950– . description ends , 447–455. See also Bourne’s memorial, 6 May 1784, supporting his position, which was apparently unneeded. PCC No. 44, fols. 234–235.

87. Alfred A. Doane, The Doane Family 137 (Boston, 1902). Letters of Administration granted to his widow Anna and son Isaiah at Barnstable, 26 Feb. 1783, are in DNA Microcopy 214, Case 6, fols. 95–96.

88. See Statement of the M’Clary Owners 29–30; Charles Storer to JA, Boston, 7 April 1786, Adams Papers. See Doane’s Administrators v. Penhallow, et al., 1 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (1 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 218, 219 (Penna. C.P., 1787). The Massachusetts suit is undoubtedly Isaiah Doane et al. v. Thomas Martin et al., SJC Rec. 1785, fol. 22; Docket Bk. 4, SJC Suffolk, Feb. 1786, C–78, an action of trover brought by the Doane Administrators against George Wentworth and the McClary owners at the Suffolk Inferior Court in June 1784. In April 1785, seven of the owners appeared, and on a plea of not guilty entered by Christopher Gore, obtained a verdict. In the Supreme Judicial Court the appellants discontinued. The disputed decree does not appear in the file. SF 104193. If it was in fact David Sewall who was of counsel for the libelants at Portsmouth in 1777 (note 43 above), it is curious that he did not disqualify himself in the Supreme Judicial Court as did John Lowell in the Court of Appeal (note 85 above), and James Wilson later in the Supreme Court (note 95 below).

89. Doane’s Administrators v. Penhallow et al., 1 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (1 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 218 (Pa. C.P., 1787). Although they did not press the point on this occasion, the McClary owners had finally succeeded in getting convincing evidence of the payment of the insurance. On 17 Feb. 1787 at Portsmouth, John Lane, the “Son” of Lane, Son & Fraser, had given his deposition in perpetuam rei memoriam, testifying that insurance for a loss to an American privateer had been paid to his firm and credited to Doane. Statement of the M’Clary Owners 12–13.

90. See Penhallow et al. v. Doane’s Administrators, 3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (3 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 54, 62–63. A copy of the libel appears in DNA Microcopy 214, Case 6.

91. Act of 8 May 1792, c. 36, §11, 1 Stat. description begins United States Statutes at Large, Boston and Washington, 1850– . description ends 275, 278–279. The same statute also provided for the deposit of the records of the Court of Appeals in Cases of Capture in the office of the clerk of the Supreme Court of the United States, who was authorized to give copies of the records, which were to “have like faith and credit as all other proceedings of the said court.” Id., §11, at 279. See also Act of 2 March 1793, c. 22, §1, 1 Stat. description begins United States Statutes at Large, Boston and Washington, 1850– . description ends 333, providing that where the Judge of a District Court was disqualified, the Supreme Court Justice assigned to the Circuit Court for that District was to sit alone. The McClary partisans later intimated that the first of these statutes, at least, had been passed especially for the Penhallow case. Statement of the M’Clary Owners 31. Their suspicion is perhaps justified by the fact that Shearjashub Bourne, now acting as agent for the Doane interests, was a member of Congress from 1791 to 1795. See note 16 above. The McClary party was also able to effect a statutory change when, on the appeal to the Supreme Court, Justice Cushing demanded a bond in the amount of the full damages. Statement of the M’Clary Owners 56. By the Act of 12 Dec. 1794, c. 3, 1 Stat. description begins United States Statutes at Large, Boston and Washington, 1850– . description ends 404, it was provided that security in appeals need be taken only in the amount of costs.

92. See 3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (3 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 63–64, 108–113. The trial court record as certified to the Supreme Court appears in DNA Microcopy 214, Case 6.

93. See writ of error and return, DNA Microcopy 214, Case 6. The minutes of the Court for the argument of this case from 9 to 16 Feb. 1795 are printed in Surrency, ed., “The Minutes of the Supreme Court of the United States, 1789–1806,” 5 Am. Jour. Legal Hist. description begins American Journal of Legal History. description ends 375–378 (1961).

94. 3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (3 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 64–66. See Surrency, ed., “Minutes of the Supreme Court,” 5 Am. Jour. Legal Hist. description begins American Journal of Legal History. description ends 381, 384.

95. 3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (3 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 79–120. The opinions are also printed as Dallas reported them in A Report of the Opinions of the Judges in the Important Cause of Pen hallow et al. against Doane’s Administrators (Phila., 1795). James Wilson did not participate, presumably because he had been of counsel in the argument before the Court of Appeals, note 84 above. See Surrency, ed., “Minutes of the Supreme Court,” 5 Am. Jour. Legal Hist. description begins American Journal of Legal History. description ends 375–378, 381. Cushing, who had had the same issue before him as a state judge, did not exhibit a similar delicacy, but showed that he was unbiased, by reversing his earlier stand. See note 88 above.

96. Iredell strongly intimated that he would have held that Congress had the power, but he found it unnecessary to reach the question. See 3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (3 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 92–97. Cushing also did not reach the issue, but his feelings on it are less clear. Id. at 117. At least in later Supreme Court practice, the rule was clear that although the judgment of a divided court affirmed the result in the court below and was binding on the parties, it did not constitute a decision of the legal questions involved. See Etting v. Bank of the United States, 11 Wheat. description begins Henry Wheaton, Reports, Supreme Court of the United States, 1816–1827, Phila., 1816–1827; 12 vols. description ends (24 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 59, 78 (1826); The Independence, 20 How. (61 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 255 (1857). Blair’s Circuit Court opinion upholding the power of Congress (3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends 108–113) was thus presumably authoritative on this point, although of doubtful weight.

97. 3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (3 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 89, 120.

98. For example, Statement of the M’Clary Owners, note 43 above. See also, 1 Warren, Supreme Court 123.

99. See “Invoice of Goods from London taken in Brigg Lusanna in Oct. 1777” [Nov. 1795], MHi:Greenough Papers. This account shows a net loss to the Doanes of $1691.71.

100. See Greenough and Doane to John Lane, 18 May 1804, and Lane to Greenough and Doane, 23 July 1804. MHi: Greenough Papers. Missing documents prevent a complete reconstruction of the litigation. For final disposition of the three suits, see Shoolbred v. Greenough Exrs., U.S.C.C.D. Mass. Docket Bk., Oct. 1801, C–16; Shoolbred v. Bourne, id., April 1802, C–7; Shoolbred v. Greenough et al., id., Oct. 1802, C–5; id., June 1803, C–5.

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