The courts of Vice Admiralty in the colonies had been established by the Crown in 1697 primarily to provide a forum for enforcement of the Acts of Trade and Navigation, with which England sought to control colonial commerce for the benefit of the Mother Country. The courts were, of course, open for the trial of ordinary civil maritime cases, but in Massachusetts it took the earliest royal Admiralty judges nearly twenty years to overcome hostility aroused by the establishment, and unfamiliarity with the new process. Thus, although by 1720 the Admiralty had a sizable civil business, there had developed a solidly established tradition of common-law competence in maritime matters, which kept the court from realizing its full potential. The court was further hampered by the common-law power to issue writs of prohibition, with which any respondent in a case that did not actually arise on the seas, or concern the wages and discipline of seamen, could stay the Admiralty proceedings. By this means, virtually all contracts for maritime services (other than seamen’s wages), as well as torts occurring within a harbor, could be excluded from the jurisdiction.1
Thus, even in its busiest years, the Massachusetts Vice Admiralty Court had had few cases that did not involve seamen, or other matters traditionally within its competence. The bulk of maritime torts and contracts were sued upon at common law. After 1764, when Parliament expanded and strengthened Admiralty jurisdiction of violations of the Acts of Trade, the court’s business declined to fifteen or twenty cases a year. Most of these were civil in nature, but the passage of the Townshend duties in 1767 and the heightened enforcement activities of the new American Board of Customs Commissioners beginning in 1768, which sharply increased the number of revenue cases in the court, reduced its civil business to about six or eight cases a year, and, after 1770, to one or two.2
As far as can be determined, Adams had no case of any kind in the Court of Vice Admiralty before 1768.3 This may well be explained by the fact that the business of the court was so slight and the cases so un-remunerative that there was no room for another advocate at its bar. He had originally brought Doane v. Gage, his first known Admiralty case, at common law, but decided to proceed in Admiralty, apparently for convenience. Probably because of the decline in such business he seems never to have had another civil Admiralty case.
This dispute over the ownership of a whale taken at sea shows that the civil side of the Vice Admiralty Court was not altogether defunct in the 1760’s, but the case is chiefly of interest for its wealth of detail on the techniques of whaling. The whale fishery was a major industry in 18th-century Massachusetts. Vessels from Nantucket, Dartmouth, Cape Cod, and Boston had by 1775 ranged the Atlantic from Baffin Bay and Greenland in the north, eastward to the Azores and the coast of Africa, and south to Brazil and the Falkland Islands, producing an annual catch worth about £200,000.4
In 1765 nearly a hundred Massachusetts vessels fished the Gulf of St. Lawrence and the Straits of Belle Isle, which lie between Newfoundland and Labrador. In the fleet were a number of Cape Cod whalers, including ships captained by Joseph Doane of Chatham and Lot Gage of Harwich.5 On 21 June the hunting was good in the Straits; a sizable number of boats from several vessels were in the water, and numerous whales had been sighted. One whale in particular had succeeded in eluding capture, until Asa Nickerson, commanding one of Doane’s boats, drove his “iron” into it. The whale sounded with the line. At some point thereafter, Gage himself struck the same whale and Nickerson’s line came free. Gage was able to maintain control over the whale, supervise the kill, and bring its marketable parts aboard ship.
At once a dispute arose between Doane and Gage as to the ownership of the whale. There was much uncertainty as to whether Nickerson had struck it at all, and if he had, whether he had still been “fast” at the time that Gage had struck. The Cape Codders all took sides, some on the basis of long-standing political and social rivalries, others because of financial interest engendered by the flexible and temporary sharing of labor and profit among vessels known as “mateship.”6 Gage remained steadfast in the claim that the whale was entirely his, however, and some time after the return of the fleet to home waters Doane brought action against him.
Suit was commenced at law in the Inferior Court at Barnstable, where an entry in John Adams’ docket dated June 1766 records that he was “spoke to,” that is, asked to serve as counsel.7 Numerous depositions were taken, but the case was not disposed of at this stage. It is possible that the common-law court declined to hear a matter so obviously within the Admiralty jurisdiction, but it seems more likely that some practical consideration, such as the desire to avoid a biased local jury, led Adams to withdraw the action at Barnstable in order to proceed in Admiralty.8 In any event, on 6 January 1768 the case of “Joseph Doane v. Lot Gage, rela. a Whale” was entered by Adams on the docket of the Vice Admiralty Court.9 James Otis represented the Gage interests, which apparently included his father, Col. James Otis of Barnstable.10 Adams and Otis agreed that depositions taken for the trial in Barnstable might be used in Admiralty and that further depositions might be taken, but the case was continued from time to time.11 Finally, Robert Treat Paine, once briefly a whaler himself,12 joined Otis on Gage’s side, and on 22 April 1769 the parties agreed to submit the matter to arbitrators.13 Since no notation to this effect appears in the Vice Admiralty Minute Book, it may be that the agreement was to discontinue and to arrange the arbitration privately rather than under a rule of court.
After a day of hearings in June and a further postponement in August, proceedings before the arbitrators commenced in earnest on 19 October 1769 at Brackett’s tavern, with Adams arguing first.14 The chief legal issue was the nature of the right of possession in whales, a question of vital concern to the whaling industry throughout the 19th century and to most first-year law students today. At some point before the hearing Adams had made a series of extracts of civil-law authorities standing for the proposition that property in wild animals is acquired when they are taken into possession, but lost if the animals escape from possession and regain their natural liberty. While civil-law authorities have always been of great weight at common law in such questions, the fact that this was an Admiralty proceeding probably accounts for the exclusive reliance upon them here.15
In the first portion of the arbitration proceedings Adams concentrated on the application of these principles to the practices of the whale fishery. His witnesses to the customary law of whaling testified that a boat was considered in possession of a whale when it was “fast” to it, that is, when its iron was still seated in the whale and the line was still in the boat’s control.
A second boat striking the whale while the first was fast was entitled to a one-eighth share if it had come in at a “call” from the first; if the fast boat had not requested assistance the second striker took nothing, even though the whale ultimately cast the first iron.16 If the whale became “loose” without having been struck a second time, the first striker lost possession and all claim to the whale, and a subsequent striker had full possession. Except for the grant of an eighth to the second striker, these rules are similar to the code epitomized by Melville in Moby Dick and observed by British and American courts dealing with the Greenland whale fishery then and for a century afterward. Adams’ further argument that the adoption of custom strengthened rules designed to prevent disputes has also been followed in the courts.17
The real problems in the case were factual. Adams’ evidence tended to show that Nickerson had been fast to the whale when Gage struck, thus giving Doane possession under the rules to which earlier witnesses had testified. Adams also introduced testimony which struck at the validity of Gage’s evidence, suggesting physical impossibilities, inconsistencies, and dubious motives. Paine followed Adams, first attacking Doane’s case, then putting in evidence to support Gage’s theory that he had struck only after Nickerson had lost the whale and was hauling in his iron. When the evidence was in, Otis summed up the testimony presented.
Altogether there had been at least 74 witnesses—34 for Doane and 40 for Gage. Whether in deference to the civil-law procedure followed in the High Court of Admiralty in England, or for convenience in a hearing four years after the event, all of the testimony seems to have been in written form—either depositions or answers to interrogatories, which each side had served upon witnesses whose depositions showed their testimony to be crucial.18 Adams and Paine read these documents, or paraphrases of relevant portions of them, before the arbitrators, embellishing the reading with comments and arguments when appropriate. According to Paine’s diary, six days were required for the hearing. Finally on 27 October he noted simply, “Whale case finished.”19 No record of the result has been found.
The materials that follow include Adams’ notes of authorities (Document I) and his extensive minutes of the arbitration proceedings (Document II), as well as copies of the interrogatories prepared by both sides (Documents III, IV). The latter are of particular interest, because they show the crucial factual issues upon which counsel concentrated at the last stages of a long litigation. On the basis of these documents the reader may be able to form his own judgment as to who was entitled to the whale.
1. For a summary of the development of the jurisdiction in Massachusetts and of the common-law restrictions, see Wroth, “The Massachusetts Vice Admiralty Court,” in George A. Billias, ed., Law and Authority in Colonial America: Selected Essays (Barre, Mass., in press).
2. Complete figures on the court are not available for the years 1745–1765, because virtually all of its records for that period were destroyed in the Stamp Act riot, 1765. See Wroth, “The Massachusetts Vice Admiralty Court,” 6 Am. Jour. Legal Hist. description begins American Journal of Legal History. description ends 263–264 (1962). The business of the court, 1765–1772, can be estimated from the Minute Book for those years in the Office of the Clerk of the Supreme Judicial Court for Suffolk County, Boston. See p. 102–104, notes 17, 22, 24 below. Development of the court’s revenue jurisdiction is summarized at p. 98–106 below.
3. JA first mentioned being at the Admiralty Court in a diary entry of 30 Jan. 1768, which was after the commencement of Doane v. Gage there. 1 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 337–338; see text at note 9 below.
4. See Edouard Stackpole, The Sea-Hunters 30–65 (Phila., 1953); Alexander Starbuck, History of the American Whale Fishery 19–77 (Waltham, Mass., 1878). For the market value, see Thomas Jefferson, “Memoranda,” Oct. 1788, 14 Jefferson, Papers, ed. Boyd description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd and others, Princeton, 1950– . description ends , 226–234; Thomas Jefferson, “Report to the House on the Cod and Whale Fisheries,” 1 Feb. 1791, in H.R. Misc. Doc. No. 32, 42d Cong., 2d sess. (1872); Obed Macy, The History of Nantucket 70–72, 233 (Boston, 1835). JA was also concerned with the American whaling industry during his diplomatic career. See 3 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 83–84.
5. See Boston News-Letter, 8 Aug. 1765, p. 3, col. 1. Doane (c. 1720–1778) held a variety of public offices in Chatham, kept a public house there “of great benefit to the fishery,” and found time to participate in the annual whaling voyages. See Alfred A. Doane, The Doane Family 136 (Boston, 1902); 17 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 552; 18 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 453, 675. He was also involved in two later JA cases, No. 57 and No. 58. Lot Gage was an incorporator of the Second Parish of Harwich in 1746. Frederick Freeman, The History of Cape Cod, 2:513 (Boston, 1869).
7. JA, Docket, June 1764–Oct. 1767. Adams Papers, Microfilms, Reel No. 182. The entry, which is nearly illegible, may read “Jonathan” Doane, but if that reading is correct, it is probably an error on JA’s part. That the case was first entered in the Barnstable court is established by the agreement regarding depositions from that court in note 11 below.
8. Other whale cases in the Superior Court files are inconclusive on the jurisdictional point. Dyer description begins J. Dyer, Ascuns Nouel Cases. Les Reports des divers select Matters et Resolutions, London, 1585. description ends v. Doane, SF 144072, SCJ Rec. 1757–1759, fol. 325 (Barnstable, 1758), was an action of trover for a whale allegedly struck by the plaintiff in Cape Cod Harbor and taken up on shore by the defendant, who won the verdict. In Bassett v. Jenkins, SF 144166, SCJ Rec. 1763–1764, fol. 245 (Barnstable, 1764), trover for a whale struck in the St. Lawrence, the defendant prevailed on a motion in arrest of judgment, apparently on a pleading defect unrelated to the jurisdictional question. The problem of location could be avoided in any event by alleging a fictitious venue within the Province, which was done in Bassett v. Jenkins.
9. Vice Adm. Min. Bk., 6 Jan. 1768.
11. The agreement, dating from March 1768, provides “That Each Party shall have Liberty to use the Depositions heretofore taken to Be used in the Inferior Court of Common Pleas at Barnstable and all the Evidences heretofore Taken In Perpetuam Reis Memoriam: and to Take any others that may Be Wanted In the same Manner: and that all such Depositions shall be Considered as having the same Weight as If the Deponants were Dead Gone to Sea &c. and were Regularly taken.” A supplement, dated “In Court,” 15 Dec. 1768, provided that any further depositions thought necessary should be taken before two Justices of the Peace in Barnstable, “whether taken in Perpetuam or in the Common form, the Adverse Party to be notified.” MHi:Waterston Collection. See note 2 below. For a discussion of the statutory rules for taking depositions, see p. xlvii above. The continuances through 28 Nov. 1768 appear in Vice Adm. Min. Bk., 6 Jan., 28 Nov. 1768. Paine notes that in Jan. 1769 the court, sitting to hear the case, adjourned until April. Paine Diary, 23 Jan. 1769.
12. On a voyage to Greenland in 1754. See 12 Sibley-Shipton, Harvard Graduates description begins John Langdon Sibley and Clifford K. Shipton, Biographical Sketches of Graduates of Harvard University, in Cambridge, Massachusetts, Cambridge and Boston, 1873– . description ends 465.
13. Paine Diary, 19 Jan., 22 April 1769.
14. Paine Diary, 20, 21 June, 10 Aug., 19 Oct. 1769. In his own diary under the last date, JA noted, “The morning at Brackett’s upon the Case of the Whale.” 1 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 344. “Brackett’s” was undoubtedly the Cromwell’s Head, an inn on School Street in Boston kept by Joshua Bracket, where such proceedings were commonly held. See Rowe, Letters and Diary description begins Letters and Diary of John Rowe, Boston Merchant, 1759–1762, 1764–1779, ed. Anne Rowe Cunningham, Boston, 1903. description ends 127; Thwing, Crooked and Narrow Streets description begins Annie Haven Thwing, The Crooked and Narrow Streets of the Town of Boston, 1630–1822, Boston, 1920. description ends 109; Drake, History and Antiquities of Boston description begins Samuel G. Drake, The History and Antiquities of Boston, Boston, 1856. description ends 807. JA apparently had the assistance of an unidentified lawyer, whose notes on the case are found with his. See note 1 below.
15. The common-law position on wild animals is typified by Kent, Commentaries description begins James Kent, Commentaries on American Law, N.Y., 1826–1830; 4vols. description ends *348–350. As to the Admiralty as a civil-law jurisdiction, see JA’s argument in No. 46. From the beginning of his legal career he had read extensively in the civil law. See 1 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 44, 55–57, 173–174.
16. The statement in 1 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 344 note, that Doane as first striker would be entitled only to an eighth upon losing the whale is thus erroneous.
17. Melville’s formulation was:
“But though no other nation [except Holland] has ever had any written whaling law, yet the American fishermen have been their own legislators and lawyers in this matter. They have provided a system which for terse comprehensiveness surpasses Justinian’s Pandects and the By-laws of the Chinese Society for the Suppression of Meddling with other People’s Business. . . .
“I. A Fast-Fish belongs to the party fast to it.
“II. A Loose-Fish is fair game for anybody who can soonest catch it.” Herman Melville, Moby Dick (Chapter 88) 393–394 (N.Y., 1950).
See also William Scoresby, An Account of the Arctic Regions, 2:318–328 (Edinburgh, 1820). Compare Aberdeen Arctic Co. v. Sutter, 4 Macq. description begins John F. Macqueen, Reports of Scotch Appeals and Writs of Error ... in the House of Lords, Edinburgh, 1855–1866; 4 vols. description ends 355 (H.L. 1862); Addison v. Row, 3 Paton App. description begins J. Craigie, J. Stewart, and T. Paton, Reports of Cases Decided in the House of Lords, upon Appeal from Scotland, Edinburgh, 1849–1856; 6 vols. description ends 334 (H.L. 1794). Different whaling areas had local customs differing from those of the Greenland fishery, but the courts have applied them on the theory enunciated by JA. See Oliver Wendell Holmes, The Common Law 167–168 (Cambridge, Mass., ed. Mark DeWolfe Howe, 1963), and cases there cited. See also note 6 below.
18. For the English Admiralty practice, see No. 46, notes 35, 63. Depositions were apparently taken both during the common law proceeding and after, under the agreements cited, note 11 above. See notes 7-9 below. The interrogatories were presumably prepared during the pendency of the Admiralty proceeding and were administered to at least one witness some time during 1769. See note 33 below. In the Suffolk files are two fragments in the hand of James Otis, containing questions to be put to various witnesses. These are probably questions submitted by Otis to whoever was taking depositions in the case, to be asked of the deponent. They are set out in note 39 below.
19. Paine Diary, 27 Oct. 1769.