Adams’ Copy of the Information and Draft of His Argument: Court of Vice Admiralty, Boston, October 1768–March 1769
Adams’ Copy of the Information and Draft of His Argument1
Court of Vice Admiralty, Boston, October 1768–March 1769
Jonathan Sewal vs. John Hancock
Prov. &c.2 Before the Honorable Robert Auchmuty Esqr.
Be it remembered, that on the 29 day of October in the Ninth Year of the Reign of his Majesty George the Third, Jonathan Sewall Esqr. Advocate General for the said Lord the King, in his proper Person comes and as well on behalf of the said Lord the King, as of the Governor of this Province,3 gives the said Court to understand and be informed, that on the ninth day of May last, a certain Sloop called the Liberty, arrived at the Port of Boston in said Province, from the Islands of Madeira, having on Board, one hundred and twenty seven Pipes of Wine of the Growth of the Madeira’s; of which said Sloop, one Nathaniel Barnard was then Master, and that in the Night Time of the same day the said Nathaniel Barnard with Intent to defraud the said Lord the King of his lawfull Customs, did unlawfully and clandestinely unship and land on shore in Boston aforesaid one hundred of the aforesaid Pipes of Wine4 of the Value of Thirty Pounds Sterling Money of Great Britain, each Pipe, the Duties thereon not having been first paid, or secured to be paid, agreable to Law. And that John Hancock of Boston aforesaid Esqr. was then and there willfully and unlawfully aiding and assisting in unshipping and landing the same one hundred Pipes of Wine, he the said John Hancock, at the same Time well knowing, that the Duties thereon were not paid or secured and that the unshipping and landing the same, as aforesaid, was with Intent to defraud the said Lord the King as aforesaid, and contrary to Law; against the Peace of the said Lord the King and the Form of the Statute in such Case made and provided, whereby and by Force of the same Statute, the said John has forfeited Treble the value of the said Goods, so unshipped and landed as aforesaid, amounting in the whole to the Sum of Nine Thousand Pounds Sterling Money of Great Britain, to be divided, paid and applied in manner following, that is to say, after deducting the Charges of Prosecution, one Third Part thereof to be paid into the Hands of the Collector of his Majesty’s Customs for the said Port of Boston, for the Use of his Majesty, his Heirs and Successors, one Third Part to the Governor of said Province, and the other Third Part to him that informs for the same.
Whereupon as this is a matter properly within the Jurisdiction of this Honorable Court, the said Advocate General prays the Advisement of the said Court in the Premisses, and that the said John Hancock may be attached and held to answer to this Information, and may by a Decree of this honourable Court be adjudged to pay the aforesaid Sum of Nine Thousand Pounds to be applied to the uses aforesaid.
Jon. Sewall Advocate for the King
Octr. 29, 1768. Filed and allowed and ordered that the Register of this Court or his Deputy issue out a Warrant for the Marshall of this Court or his Deputy to arrest the Body of the said John Hancock and him keep in safe Custody so that he have him at a Court of Vice Admiralty to be holden at Boston on the Seventh day of November next at Nine of Clock before noon and that he take Bail for Three Thousand Pounds Sterling money of G. Britain.
Robert Auchmuty Judge &c.
Upon what Statute is this Libel founded? Is it on 4 G. 3, C. 15, §37.5 Be it enacted, &c. “if any Goods or Merchandizes whatsoever, liable to the Payment of Duties in any British Colony or Plantation in America, by this or any other Act of Parliament shall be loaden on Board any Ship or Vessel outward bound, or shall be unshipped or landed from any ship or Vessell inward bound, before the respective Duties due thereon are paid, agreable to Law; or if any prohibited Goods whatsoever shall be imported into, or exported out of, any of the said Colonies or Plantations contrary to the true Intent and meaning of this or any other Act of Parliament; every Person who shall be assisting, or otherwise concerned, Either in the Loading outwards, or in the Unshipping or landing Inwards, such Goods, or to whose Hands the same shall knowingly come after the Loading or unshipping thereof, shall for each and every offence forfeit treble the Value of such Goods, to be estimated and computed according to the best Price that each respective Commodity bears at the Place where such offence was committed; and all the Boats, Horses, Cattle, and other Carriages whatsoever, made Use of, in the Loading, Landing, removing, Carriage or Conveyance of any of the aforesaid Goods, shall also be forfeited and lost, and [shall and] may be seized and prosecuted, by any officer of his Majestys Customs, as hereinafter mentioned.”6
There is a Clause similar, in most respects to this in 8. Ann, C. 7, §17.7 “And for preventing the Frauds, which may be practised in unshipping to be landed any Pepper, Raisins, Mace, Cinnamon, Cloves, Nutmegs, Snuff, or any other Sort of Goods whatsoever, subject to the Payment of Duties without paying the same as also to hinder the Importation of any Sort of prohibited Goods into Great Britain, Be it further enacted by the Authority aforesaid, that if any Pepper, Raisins, Mace, Cinnamon, Cloves, Nutmegs, Snuff, or any other Sort of Goods whatsoever, liable to the Payment of Duties, shall be unshipped, with Intention to be laid on Land (customs and other Duties, not being first paid or secured) or if any prohibited Goods whatsoever, shall be imported into any Part of Great Britain, then not only the said uncustomed and prohibited Goods, shall be forfeited and lost, but also the Persons who shall be assisting, or otherwise concerned in the unshipping the said prohibited and uncustomed Goods, or to whose Hands the same shall knowingly come, after the unshipping thereof, shall forfeit Treble the value thereof, together with the Vessells and Boats, and all the Horses, and other Cattle and Carriages whatsoever, made use of in the Landing, removing, Carriage, or Conveyance of any of the aforesaid Goods,” &c.8
Madeira Wines are Goods and Merchandises, liable to the Payment of Duties in this British Colony or Plantation.9 Admitting it proved that a Quantity of such Wines were unshipped and landed, from the sloop Liberty inward bound, before the Duties due upon it, were paid, agreable to Law. What shall be the Construction of the Words “assisting or otherwise concerned,” in the Unshipping or Landing inwards. The Labourers, the Porters, and Sailors, who manage the Tacles and with their own Hands, hoist out the Pipes, are no doubt, concerned, and the Master who oversees and gives orders, is no doubt assisting. But is the owner Either concerned or assisting in it, if he does not know of it. He may be asleep in his Bed, and not so much as know or dream that any Body is unshipping and landing his Wines. Is he then concerned or assisting? Can it be proved that Captain Barnard was concerned? Can it be proved that Captn. Marshall was? What then? Can it be proved that Captn. Marshall asked Leave of Mr. Hancock? Can it be proved that Mr. Hancock knew of this Frolick? If he neither consented to it, nor knew of it, how can he be lyable to the Penalty?10
I must beg the Indulgence of the Court, while I consider the Character of this Act of Parliament. There is a great Variety in the Characters of Laws as well as Men. A benign and beneficial Law is to receive a liberal and benign Construction. A rigorous and severe Law is to receive a strict and severe Construction. And the more penal it is the more severe must the Construction of it be, and the more tenderly must it be carried into Execution. It will not be impertinent therefore to shew in some Detail the Circumstances, that render this Law the most rigid and severe, or in other Words the most poenal of almost any Law in the whole British Pandect.
The Degree of severity in any Poenal Law is to be determined only by the Proportion between the Crime and the Punishment. Treason is justly punished with death because it is an attempt to overthrow the whole Frame of the Government, and the Government can never be overturned without the slaughter of many Hundreds of Lives and the Ruin of many Thousands of Fortunes. If a Man will murder his Fellow subject it seems but equall that he should loose his own Life. But in this Case what is the Crime? Landing a few Casks of Wine. Admitting the Crown to have the clearest Right to the Duties it is but unjustly taking away a small sum of Money from the Crown, and one would think that the forfeiture of £100 would be an equal Punishment for withholding £100 in Duties.11 But surely the Forfeiture of an whole Cargo of Wines worth Ten Thousand Pounds, for withholding one hundred Pounds in Duties would be a great Disproportion between the Crime and Punishment. To carry it one step further, and subject the ship, as well as Cargo to Confiscation, but above all to subject the Master to £1000,12 and every Person concerned to a forfeiture of threble value, is such a stretch of security as renders this Act more Penal, than any Statute vs. Rape, Robbery, Murder or Treason.
But among the Groupe of Hardships which attend this Statute, the first that ought always to be mentioned, and that ought never to be forgotten is
1. That it was made without our Consent. My Clyent Mr. Hancock never consented to it. He never voted for it himself, and he never voted for any Man to make such a Law for him. In this Respect therefore the greatest Consolation of an Englishman, suffering under any Law, is torn from him, I mean the Reflection, that it is a Law of his own Making, a Law that he sees the Necessity of for the Public. Indeed the Consent of the subject to all Laws, is so clearly necessary that no Man has yet been found hardy enough to deny it. And The Patrons of these Acts allow that Consent is necessary, they only contend for a Consent by Construction, by Interpretation, a virtual Consent.13 But this is only deluding Men with Shadows instead of Substances. Construction has made Treasons where the Law has made none. Constructions, in short and arbitrary Distinctions, made in short only for so many by Words,14 so many Cries to deceive a Mob have always been the Instruments of arbitrary Power, the means of lulling and ensnaring Men into their own Servitude. For whenever we leave Principles and clear positive Laws, and wander after Constructions, one Construction or Consequence is piled up upon another untill we get at an immense distance from Fact and Truth and Nature, lost in the wild Regions of Imagination and Possibility, where arbitrary Power sitts upon her brazen Throne and governs with an iron Scepter. It is an Hardship therefore, scarcely to be endured that such a poenal Statute should be made to govern a Man and his Property, without his actual Consent and only upon such a wild Chimaera as a virtual and constructive Consent.
But there are greater Proofs of the Severity of this statute, yet behind.
2. The Legislative Authority by which it was made is not only grievous, but the Executive Courts15 by which it is to be carried into Effect is another. In the 41st section of this Act 4 G. 3, c. 15.16 we find that “All the Forfeitures and Penalties inflicted by this or any other Act [or Acts] of Parliament, relating to the Trade and Revenues of the said British Colonies or Plantations in America, which shall be incurred there, shall and may be prosecuted, sued for, and recovered, in any Court of Record,17 or in any Court of Admiralty, in the said Colonies or Plantations where such offence shall be committed, or in any Court of Vice Admiralty, which may or shall be appointed over all America, (which Court of Admiralty or Vice Admiralty, are hereby respectively authorized and required to proceed, hear, and determine the same), at the Election of the Informer or Prosecutor.” Thus, these extraordinary Penalties and Forfeitures, are to be heard and try’d,—how? Not by a Jury, not by the Law of the Land, [but] by the civil Law and a Single Judge. Unlike the ancient Barons who unâ Voce responderunt, Nolumus Leges Angliae mutari,18 The Barons of modern Times have answered that they are willing, that the Laws of England should be changed, at least with Regard to all America, in the most tender Point, the most fundamental Principle. And this Hardship is the more severe as we see in the same Page of the Statute and the very preceeding section §40, “That all Penalties and Forfeitures, herein before mentioned, which shall be incurred in Great Britain, shall [and may] be prosecuted, sued for and recovered in any of his Majestys Courts of Record in Westminster or in the Court of Exchequer in Scotland respectively.”19
Here is the Contrast that stares us in the Face! The Parliament in one Clause guarding the People of the Realm, and securing to them the Benefit of a Tryal by the Law of the Land, and by the next Clause, depriving all Americans of that Priviledge. What shall we say to this Distinction? Is there not in this Clause, a Brand of Infamy, of Degradation, and Disgrace, fixed upon every American? Is he not degraded below the Rank of an Englishman? Is it not directly, a Repeal of Magna Charta, as far as America is concerned. It is not att all surprising that the Tryals of Forfeiture and Penalties are confined to the Courts of Record at Westminster, in England. The Wonder only is that they are not confined to Courts of common Law here.
The People of England are attached to Magna Charta.20 By the 29th Chapter of that Statute, “Nullus liber Homo capiatur, vel imprisonetur, aut disseisietur de libero tenemento [suo], vel libertatibus, vel liberis Consuetudinibus [suis], aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus nec super eum mittemus, nisi per legale Indicium Parium Suorum vel per Legem Terrae.”21 This 29, Chap, of Magna Charta, has for many Centuries been esteemed by Englishmen, as one of the noblest Monuments, one of the firmest Bulwarks of their Liberties—and We know very well the Feelings and Reflections of Englishmen whenever this Chapter has been infringed upon even in Parliament. One Proof of them has been given us by Lord Coke, in his Exposition of this Chapter.22 2. Inst. 51. “Against this ancient and fundamental Law, and in the Face thereof I find an Act of Parliament made, that as well Justices of Assize as Justices of Peace without any finding or presentment of 12 Men, upon a bare Information for the King before them made, should have full Power and Authority by their Discretions,” &c.23
Lord Coke after mentioning the Repeal of this Statute and the Fate of Empson and Dudley, concludes with a Reflection, which if properly attended to might be sufficient even to make a Parliament tremble.24 “The ill success of this Statute and the fearfull End of these 2 oppressors, should deter others from committing the like, and should admonish Parliaments, that instead of this ordinary and precious Tryal Per Legem Terrae, they bring not in absolute and partial Tryals by Discretion.”25
These are the Reflections of an Englishman, upon a Statute which gave to Justices of Assize, and Peace, the Tryal of Penalties and Forfeitures, which by the 29. C[hapter] of Magna Charta ought to be tryed by Jury. The Statute 4 G. 3. takes from Mr. Hancock this precious Tryal Per Legem Terrae, and gives it to a single Judge.26 However respectable the Judge may be, it is however an Hardship and severity, which distinguishes my Clyent from the rest of Englishmen, and renders this Statute, extremely poenal.27
I have mentioned this Particular, not merely to shew the Hardship of this Statute and Prosecution, and that my Client is therefore in a favourable Case,28 but for another Purpose, vizt. to shew the Nature of the Evidence, that is required in this Case. We are here to be tryed by a Court of civil not of common Law, we are therefore to be tryed by the Rules of Evidence that we find in the civil Law, not by those that We find in the common Law. We are to be tryed, both Fact and Law is to be tryed by a single Judge, not by a Jury. We therefore claim it as a Right, that Witnesses not Presumptions nor Circumstances are to be the Evidence.
We are to enquire what is the Evidence required by the civil Law, <in Criminal Cases> in order to convict a Person of a Crime and to Subject him to a Penalty. New Inst. civil Law. Page 316.29 2. “The Number of Witnesses ought to be two at the least to make a full Proof, and these must be free from all Exceptions, Either as to their Persons or their Depositions. For the Testimony of a single Witness is of no Validity, tho the Person is of a great Character,” &c.30 “For one Witness may mistake or lie, and be corrupted, and yet be consistent with himself, and so remain undiscovered; whereas two or three Witnesses may more easily be found in a Conspiracy by a prudent Judge if they are separately examined; and tho many Criminals would escape and many might loose their Right for Want of two Witnesses, yet it would be a lesser Evil than to trust so much Power to the Mistakes or Malice of one Person.”
Dig. Lib. 22. Tit. 5. §12. De numero Testium. “Ubi numerus testium non adjicitur, etiam duo sufficient. Pluralis enim elocutio duorum numero contenta est.”31
Codicis Lib. 4. Tit. 20. §9, §1. “Simili modo sanximus, ut unius testimonium nemo Iudicum, in quacunque causa facile patiatur admitti. Et nunc manifeste sanximus, ut unius omnino testis responsio non audiatur, etiamsi praeclarae Curiae honore prefulgeat.”32 Vide Note 32. “Unus testis, nullus testis. Unius Testimonium non admittitur. Vox Unius, Vox nullius est.”33 In this Respect the civil Law conforms to the divine Law. Deut. 19. 15. “One Witness shall not rise up against a Man for any Iniquity, or for any Sin, in any sin that he sinneth: at the Mouth of two Witnesses, or 3, shall the matter be established.”34
But in Hancock’s Case, if there were 2 or ten such Witnesses as Mezle,35 they would not amount to Proof sufficient for Condemnation. Because there are against him, the strongest legal Exceptions, 1. His Condition. New Inst. civ. Law. 315. “Indigent Persons and Beggars ought to be suspected, because they are easily corrupted.”36 Dig. 22. 5. 3. “Testium Fides diligenter examinanda est: Ideoque in Persona eorum exploranda, erunt in primis, Conditio, cujusque; utrum quis decurio an Plebeius sit; et an honestae et inculpatae vitae, an vero notatus quis, et reprehensibilis. An locuples vel egens sit ut lucri causa quid facile admittat: vel an inimicus ei sit, adversus quem testimonium fert; vel amicus ei sit, pro quo testimonium dat:” &c.37 Vide Note 22. “In Testibus hac sunt inquiranda, Conditio, Vita, Facultates, Inimicitiae, vel amicitiae, suspicio denique &c.”38
Calv. Lex. Testes.“Callistratus, testium Fidem, Conditionem, Vitam anteactum, Fortunam, Aestimationem, atque dignitatem diligenter exquirendam esse praecipit.”39
Fortescue De Laudibus Legum. C. 31. page 38. “It will not always happen that they [i.e. perjured witnesses] are or can be known by the Party, Defendant in the Cause, in order to call in Question their Life and Conversation, that as Persons of a profligate Character, they might be cross examined; upon which account their Evidence might be set aside.”40
The general Character of this Witness cant be known. We can have no Citation to the Mountains of Switzerland, or the Fens of Holland or the Plains of Cape Francois,41 for Witnesses to his general Character for Truth. We ought to know therefore all that can be known of his History from his own Mouth. Life and Conversation, Fides, Vitam anteactam, inculpatae et honestae Vitae are Expressions, that denote more than a general Character for Truth or falshood.
The civil Law seems to lean to the side of Mercy, as much as the common Law. Wood Inst. 310. “In Criminal Cases the Proofs ought to be as clear as the Sun at Noon day:”42
Domat. V. 1. Page 13. Preliminary Book. Tit. 1. Sect. 2. N. 15.43 “The Laws which restrain our natural Liberty, such as those that forbid any Thing that is not in itself unlawfull or which derogate in any other manner from the general Law, the Laws which inflict Punishments for Crimes and offences, or Penalties in civil matters; those which prescribe certain Formalities; the Laws which appear to have any Hardship in them” &c.44 “are to be interpreted in such a manner, as not to be applied beyond what is clearly expressed in the Law,” &c.45 “We ought to give to such Laws all the Temperament of Equity and Humanity, that they are capable of.” Notae: “Interpretatione Legum Poenae molliendae sunt, potius quam asperendae. In Poenalibus Causis benignius interpretandum est. In levioribus Causis proniores at Lenitatem Judices esse debent, in gravioribus Poenis, Severitatem Legum, cum aliquo temperamento benignitatio subsequi.”46
Codicis. Lib. 4. Tit. 19. §.25. De Judiciis criminalibus. “Sciant cuncti accusatores eam se rem deferre in publicam notionem debere quae munita sit idoneis Testibus, vel instructa apertissimis documentis vel indiciis ad probationem indubitatis et luce clarioribus expedita.”47 Vide Notes also.48
But disregarding order, for the present let me record the Controversy We had last Week, Concerning the Rules of Law which were to govern this Case.49 The Court of Admiralty is originally a Civil Law Court. Jurisdiction of a Crime, is given to it in this Case by Act of Parliament. The Question is whether it is to proceed by the civil Law? If it is, We have a Right to examine the Witnesses whole past Life, and his Character at large. A Son cannot be examined against the Father nor the Father against the Son, and other Relations are disqualified to be Witnesses. All Persons under Twenty are disqualified, under 20 years of age I mean, from being Witnesses. Servants and dependants are not to be Witnesses. Nay. Mr. Fitch says we must adopt the Method of Torture, among the rest.
On the Contrary I argue, that if We are to be governed by the Rules of the common Law We ought to adopt it as a whole and summon a Jury and be tryed by Magna Charta. Every Examination of Witnesses ought to be in open Court, in Presence of the Parties, Face to Face. And there ought to be regular Adjournments from one Time to another.
What other Hypothesis shall we assume? Shall We say that We are to be governed by some Rules of the common Law and some Rules of the civil Law, that the Judge at his Discretion shall choose out of each system such Rules as please him, and discard the rest. If so Misera Servitus est. Examinations of witnesses upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them. Shall We suffer under the odious Rules of the civil Law, and receive no advantage from the beneficial Rules of it? This, instead of favouring the Accused, would be favouring the Accuser, which is against the Maxims of both Laws.
Interlocutory Decree50
Advocate General vs. John Hancock, Esqr.
The Substance of the Point before the Court, is, whether a Witness shall be examined to charge another Witness in the Cause with a particular infamous Crime.
It is urged by the Advocates offering the first mentioned Witness, first, that this is a civil Law Court, and secondly, by that Law such Evidence is admissible. To the last Point several authorities were cited, but the principal one from the Digest 22. 5. 2. 3.51
To which it was answered by the Advocates on the other side that this is not a civil Law Court in such Cases as the present. And that the Authorities produced were not to be understood in the Sense contended for by the Respondents Advocates. In support of the last, the Notes under the aforesaid 3 Law in the Digest were read and relyed on.52 It was also urged, that admitting the civil Law to be as contended for, the argument would prove too much, because it would exclude relations in certain Degrees, intimate Friends, Persons under the age of Fourteen &c. from testifying.
I take the Sense of the Authority first mentioned, to be no more than a general description of what are good objections against persons being admitted to their Oaths as Witnesses without describing the mode whereby such disqualifications are to be ascertained. If said Authority is not so construed, it certainly clashes with the notes, which clearly relate not to the Admission of Witnesses, but the Credit or Refutation of their Evidence. The reason why proof by record ought to be exhibited against a Witness, when charged with a Crime, appears clear from the Question put in the Note, under D. 22. Tit. 3. “Quis enim, si sufficiat accusasse, innocens fiet?”53 Such a reading reconciles the Text and comment in the Digest to each other, and the former to Reason. I am therefore of opinion the motion is not well supported, even by the Rules of the civil Law. In addition to which, when I consider the process now in question, is founded on an Act of parliament, originally intended to be guided by the Rules of the common Law,54 that the Practice of the Court has ever been to hear and determine similar cases, according to those rules, the manifest and great inconveniences which must accrue, by the Admission of such evidence, I am clearly of opinion, the Question put is improper, and therefore Decree the same to be withdrawn.55
Robt. Auchmuty Judge &c.
Obsirve, The Expressions. The Substance of a Point. A Point has not Parts, therefore is indivisible, therefore to talk of the substance of it, is not the neatest or most elegant. But to omit Criticism, let me make a few Observations upon the <Reasoning> substance of the Decree.
1. The Advocates for the Crown, did not argue that our Argument would exclude Relations, Friends, Persons under 14. &c. But the Advocates for the Respondent, insisted that all those Rules of the civil Law ought to be adopted, because they were beneficial to the subject the Respondent. We had no difficulty at all in Admitting the Consequence as far as it is here mentioned. So far from it that we desired it, because Mr. Hancock’s Relations, Friends, and many Persons under age have been examined in this Case. It is true Mr. Fitch did argue that our Principle would justify the Introduction of Torture and this he thought was proving too much, and this was well observed by Mr. Fitch and was the best argument I have heard in the Case.56
2. The Judge has totally mistaken the “Sense” of the Authority, for instead of being a Description of Objections against Persons being admitted to their Oaths it is wholly confined to those who are already sworn. It is Testium Fides examinanda est,57 not Personarum Fides, and as a Witness in English implies the Competency of the Person, so Testis in Latin implies the same, and a Person cannot be Testis, untill he is admitted, to tell what he knows, i.e. to give Evidence.58
1. In JA’s hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184. Apparently a copy from an earlier state now lost. See text at note 70 above. Portions of the MS were printed in 457–463, and 2 215. For the dating of the MS, see text following note 70 above.
2. An abbreviated form for the usual caption, probably “Province of Massachusetts Bay / Court of Vice Admiralty.”
3. The usual form of the qui tam information used to prosecute these divided forfeitures. See notes 28, 56, 62, above. The name derives from the full Latin phrase, “qui tam pro Domino Rege quam pro seipso” (who [sues] as well for our Lord the King as for himself). See 2 , c. 26, §17. Sewall omitted the usual last phrase “for himself,” but it is clear from the form of the information as a whole that he was suing as informer. See form used in New York, 272–274.
4. According to testimony, note 5 above, twenty-five pipes were entered at the Custom House. It is not known whether the two additional pipes alleged here are the correct figure or represent counsel’s margin for error.
5. The American Act of 1764, 4 Geo. 3, c. 15, §37. Quotation marks supplied.
6. That is, in a court of law or of Admiralty, the proceeds to be divided equally among the Crown, the governor of the province in which the case was tried, and the informer. 4 Geo. 3, c. 15, §§41, 42.
7. 8 Anne, c. 7, §17 (1709). Quotation marks supplied.
8. The remainder of the section provides that half of the penalties and forfeitures levied go to the Crown and the other half to the informer, “to be recovered by bill, plaint, or information, wherein no essoin, protection, or wager of law shall be allowed.” The latter clause, which in other similar acts had been held to limit the jurisdiction to the common law, and the seeming limitation on the face of the act to imports into England, indicate that this statute could not have been the basis of the action. See 500.
9. A duty of £7 per tun was levied on Madeira wine by the American Act of 1764, 4 Geo. 3, c. 15, §1; 176–177. According to Webster’s New Collegiate Dictionary (Springfield, Mass., 1949), a tun was equal to two pipes, or about 250 gallons.
10. This represents the general common-law rule on the liability of a principal for the misdemeanor of an agent, at least in the absence of the principal’s negligence. See William L. Clark and William L. Marshall, Law of Crimes §8.12 (Chicago, 6th edn., M. F. Wingersky, 1958). As to Captains Barnard and Marshall, see text at notes 4–6 above. In Attorney General v. Woodmass, Bunbury 247, 145 662 (Exch. 1727), an information on 8 Anne, c. 7, §17, note 7 above, “for being assisting or otherwise concerned in unshipping five hundred gallons of brandy,” some of the brandy “run” was ultimately “carried to the defendant’s house; but it did not appear the defendant was present either at the time of running or removing the goods to his house; but he afterwards paid the cobblemen for running these goods.” The court held that “this was a being concerned within the statute, if the jury were of opinion that the defendant employed the persons to run the goods on his account, and paid them for that purpose.” Verdict for the Crown. See also Attorney General v. Flower, Bunbury 227, 145 656 (Exch. 1726); Attorney General v. Lake, Bunbury 277, 145 673 (Exch. 1729). William Bunbury’s Reports of Cases in the Court of Exchequer was first published at London in 1755. 1 322.
12. Thus in MS. The penalty on a master permitting dutiable goods to be loaded aboard his vessel for unlawful entry in the Plantations was actually £100. 6 Geo. 2, c.13, §7 (1733), made applicable by 4 Geo. 3, c. 15, §7 (1764). It would seem that the master would also be liable under the broader provisions of 4 Geo. 3, c. 15, §37, note 5 above. Sewall did proceed against the master of the Liberty. See note 26 above.
13. The doctrine of virtual representation, by which a member of Parliament was held to represent the interests of the Empire as a whole, rather than those of his constituents, was used by the English to justify their own system of limited franchise and rotten boroughs, as well as colonial nonrepresentation. See 212–215.
14. Thus in MS. Compare 2 215 note. The garbled text here suggests that JA was copying from notes or an earlier draft.
15. That is, the courts of justice, which “execute” the laws, as distinguished from legislative “courts,” such as the General Court, which make them. See No. 44, note 20.
16. American Act of 1764, 4 Geo. 3, c. 15, §41. Opening quotation mark supplied. The text following, through note 27, was used by JA with some revision in his “Instructions of the Town of Boston to their Representatives,” 15 May 1769, 3 508–509, 16 285–289, abbreviated in “A Journal of the Times,” 14 May 1769, 99. The MS, in JA’s hand, is in the Boston Public Library. The instructions were published in full in the Boston Gazette, 15 May 1769, p. 1, cols. 1–3. See text at notes 47, 74, above. Important variations between the text of the argument and that of the “Instructions” are noted below, but a detailed comparison must await publication of the “Instructions” in Series III of The Adams Papers. Digital edition: “Instructions,” 15 May 1769, now available in Papers of John Adams, volume 1.
17. In quoting the statute in his “Instructions” JA omitted all clauses dealing with the concurrent jurisdiction at common law.
18. Translated in JA’s “Instructions” as “who answered with one voice, ’We will not that the laws of England be changed.’” This famous line is the reply of the barons to the request of the bishops that they be permitted to follow the canon law by certifying children born before marriage as legitimate. Statute of Merton, 20 Hen. 3, c. 9 (1234). The phrase appears in slightly different form in the text of the statute itself, but JA followed Coke’s rendition of Bracton’s version. 2 *98. See 2 218. In Coke’s text, the active voice of the infinitive “mutare” (to change) is used. JA’s probably inadvertent use of the passive, “mutari,” is carried over into his translation, changing the barons’ denial of a request for legislation into a legislative principle.
19. American Act of 1764, 4 Geo. 3, c. 15, §40.
20. This and the preceding three sentences were omitted in the “Instructions,” and the two paragraphs were telescoped into a single sentence, “Is it not with respect to us a Repeal of the 29th Chapter of Magna Charta?” 3 509.
21. Translated by JA in his “Instructions,” 15 May 1769, as “No freeman shall be taken or imprisoned or disseised of his freehold or liberties or free customs or outlawed or exiled or any otherwise destroyed, nor will we pass upon him nor condemn him, but by lawful judgment of his peers or the law of the land.” 3 509. The text is that of Magna Carta, 9 Hen. 3, c. 29 (1225), quoted from the version given by 2 *45. Quotation marks and omitted words supplied. It is this text, approved by Henry III at his majority, rather than that granted by John at Runnymede in 1215, which actually has the force of law today. See 23. The differences between the two documents are slight, however, and are not material in this section. See William S. McKechnie, Magna Carta 181–183, 436, 445–446 (Glasgow, 1905). For changes in translation brought about by modern scholarship, see id. at 436–448; 1 59–63.
22. This and the preceding sentence are rendered in the “Instructions” as “Englishmen are inviolably attached to the important right expressed in this clause, which for many centuries has been the noblest monument and firmest bulwark of their liberties. One proof of this attachment, given us by a great sage of the law, we think proper to mention, not for your information, but as the best expression of the sense of your constituents.” 3 509.
23. 2 * 51. Quotation marks supplied. Coke’s sentence continues, “to heare and determine all offenses, and contempts committed, or done by any person, or persons against the forme, ordinance, and effect of any statute made, and not repealed, &c.” The Act, 11 Hen. 7, c. 3 (1494), excepted treason, murder, and felony from its provisions. See 4 *40–41. In his “Instructions” JA quoted Coke as saying “by their discretions to hear and try men for penalties and forfeitures.” 3 509.
24. In the “Instructions” the last phrase is “to discourage such attacks upon fundamental principles.” 3 509.
25. 2 *51. 11 Hen. 7, c. 3, was repealed by 1 Hen. 8, c. 6 (1509), which, according to Coke, recited that under the earlier act, “it was manifestly known, that many sinister, and crafty, feigned and forged informations, had been pursued against divers of the kings subjects to their great damage, and wrongful vexation.” 2 *51. This is a reference to the doings of Sir Richard Empson and Edmund Dudley, councilors of Henry VII employed in the collection of taxes and forfeitures due the Crown, who were purported to have abused the power of proceeding by information under 11 Hen. 7, c. 3. On the accession of Henry VIII they were thrown into the Tower, accused of various oppressive tactics; while there, they were charged with and convicted of having compassed the death of the new king, and were executed on these grounds in 1510. 1 283–288; see under both names. JA used this episode in his Clarendon Letters of 1766, attacking the use of the Admiralty courts in the Stamp Act. See note 76 above.
26. Coke does not deal with the problem under the clause “Iudicium Parium suorum,” or judgment of peers, the traditional source of the right to jury trial. He seems to view that clause merely as a confirmation of the nobility’s right to a trial by their peers. 2 *48–50. Instead, his “reflections” are a gloss on the clause “per Legem Terrae,” to which he gives the meaning “due process of law.” His criticism of 11 Hen. 7, c. 3, seems to be based more on the fact that no indictment was required, than on the absence of a trial jury. id. at 50–51; but see 4 *41. Modern scholars are agreed that in granting a trial by judgment of peers, Magna Carta granted not the modern trial by jury but rather the right to trial in a court of peers instead of in the King’s court. There is disagreement as to whether “the law of the land” means due process, or simply the usual medieval modes of trial—battle, ordeal, and compurgation. See 1 59–63; 2 id. at 214–215. Whatever the correct interpretation, Parliament does not seem to have regarded summary trial as a deprivation of due process. No general measure was ever enacted again, but by the middle of the 18th century certain customs violations and at least 200 other specific offenses against statutory regulation, punishable corporally or by fines ranging up to £500, were to be tried by one or more justices of the peace sitting without a jury. Frankfurter and Corcoran, “Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury,” 39 917, 922–934 (1926); 277, 280. A similar range of offenses was within the jurisdiction of Massachusetts justices, but there was a theoretical right to a jury through an appeal procedure much hedged in with restrictive security requirements. 39 938–942. Moreover, in England the proceeding by information, rather than indictment, was a common one for many misdemeanors even when trial was to a jury. See note 62 above.
27. In the “Instructions” the preceding paragraph is summed up in the sentence, “Such are the feelings and reflections of an Englishman upon a statute not unlike the statute now under consideration, and upon courts and judges not unlike the courts and judges of admiralty in America.” 3 509.
28. This may be another garbled passage showing that JA copied from notes. See text at note 70 above. Or it could mean that Hancock’s “Case” was to be considered “favourable” in the sense that the hardships were extenuating circumstances which entitled him to favorable consideration. See .
29. 316. Quotation marks supplied.
30. JA has here omitted the following passage: “unless he swears of his own Fact, and where there are other Circumstances to concur or corroborate, or unless he is a publick Officer; as a Notary, &c. deposing by Vertue of his Office. This is founded upon very good reason.” 316.
31. Justinian, Digest, bk. 22, tit. 5, §12. Quotation marks supplied. For translation see 5 235: “Where the number of witnesses is not specified by law, two are sufficient, for the term ’several’ is embraced in the number two.”
32. Justinian, Codex, bk. 4, tit. 20, §9, §1. Quotation marks supplied. See 13 37: “In like manner, we have ordered that no judge shall in any case readily accept the testimony of only one witness; and now We plainly order that the evidence of only one witness shall not be taken, even though he should be distinguished by senatorial rank.”
33. The edition used by JA has not been found. For this passage, see 2 Corpus Juris Civilis 176, note 18 (Antwerp, 1726).
34. Deuteronomy 19:15. Quotation marks supplied. The reference appears at the page in Wood’s , cited in note 26 above.
36. 315.
37. Justinian, Digest, bk. 22, tit. 5, §3. Quotation marks supplied. See 5 232–233:
“The integrity of witnesses should be carefully investigated, and in consideration of their personal characteristics, attention should be, in the first place, paid to their rank; as to whether the witness is a Decurion or a plebeian; whether his life is honorable and without blame, or whether he has been branded with infamy and is liable to censure; whether he is rich or poor, lest he may readily swear falsely for the purpose of gain; whether he is an enemy to him against whom he testifies, or whether he is a friend to him in whose favor he gives his evidence.” The concluding sentence of the above translation, which was omitted by JA, is, in the Latin, “Nam si careat suspicione testimonium, vel propter personam, a qua fertur, quod honesta sit: vel propter causam, quod neque lucri neque gratiae, neque inimicitiae causa sit: admittendus est.”
38. See 1 Corpus Juris Civilis 436 note 38 (Antwerp, 1726).
39. Johannes Calvinus, Lexicon Juridicum Juris Caesarei Simul et Canonici 905, tit. “Testis,” (Cologne, 1622). Quotation marks supplied. The editors’ translation: “Callistratus decreed that the good faith, condition, previous life, lot, reputation, and rank of witnesses should be diligently inquired of.”
40. Sir John Fortescue, De Laudibus Legum Angliae 38 (London, 1741). Quotation marks supplied. Fortescue was actually pointing to this as a defect in civil-law procedure. His De Laudibus, written about 1468, and first published in the 16th century, was intended to demonstrate the great superiority of the English to the Roman law. See 2 569–570.
42. 310. Quotation marks supplied.
43. , 1:13–14 (London, transl. Strahan, 1722). Quotation marks supplied.
44. JA here omitted “those which permit Disinheriting and others the like.”
45. JA here omitted: “to any consequences to which the Laws do not extend. And on the contrary . . .”
46. The preceding three sentences are in a note at the end of the passage from , cited, note 43 above. They are quoted from the following sections of Justinian, Digest: bk. 48, tit. 19, §42; bk. 50, tit. 17, §155(2); bk. 48, tit. 19, §11. See 11 124: “By the interpretation of the laws, penalties should rather be mitigated than increased in severity.” Id. at 312: “In penal cases, the most benevolent construction should be adopted.” Id. at 115: “It is clear that in cases of minor importance, judges should be inclined to lenity; and where heavier penalties are involved, while they must comply with the stern requirements of the laws, they should temper them with some degree of indulgence.”
47. Justinian, Codex, bk. 4, tit. 19, §25. See 13 36: “All accusers are hereby notified that they cannot bring a criminal charge for anything which has been established by reliable witnesses; or clearly proved by documentary evidence; or shown to be true by undoubted testimony clearer than light.” A better translation of the first clause might be “charge unless a thing has been established.” This section is cited in the margin of the passage in Wood’s , cited, note 42 above.
48. The notes in 2 Corpus Juris Civilis 175, notes 24–26 (Antwerp, 1726), reiterate the sense of the text quoted at note 47 above.
49. According to “A Journal of the Times,” on 24 Feb. “The advocates for Mr. Hancock, offered evidence to prove that a witness, who had been before examined for the proponent, was a fugitive from his native country, to avoid the punishment due to a very heinous crime. The advocates for the crown objected to this evidence as improper, urging that by common law, nothing could be proved against a witness but his general character for falsehood. The advocates for the respondent replied, that the Court of Admiralty proceeded according to the civil law, whereby a witnesses whole life and conversation ought to be examined. And they insisted upon knowing by what law their client was to be tried.” 68. The passage continues with a close paraphrase of the text here, adding a few phrases from JA’s earlier notes on the civil law. The English common-law rule at this time was basically that asserted by the Crown. A witness’ general moral character and character for truth were admissible to impeach, but evidence of specific misconduct could be admitted only in the form of a record of criminal conviction. See 597; 2 288, 296; 157–158. The distinction was doubtless due to the fact that those guilty of felony and other crimes involving falsehood were altogether excluded as witnesses. Id. at 142–145.
51. Though partly overwritten, this refers to bk. 22, tit. 5, §§2, 3. For §2, see 5 232: “The rank, the integrity, the manners and the gravity of witnesses must be taken into consideration, and therefore those who make contradictory statements, or who hesitate while giving their evidence, should not be heard.” “Manners” (Latin “mores”) might be better translated as “morals.” The first part of §3 appears in text at note 37 above. The section goes on to provide that the judge should determine credibility; that all available kinds of proof should be investigated; that the judge should examine the witnesses if possible, allowing them their costs; and that witnesses should not be summoned from afar unless it is the custom of the region. The passage most relevant here would seem to be the following:
“It is proved by the Lex Julian relating to violence, that those shall not be permitted to give testimony against a defendant who has [i.e. have] been freed by him or his father; or who have not yet arrived at puberty, or anyone who has been condemned for a public crime, and has not been restored to his former condition, or who is in chains, or in prison, or has hired himself out to fight with wild beasts; or any woman who openly prostitutes herself, or has already done so; or anyone who has been sentenced or convicted of having received money for giving or witholding testimony.” Id. at 233–234.
53. 1 Corpus Juris Civilis 437 note 1, a note to the latter part of Justinian, Digest, bk. 22, tit. 5, §3. Editors’ translation: “Who, however, will be found innocent, if it be sufficient to have been accused?” The preceding sentence is, in translation, “In the refutation of a witness, it is not enough that he be accused of a crime; it is necessary that he be convicted.” See also, 1 Corpus Juris Civilis 436, note 73, an annotation to the passage quoted in note 51 above concerning those who are in chains or in prison, which states that such persons are not rejected as witnesses unless they have been convicted, seemingly because chains and prison alone are not a sign of infamy.
54. Compare “A Journal of the Times,” 24 Feb. 1769: “If therefore the court is to adopt the common law, because the jurisdiction was created by Act of Parliament; it ought to adopt it as a system.” 68.
55. For a somewhat similar argument, see Stokes, Constitution of the British Colonies 361. In “A Journal of the Times,” 2 March 1769, Auchmuty’s point that the evidence would be inadmissible even under the civil law was not mentioned and the decision was said to have turned upon “the usage of the court, and the inconveniencies that would attend the introduction of the rules of the civil law, in cases of this nature.” The writer asked upon what usage this unique case could be based, and went on to point out that the court had not been deterred by inconvenience in using interrogatories, in sitting without regular adjournments, in issuing compulsory citations to witnesses, and in ordering arrest and high bail for immediate appearance. After noting that only the judge’s discretion determined which law would apply, the account continued, “It is reported that the advocates for Mr. Hancock, had no solicitude about the question they put to the witness, but they thought that if the court would proceed by such rules of the civil law as pleased the officers of the revenue, they had a right to such rules of the same law, as made in favour of Mr. Hancock.” 72.
56. This point was turned to good account in the entry in “A Journal of the Times,” note 55 above. As a consequence of the judge’s discretion to determine the applicable law, “if a case should happen that should require it, or if the C[ommissio]n[e]rs should give their mandate to the court, supposing them hereafter to get a judge fit for the purpose, why might he not gently put parties or witnesses to the torture, and extend them on the rack? Donec eorum rumpuntur nervi, et venae in sanguinis fluenta prorumpunt.” 72.
58. Both the abrupt termination of his argument at this point without a formal conclusion and the state of the manuscript suggest that JA intended to continue this paper.