Oliver Whipple’s Minutes of the Argument1
New Hampshire Court Maritime, Portsmouth, 16 December 1777
John Penhallow and others, agents for the Privateer McClary vs. Brig Lusannar
The Libel sets forth three Facts as Causes of Condemnation viz.
1st. That the Property of Brig and Cargo belonged to some Inhabitant or Inhabitants of great Britain.
2d. That at the Time of the Capture She was Carrying Supplies to the Enemy.
3d. That the Property on Board was British Manufacture.2
NB They then indeavour to introduce a fourth Cause of Condemnation viz. that the Brig made a Voyage to Gibralter with King’s Stores in the Year 1776, tho’ this Cause is not set forth in the Libel.3
There are two Resolves of Congress principally insisted on viz. the one that makes british property confiscate, the other, that makes all Vessels, their Cargoes &c. forfeited carrying Supplies to the Fleets and Armies acting against America, which said Resolves are adopted in our maritime Law.4
The Agents Council open the Cause in such manner, as to make Mr. Bourne the ostensible Owner of the Brig and Cargo, and as he has not Claimed the Property, They draw a false Consequence, that Coll. Doane has no foundation or Right of Claim to the Property.
The Council for the Agents first proceed to prove the Property in Mr. Bourne, and that he is an Inhabitant of Great Britain. To this end they Produce the Register in his Name.5 The Goods being marked in his Name.6 His Departure from the Country at the Commencement of the Despute.
Mr. Crosby’s Letter of Recommendation to the Commanding Ingineer at Hallif ax.9 Two Letters of Credit from Mr. Lane, and Watson and Company to Mr. Butler at Hallifax in Favour of Mr. Bourne for about 7000.10
Also the Deposition of one Casey.11
The Deposition of Mrs. Casey.12
The Deposition of Mr. Lewis the Mate.13
And also produce a Letter from Mr. Bourne to Mr. Cockran at Hallifax.14
Answered by Mr. J. Lowell.15
By giving a general History of the Voyage and the whole transaction thereof, and showing the Property of the Brig and Cargo to be in Coll. Doane and that the altering the Register was to cover the Property from Seizure.
The marking the Goods SB was for the same Purpose.
His Departure from the Country was not criminal at that Time, as he went for the Purposes of Business for his Father as agent and with Intent to git his property out of England. That the Memorial ought not to be considered as Mr. Bourne’s Sentiments, but as his Council’s who framed it, to answer the Purpose. That there is nothing in the Journal (saving the Memorial) that looks unfriendly, but it shewes his Intentions were to return to his Family and Friends again.
That Crosby’s Letter (whatever were Mr. Bourne’s Intentions) cou’d not opperate to defeat Coll. Doane of his Property, nor cou’d any Acts of Mr. Bourne as a Factor, defeat him of his Property. That Mr. Lane’s and Watson’s Letters were disigned that Mr. Bourne should draw the Money at Hallifax, as an equivalent for Coll. Doane’s Property in England in their hands, which Mr. Bourne did not think proper to risque in Specie or Goods across the Water, and disigned to have sent the Money, when received in some secret Way to Coll. Doane.
The Depositions were mostly favourable to the Defense of the Claimants, and were well observed on.
NB Mr. Adams, after recapitulating the main Points of the Evidence, as stated by Mr. Lowell, divided the Cause into the following Heads viz.16
1st. Whether it was not legal for any man to git his Property from an Enemy’s Country?
2d. Whether taking the Register at Hallifax and another in London, in Mr. Bourne’s Name to secure and cover the Property from Seizure, alterd the Property, and made it liable to Forfeiture?
Answer’d by Mr. Adams.
1st. That a man having property in an Enemy’s Country, had an undoubted Right to transport that Property to any Place, where there was an appearant Probability, of geting it, or the Proceeds thereof to his Home, that he had a Right to chuse the Mode or Manner of securing his Property and transporting it Home, unless the States had by Law pointed out the Channel in which it was to be done (which is not the Case) and relyed much on the Justice and Equity of permitting it to be done, and concluded that it was the general Sentiment of the Congress to favour the Design.
2d. He observed, that Registers do not always identify the Property, and that taking out a Register and swearing to it was no Method known in Law to convey Property, if it was, it wou’d be in the Power of every man who had the Care of a Vessel, to deprive the rightful Owner of her by taking out a Register; he relyed on the Necessity of altering apparently the Property of a Vessel &c., where liable to be seized, that it was Justifiable upon the Principles of Commerce, and sanctified by almost universal Custom of Persons intrusted with Property abroad.17
3d. Whether the Voyage She made from London to Gibralter freighting Kings Stores, in the Year 1776, was a Cause of Forfeiture?
NB The Council for the Agents indeavoured to introduce the Evidence of the Brig’s haveing made a Voyage to Gibralter with King’s Stores tho’ not set forth in the Libel as a Cause of Condemnation;18 This was objected to by the Councel for the Claimants; That no Evidence cou’d be given of any Matter that was Cause of Condemnation unless set forth in the Libel, that every Cause of Condemnation in the Law, ou[gh]t to be shown to the Court, before Evidence given, and that if they might be allowed to give Evidence of Facts that did not appear in the Libel, it wou’d be unne[ce]ssary to have any Libel at all, and that they cou’d not go out of the Libel for Matter of Condemnation, but must abide by their Allegations.19 The Councel for the Agents likened it, to an Action of Trespass, where if the Evidence of the Fact was before the Time laid in the Declaration, it was good, if the Evidence related to any Part of the Trespass.
NB This is by no Means a similar Case, for Evidence never was given of any Trespass unless specially set forth in the Declaration, but the Judges gave it in their Favour, but wrong.
He  observed that from the ninteenth of April 1775 none but general Gage and the Troops under his Command, in Conjunction with the Fleet, were looked on as Enemies, nor did the Congress till some Time in the Year 1776 even look on great Britain, or Ireland or any foreign Garrison as their Enemies in a General Sense,20 and insisted there was no Law or Resolution of Congress that prohibited a Voyage to Gibralter, the Troops and Fleet not coming within the Meaning of the Law ie, Enemies acting against the united States of America. That the Sense of the Law and the Word Enemy was wholly limitted to the Fleets and Armies at that Time here, and on the Coast of America and that there is Yet no Law forbiding the Supplying a foreign Garrison of the King of Great Britain;21 for if the word Enemy was to be construed in a general Sense to all the Dominions of the King of great Britain, it wou’d be absurd to say, That this Vessel, or any other, That was transporting Goods, or Provisions from one Place to another within those Dominions, was carrying Supplies to the Enemy; because the Enemy were supplied with the Goods &c. previous to their Imbarkation; That the Superiour Court of the Massachusetts Bay and all other Courts, which had decided on the Question were of a Similar sentiment.22
4th. Whether the Brig being bound from London to Hallifax was a Cause of Forfeiture?
That all Vessels in London must be cleared out for some British Ports,23 that Hallifax was the nighest Port to these States, that is open, except Garrison’d Towns, that there was every Probability if he got his Goods and Property at Hallifax, he might git them for the Doanes from thence in some secret Way, that there was no Law or Resolve, prohibiting the bringing home british Property, or directing the Mode, (as observed before) it is therefore left to the Choice of the Party; nor is there any Law that makes a Vessel forfeited for carrying Freight or anything else to Hallifax, provided it be for the Inhabitants, and not for the express Use of the Fleet and army; That not a single Article of the Cargo was for the Fleet and army, is express in the Depositions of Casey, Wife and Lewis,24 and that there was no apparent Intention, Design or Mark of supplying the Fleet or Army, unless the Captors cou’d search out the Hart of Col. Doane and Mr. Bourne; and added that all Vessels or Transports bringing supplies or Stores to the Fleet and Army, did not clear out at the Custom House at London or elsewhere, but only had orders and a Certificate to deliver their Stores to the King’s Commissary at the Place of Destination.25
5th. Whether the Property Claimed, and consisting of English Goods, and insured was a Cause of forfeiture?
He observ’d that there is no Law now in being against bringing Home british Manufactures, and that the Goods being made in England was no Cause of Forfeiture. The Act of Association, went no further than to forbid Importation of british Goods, but did not declare them forfeited, but were only to be Stored or reshipped as the Importer chose, and all the Penalty was to stigmatize the Importer, “as an Enemy to Liberty.”26
That the Declaration of Independancy, repeated all former Resolves of the Association;27 that Independancy, or the Declaration thereof, did not respect british Manufactures, and there is no Expression therein, that prohibits the Importing british Goods, or that makes them liable to Forfeiture as Such; That it was the general Sentiment of the Congress that <
Property> Goods in England, tho’ british, belonging to Americans, might be brought here without a Liability of Forfeiture, and that it was for the general good of the Country.28 Mr. Adams then Instanced a Case at Carolina, where Goods were condemned at a maritime Court, because brought from Statia, and were british Manufactury, but on appeal to Congress, the Decree was reversed, it being no Cause of Forfeiture.29
Mr. Adams observed that the Court of the Massachusetts, agreed in Sentiment with the Congress on that head; for they had given in many Instances, Licenses to People to go to Hallifax, and to others that were there who were desirous to come into these States, to bring their Property consisting of British Manufactures, into these States, without the least Idea of Forfeiture,30 which if it was not permitted, wou’d opperate as an inconceivable Injury to many Good Subjects of these States.
He observed,31 That Insurance was only a Wager, that it did by no Means pass the Property, and that every one wou’d act imprudently who did not insure his Property even against Common Accidints; that this was never known to be a Cause of Forfeiture of a Friends Goods, because insured by an Enemy, perhaps they were not insured to half the Value, and then the assured must loose the Remainder. That this Insurance was made for a Cover, that they might not suspect any ill Designs; had it not been done, they on the other Side the Water, wou’d have suspected a Design that the Brig was destined to some Port in America, and he added that if the rankest Tory existing was bringing his Goods to America with a View to settle here, the same wou’d not be subject to Forfeiture.32
Mr. Adams spoke largely to each of the foregoing Questions, added many incidental Observations, and concluded, if the Property in Despute had belonged to a Southern State Instead of the Massachusetts, the Owners wou’d Send forth armed Ships to make Reprisals.
1. In Whipple’s hand. Paine Law Notes. The notes of Whipple, a Portsmouth lawyer retained by Bourne, were apparently prepared for Paine, who entered the case as counsel after JA’s departure for France. See note 44 above.
3. See text at notes 18, 19, below.
8. See extracts from Bourne’s journal, DNA Microcopy 162, Case 30, No. 60:
“Jany. 30th 1777. This day having all the papers compleated from Mr. Smith my Attorney, carried them to the Court of Chancery to be enrolled, they were accordingly enrolled. After which Mr. Lane and I went to the honorable Jona. Sewall Esqr. to sollicit his favor in order to introduce me to Lord Norths Secretary (Mr. Robinson), but as Mr. Sewall had no acquaintance with the Gentleman I was obliged to apply to Governor Hutchinson for his favor on the topick who readily gave me a letter of Introduction to Mr. Robinson and afterwards wrote to Mr. Robinson to assist me with my memorial by presenting it to Lord North the head of the Treasury.”
10. See Letter of Credit, Lane, Son & Fraser, to Bourne, 21 Aug. 1777, for £3000, and Letter of Credit in Bourne’s favor, Watson & Rashleigh to John Butler, 21 Aug. 1777, for £4000. DNA Microcopy 162, Case 30, Nos. 33, 34.
15. Compare JA’s notes of Lowell’s argument, text at notes 20–44 above.
16. Compare JA’s own summary of the heads of his argument at note 45 above. Whipple has made two heads out of JA’s first point. JA’s points 2–4 are herein points 3–5. JA’s fifth point is an unheaded final paragraph. See note 31 below.
17. There was testimony at the trial on appeal in the Superior Court that this was a common practice. See Depositions of Jonathan Mason and Nathaniel Libbee, 3 March 1778; John Parrot, Joseph Pierpoint, and Richard Salter, 31 Aug. 1778. DNA Microcopy 162, Case 30, Nos. 143, 144, 147, 139, 131, 138. Compare Statement of the M’Clary Owners 22. For a JA case under the British customs acts in which Doane seems to have attempted to alter a vessel’s papers, see No. 52.
22. It has not been possible to identify with certainty such a case in the Records of the Massachusetts Superior Court of Judicature or Supreme Judicial Court.
23. That is, vessels clearing for America. Trade with Europe was not prohibited. See 17 Geo. 3, c. 41, §§4, 5 (1777). JA probably referred to the statute 16 Geo. 3. c. 5, §§1, 3 (1776), which prohibited all trade with the rebellious colonies, and provided, with exceptions not material here, that all vessels “found trading in any port or place of the said colonies, or going to trade, or coming from trading, in any such port or place,” should be forfeit to the Crown and liable to be taken as prize.
24. See notes 8, 10, 12, above. At the trial in Superior Court in Sept. 1778 there were numerous depositions to the effect that Messrs. Cochran, Bourne’s principal correspondents at Halifax, not only did not supply the royal forces, but were sympathetic to the American cause, supplying American prisoners whenever possible. See text and note 72 above.
25. The statute 16 Geo. 3, c. 5. §2 (1776) provided that a vessel in His Majesty’s service or carrying supplies to Crown forces or the inhabitants of a garrison town should not be subject to seizure as prize under id., §§1, 3 (note 23 above), if it produced a license from the Admiralty, a military or naval commander, or a loyal governor, specifying the voyage and the cargo.
26. See note 16 above. JA was a signer of the Association and was present at the debates on it. 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 137–140, 147–149, 155.
27. That is, the grievances upon which the Association was based, which were largely the Acts of Parliament raising a revenue and extending the Admiralty jurisdiction, and the so-called Coercive Acts of 1774. These measures were among the far longer list of grievances contained in the Declaration, with the difference that the blame was shifted from Parliament and the Ministry to George III himself. Compare the Association, 1 Jefferson, Papers, ed. Boyd description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd and others, Princeton, 1950– . description ends , 149–154, with the Declaration of Independence, id. at 429–433.
28. JA presumably meant that such a sentiment was expressed, or at least assumed, in the debates on the Association in 1774 (note 26 above), although he was also an active participant in the debates on the Declaration of Independence in June and July 1776. 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 396–398; 1 Jefferson, Papers, ed. Boyd description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd and others, Princeton, 1950– . description ends , 309–315. No record of discussion of this point has been found in either debate, however. That JA correctly stated the position of Congress at this period is suggested by the fact that on 27 March 1781 that body passed a resolution forbidding the practice of bringing property from Great Britain on safe conduct. 19 JCC description begins Worthington C. Ford and others, eds., Journals of the ContinentalCongress, 1774–1789, Washington, 1904–1937; 34 vols. description ends 314–316. The editors are indebted to Mrs. Kellock for this reference.
29. Probably Fowkes v. The Roseanna,DNA Microcopy 162, Case 20 (Commrs. of App. 1777), an appeal upon which JA may have sat. See note 8 above. The Roseanna, owned by John Brown of Rhode Island through his Nantucket agents, had been seized at Cape Fear, allegedly carrying goods the property of British subjects. The libel further alleged that cargo had been loaded at Nantucket ostensibly for non-British islands, but that this had been deception and that she had imported a cargo into the Bahamas to aid the enemy. Further, she had brought a cargo of British-manufactured goods from the Bahamas into North Carolina, contrary to the resolves of Congress. In a trial of the master’s claim without a jury, the Roseanna was adjudged forfeit on the latter two grounds. The master appealed to Congress. No record of the result appears in the files, but according to other sources the decree of the court below was reversed. 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 xxxviii.
30. For examples of licenses to come from Nova Scotia granted by the General Court, see Resolves of 28 Oct. 1776, 19 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 624; 29 Oct. 1776, id. at 629. A resolve of 23 April 1777 forbade the departure of persons “to Great Britain or elsewhere” under prior resolves, perhaps to prevent one Ephraim Deane from going to Nova Scotia to get his family under a resolve of 19 April 1777. Id, at 896, 905. But subsequent petitions were granted, both permitting Nova Scotians to settle in Massachusetts, and permitting Massachusetts inhabitants to go to Nova Scotia for their effects. Resolves of 1 Oct. 1777, 20 id. at 146; 15 Oct. 1777, id. at 167–168; 17 Feb. 1778, id. at 295; 9 March 1778, id. at 322; 3 Oct. 1778, id. at 502. At the trial in the New Hampshire Superior Court in Sept. 1778, the deposition of one who had gone for this purpose was offered. See Deposition of Joseph Pierpoint, 31 Aug. 1778, DNA Microcopy 162, Case 30, No. 131.