From John Lowell
Boston Augt. 4th: 1777
Mr. Babcock of Newhaven informs me that he wrote you respecting our maritime Laws, and the Application of them to the Case of the Countess of Eglington,1 which John Brown of Providence is endeavouring to bring before Congress; but fearing he had been mistaken in his Recollection of these Laws, and so may have misrepresented them, he has desired me to set the Matter in its true Light, lest the Congress should conceive this Case and some others which may come before them from this State to stand only upon the Footing they are put by the Resolves of Congress, and sustain them when perhaps the Parties concerned may dispute their Determination, or disregard their Orders, which in any Case under present Circumstances, might be of public Detriment: This State passed the first Act for fixing out armed Vessells, before any of the Resolves of Congress, instituted a maritime Court where Causes were to be tried by a Jury, and made the Decree of this Court final;2 some Time after this the Congress passed Resolves about these Matters, and therein say, that Appeals shall be allowed to themselves and in all Cases whatever;3 after this our Court passed a second Act, and having before them these Resolves, determined, whether wisely or not I will not say, that Appeals from the maritime Courts in this State, should be to the Superiour Court, except where Prizes are taken by armed Vessells in the Service of the Continent, in which Case out of Complaisance to the Resolves, they allow an Appeal to Congress;4 By these Rules we proceed and after a Judgment of the superiour Court, Distribution takes Place, and the Prize is commonly shared among Hundreds, most of whom soon become unable to refund; by our first Act where two or more armed commissioned Vessells jointly make a Capture, the Prize is to be divided in Proportion to the Men on Board each Vessell, our Courts suppose the Jury under this Law, are to say what is a joint taking; By our second Act, the Libel and all the Claims filed whether by Owners or Captors are to be given to the Jury, who are to determine what Share or Proportion, if any, of the Prize, each Claimant shall have; our Courts have uniformly determined that, by this Act in Conjunction with the other, the Jury are to determine who are joint Captors, and to give each such Share as under all Circumstances of the Case they merit, having regard to the Aid and Influence of each in the Capture. In the Case of the Countess of Eglington, the Jury determined that the Owners &c. of Brown’s Privateer, should receive one seventh Part of the Prize, and Babcock’s the Residue; Distribution has been made accordingly; It is true an Appeal was claimed to Congress, from the Judgment of the Superiour Court but it was refused, and it is to be noted that Brown had availed himself of our Law, and appealed from the maritime Court to the Superiour Court and there had a Trial. He has since taken the Part adjudged him, whereas if he meant to set aside this Judgment, I conceive he cannot avail himself of it in Part; I need not suggest to you the Inconvenience of bringing into Dispute and Contrast the Authority of our Legislature and Congress. Our Superiour Court have determined that notwithstanding the Resolves of Congress, our Act must operate in this State, and that no Appeal lies but where the Act gives it, the Congress have given Countenance of this Opinion, by frequently recommending to our Legislature to regulate these maritime Affairs; If anything must be done, and I am apprehensive if nothing is done Difficulties may arise, will it not be best to recommend to our Legislature, to make their Acts conform to the Resolves of Congress, or, will it not be still better for Congress to consider whether the carrying appeals from all Parts of the Continent to Philadelphia, will not be unreasonably expensive, burthensome and grievous, and also whether they will probably be determined by any steady Rule, while detached and varying Committees, without fixed Principles to refer to, try these Appeals, and at a Time when all your Hours are, or perhaps ought to be employed on Objects infinitely more important, and will it not be best to appoint some Courts of Appeal with defined Authority, or to give the Superiour Courts in the several States, Jurisdiction in such Cases, till a better Plan can be digested and perfected; I believe Determinations will be generally as expeditious, as just, and as satisfactory, in this as in any other Way. I hope you will excuse this long Letter, and upon Business comparatively so petit, but my Friend Babcock was uneasy lest he had mistated this Matter, and that you might be misled. In this important Day, dear Sir, you will permit me to wish you the full Enjoyment of your Health, and the free and vigorous Exercise of your Powers. My Sphere is small, I am of no Weight in the political Scale, but I am willing to devote all I have, and all I am to the Service of my Country; which I am sensible needs the Exertions of all her Sons, as well to preserve or restore her Virtue as to defend her Liberties. I am with Esteem and Respect your Friend and hble. Servt.,
RC (Adams Papers); docketed: “August 4th 1777.”
1. In Nov. 1776 the brigantine Countess of Eglington on its way from Glasgow to Antigua was chased by the sloop America, Capt. William Dennis, and by the sloop Retaliation, Capt. Isaac Jones. Capt. Dennis overtook the quarry and forced its surrender before Capt. Jones came up. Although the two captains had apparently agreed beforehand to work together and share all prize money equally, Adam Babcock, agent and part owner of the America, doubtful of the meaning of the agreement, saw no reason to question the award made first by a court at Plymouth in Jan. 1777 and then by the Superior Court on the appeal of John Brown, part owner of the Retaliation. As is apparent from what follows, Brown then took the case on appeal to the congress (Naval Docs. Amer. Rev. description begins William Bell Clark, William James Morgan (from vol. 5), and others, eds., Naval Documents of the American Revolution, Washington, 1964-. description ends , 7:639, 888–891, 943, 1024, 1135–1136). The decision of the Superior Court, before which Capt. Jones acted for Brown, is given in same, 8:1002–1003.
2. The act was passed on 1 Nov. 1775, establishing maritime courts in Plymouth, Ipswich, and North Yarmouth (Maine). The relevant sections of the act are 4 and 6–8. The law did not in so many words make the court’s decree final, but no mention is made of the right of appeal (Mass., Province Laws description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, Boston, 1869–1922; 21 vols. description ends , 5:436–441).
3. Passed on 25 Nov. 1775 (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 3:373–375). For an informative statement about the evolution of the congressional appeals procedure into a special court, which may be thought of as a predecessor to the United States Supreme Court, see JA, Legal Papers description begins Legal Papers of John Adams, ed. L. Kinvin Wroth and Hiller B. Zobel, Cambridge, 1965; 3 vols. description ends , 2:352–355, Editorial Note. Adams was made a member of the Standing Committee on Appeals, which grew into a court (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 7:172).
4. The act of 13 April 1776 divided maritime jurisdiction into three districts and named a number of towns in which the judges might hold court, including Boston (Mass., Province Laws description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, Boston, 1869–1922; 21 vols. description ends , 5:474–477).