Vice-Admiralty jurisdiction was established in the American colonies
in 1697[1]; Vice-Admiralty courts were created in Maryland (1694), New York (which included Connecticut and New Jersey) and South Carolina (1697), Pennsylvania (which included Delaware) and Virginia (1698), Massachusetts (1699), New Hampshire (1704), Rhode Island (1716), North Carolina (1729), and Georgia (1754).[2] They were not effective in enforcing trade laws due to bribery of officials, smuggling, salutary neglect on the part of England, and poor appointments. As a result, after the French and Indian War, when tax revenue was needed to cover the debt incurred by the war, England shut down the ten courts and created a single court in Halifax, Nova Scotia. The Crown appointed and sent Dr. William Spry from England to serve as “Judge of the Vice-Admiralty Court of all America.”[3]
Unfortunately, the court’s location prevented it from serving many of the colonies and sometimes forced cases involving New York or Boston merchants to be heard in England. On July 6, 1768 the Crown approved the Vice Admiralty court Act that established three new courts “at proper and convenient places.’ They were in Boston, Philadelphia, and Charleston.[4] “The said Courts to have Jurisdiction within certain Districts to be allotted to them respectively by your Majesty … each of the Judges of the said Courts respectively to be allowed such Salary as your Majesty shall think proper to be paid in the first place out of your Majesty’s money arising from any Penalties and Forfeitures to be levied within the said Colonies.”[5]
A court was considered a branch of the High Court of Admiralty that sat in London.[6] Judges were selected by the Governor from the political leaders of the colony or district, i.e. the Lieutenant Governor, Secretary, Chief Justice, members of the Council, officers of the Royal Navy, and various customs officers; their appointments had to be reviewed by the High Court in London and approved by the Crown.[7]
For the first half of the 18th century, these courts primarily handled disputes, under local jurisdiction, between merchants and sailors. The common issues adjudicated were seamen’s wages, shipbuilding, salvage, insurance, and petty crimes committed at sea.[8] During the French and Indian War their powers were expanded to include international jurisdiction so that they could deal with the war prizes. A prize was an enemy ship that had been captured, taken to a friendly port and put in the custody of the local authorities. The prize agent representing the owner then filed a libel against the ship and her cargo in the Vice-Admiralty court. A hearing was held and if evidence was presented that the prize was the property of an enemy or one of its merchants, the court would order her sold for auction. A judge was awarded five percent of any fine he levied or ship and cargo he condemned for sale. After he took his cut, the remaining proceeds were shared with the owner(s), the captain and crew. After the war, the courts’ powers were expanded again, this time to include imperial jurisdiction so that they could deal with enforcement of the Trade and Navigation Acts, that is, the collection of customs and putting an end to smuggling. According to clauses 40 and 41 of the Revenue Act of 1764 and clauses 57 and 58 of the Stamp Act of 1765, penalties and forfeitures were recoverable in Vice-Admiralty courts.[9] They ranged from small fines for failure to comply with administrative rules to forfeiture of the vessel and/or goods for substantive violations of the Acts.
Until the establishment of the Vice-Admiralty Courts in 1696, trade and revenue cases had been tried in the colonies’ common-law courts. Common-law courts continued, however, to hear other types of cases brought by customs officials and other Crown officers. Because those officials could rarely get convictions in these courts, equal jurisdiction was extended to the Vice-Admiralty courts in 1764.
Vice-Admiralty courts and Common-Law courts operated differently. Colonists, in a Vice-Admiralty Court, appeared before a judge who heard all evidence and testimony, and then handed down a ruling without a jury; civil rather than common law was employed; action could be taken in rem (against an object or thing) as well as in personam (against an individual)[10]; the defendant was assumed guilty until he proved himself innocent; if the defendant failed to show for his court date he was found automatically guilty; and formal opinions were not written. As a result, custom officials could choose whichever type of court they thought best suited their purposes.
In many cases the jurisdiction of Vice-Admiralty and Common-Law courts overlapped. When this happened, the Vice-Admiralty courts took a back seat to the Common Law courts because of the Writ of Prohibition. If a defendant in an Admiralty proceeding appealed to the King’s Bench which possessed a considerable body of case law defining Vice-Admiralty jurisdiction for such a writ, and if the Bench agreed that a Common Law court properly had jurisdiction, a writ or directive was issued for the admiralty court to desist from adjudicating the case.[11] The common law courts also had jurisdiction over most maritime contracts because they were made on land. It is probable that some admiralty courts heard cases in the colonies which, if they had been presented in England, would have been subject to Writs of Prohibition.
On June 29, 1767 Parliament passed the Commissioners of Customs Act.[12] Modeled after the British Board of Customs it created an American Board of Customs, raised the number of customs officials, and constructed a colonial coast guard. The Board was composed of five commissioners and was headquartered in Boston. They were to enforce the levying of duties on imports for the express purpose of raising revenue. To Americans who believed that taxation without representation was tyranny, the commissioners who were responsible for collecting taxes that had not been voted on by the colonists were representatives of that tyranny. The commissioners fueled the colonists’ anger whenever they used a Writ of Assistance. This was a general warrant that authorized a customs official with the assistance of a sheriff or justice of the peace to conduct a search wherever he pleased for smuggled goods. In most cases, the warrant did not identify what goods were sought or where the search was to be conducted. A customs official was not required to produce any evidence on which the warrant was based, he merely had to have suspicions. He could enter a colonist’s home without giving prior notice, at any time of the day, and was not responsible for any damage he caused while conducting his search. In the wrong hands, the warrant was used to harass the colonists. When combined, the Vice-admiralty court and a Writ of Assistance took away many of the rights that the colonists believed all Englishmen were entitled to.
Customs officials could bring action in the Vice-Admiralty court in Halifax or the district Vice-Admiralty court. The Vice-Admiralty court in Halifax had general jurisdiction from the Floridas to Newfoundland. The court did not supersede the authority of the existing courts, but rather was used when officials felt that the local court might be reluctant to convict. They could require anyone charged to appear before the court in Nova Scotia. The distance precluded many from making the trip, thus they were rendered guilty. From the perspective of those who were charged with a crime, this was unjust. They soon would turn to the argument that the lack of a trial by jury was an infringement of their constitutional rights.
The most famous Vice-Admiralty court case took place in Boston. John Hancock owned a sloop called the Liberty. On May 9, 1768, she arrived in Boston harbor carrying a shipment of wine. The next day customs officials came on board to inspect the cargo and assess the appropriate duties. They found only 25 pipes of wine. Even though they suspected that more had been unloaded the night before, they could not prove it. Thomas Kirk, a tidesman who had been on board overnight, issued a sworn statement that nothing had been unloaded.[13]
Four weeks later, Kirk changed his story and claimed that he had been restrained on the night in question for three hours during which time he “heard a noise … of many people upon deck at Work Hoisting out Goods.” On June 10, Joseph Harrison, a customs official, and Benjamin Hallowell, the Comptroller, ordered the Liberty to be seized “for violation of the statutory prohibition against unloading before entry”[14] and towed out to the British ship HMS Romney. A large crowd had begun to gather on the wharf. They quickly turned into a mob and a small riot ensued. Unable to free the sloop, the mob turned on the officials. Fearing for their safety, the next day they moved their customs operation to Castle William in the harbor.
On June 22, Jonathan Sewall filed a libel, in rem, on behalf of Joseph Harrison against the Liberty.[15] Two months later, Judge Auchmuty declared the Liberty forfeit. On October 29, Sewall filed an information (a formal list of charges), in personam, against John Hancock.[16] Hancock quickly hired John Adams as his attorney. Examination of the Crown’s witnesses began on December 13; defense witnesses on February 16. Five weeks later the court record was brief: “The Advocate General prays leave to Retract this Information and says our Sovereign Lord the King will prosecute no further hereon.”[17] Adams throughout the nine-month trial questioned the validity of the legislation under which the case was tried. He claimed “Clyent Mr. Hancock never consented to [the Act]” through his own vote or that of a representative and he was denied his right to a trial by jury. Thus, by repealing “Magna Charta, as far as America is concerned,” Hancock was “degraded below the rank of an Englishman.”[18] The defense worked. If Hancock had been found guilty he would have had to pay a penalty of triple the value of the wine or 9,000 pounds.[19]
The most famous case challenging Writs of Assistance also took place in Boston but several years earlier. On October 25, 1760 King George II died. According to statute law, all Writs of Assistance issued under his reign would expire six months after the date of his death, that is, April 25, 1761. A group of merchants in Boston wanted the manner of issuance and the authority granted by the writs to be changed by the Massachusetts Superior Court before new ones were issued.
They asked James Otis to represent them in their petition; he agreed and told them that he would not take a fee for his services.
Two types a warrants were used in the colonies: the common-law warrant that allowed an officer to search for stolen goods, and the general warrant that allowed an officer to engage in a wide-range of searches and seizures. A Writ of Assistance was a general warrant. The central statute that Otis was going to argue against was the Act of 1662 which stated,
“any person or persons, authorized by writ of assistance under the seal of his majesty’s court of exchequer [and with an officer] … in the day time [may] enter and go into any house, shop, warehouse or room or other place, and in case of resistance, to break open doors, chest, trunks and other package, there to seize, and from thence to bring, any kind of goods or merchandize whatsoever, prohibited and uncustomed.”[20]
On February 24, 1761, Otis gave his now famous speech. He did not argue for limiting or restricting of government authority, but rather for the protection of an individual’s interest, that is, life, liberty and property:[21]
“Every householder in this province, will necessarily become less secure than he was before this writ had any existence among us; for by it, a custom house officer or any other person has a power given to him … to enter forcefully into a dwelling House, and rifle every part of it where he shall please to suspect uncustomed goods are lodged! Will any man put so great a value on his freehold, after such a power commences as he did before? Every man in this province, will be liable to be insulted … and threatned to have his house ransack’d, unless he will comply with his unreasonable and imprudent demands; Will anyone under such circumstances, ever again boast of British honor or British privilege?”[22]
He outlined why the writs were deficient:
“The writ is universal … it is directed to every subject in the King’s dominions. Every one with this writ may be a tyrant. … It is perpetual … A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny … a person with this writ, in the daytime, may enter all houses, shops, etc. at will and command all to assist him… One of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege.”[23]
He offered an alternative:
“Special writs may be granted on oath and probable suspicion … an officer sould show probable grounds, should take his oath on it, should do this before a magistrate, and that such magistrate, if he think proper should issue a special warrant to a constable to search the places.”[24]
Before rendering a judgment, the court suspended their deliberations pending an inquiry by Chief Justice Hutchinson into the Exchequer practice in England. The reply was that the Writ of Assistance was the general standing warrant issued by the clerk of the Exchequer when applied for by a Customs Commissioner. Upon learning this, the court decided unanimously against the merchants.[25]
The use of Writs of Assistance for customs searches and seizures with the support of the Vice-Admiralty courts caused deep resentment in the colonies. They were significant issues for the colonists even before the Stamp Act was passed. They were at the beginning of the path of events and actions that led to revolution and independence. Sadly James Otis never lived long enough to see his argument become the basis for the 4th Amendment to the United States Constitution in 1787.
[1] Albert Bushnell Hart and Edward Channing, eds., American History Leaflets – Colonial and Constitutional, No. 19, “Extracts from The Navigation Acts 1645-1696, 7 & 8 William and Mary 3, c. 22” (New York: A. Lovell & Company, 1895), 23.
[2] Gerard J. Mangone, United States Admiralty Law (The Hague, Netherlands: Kluwer Law International, 1997), 26.
[3] British Museum Additional Manuscripts, 35910 (Hardwicke Papers, DLXII, folio 225).
[4] The Statutes At Large, From Magna Charta To The End Of The Eleventh Parliament Of Great Britain, Anno 1761 Continued, Volume XXVIII, 1768, 70-1; 8 Geo. III. C. 22.
[5] “Order of the Privy Council of Great Britain concerning Courts of Vice-Admiralty in North America, July 06, 1768,” British National Archives. America and West Indies Vol: 107, 25.
[6] David R. Owen & Michael C. Tolley, Courts of Admiralty in Colonial America: The Maryland Experience 1634-1776, xxxii (Durham, NC: Carolina Academic Press, 1995), 97.
[7] J. Franklin Jameson, Privateering and Piracy in the Colonial Period (New York: MacMillan, 1923), 577 note.
[8] Kinvin Wroth, “Massachusetts Vice Admiralty Courts and the Federal Admiralty Jurisdiction, American Journal of Legal History, Vol. 6, No. 4 (Oct., 1962), 347-48.
[9] http://avalon.law.yale.edu/18th_century/sugar_act_1764.asp
http://avalon.law.yale.edu/18th_century/stamp_act_1765.asp
[10] http://thelawdictionary.org/in-personam-in-rem/
[11] Charles M. Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law, Vol. 1 (New York: Oceana Publications, Inc., 2004).
[12] The Statutes At Large, From Magna Charta To The End Of The Eleventh Parliament Of Great Britain, Anno 1761 Continued, Volume XXVII, 1767, 609-10; 7 Geo. III. c. 41.
[13] Oliver Morton Dickerson “John Hancock: Notorious Smuggler or Near Victim of
the British Racketeers?” The Mississippi Valley Historical Review 32, No.4 (March,
1946), 521-22.
[14] Sewell vs. Hancock, Editorial Note, in Legal Papers of John Adams, supra note
86, at 175.
[15] Joseph Harrison Esq. v. The Sloop Liberty, Vice-Admiralty Minutes Book, 22
June 1768.
[16] Oliver Morton Dickerson, Boston Under Military Rule as Revealed in a Journal of
the Times (Boston: Chapman & Grimes, 1936), 16; 29 October 1768, Vice-Admiralty
Minutes Book.
[17] 25 March 1769, Vice-Admiralty Minutes Book.
[18] Suffolk County Courthouse, Records, Court of Vice-Admiralty, Province of Massachusetts Bay, 1765-1772.
[19] The Adams Papers, Diary and Autobiography of John Adams, Vol. 3, Diary, 1782-1804; Autobiography, Part One to October 1777, ed. L. H. Butterfield (Cambridge, MA: Harvard University Press, 1961), 305-06.
[20] 13 and 14 Charles II, Ch. 11 (1662).
[21] “Letter from John Adams to William Tudor, 1 June 1818,” The Works of John Adams, Vol. 10 (1856), supra note 12, at 315-16
[22] Josiah Quincy, Jr., supra note 13, at 489.
[23] The Works of John Adams, Appendix A (1850), supra note 12, at 524-25.
[24] Ibid.
[25] Josiah Quincy, Jr., 51-57; Boston Gazette, 23 Nov. 1761.
One thought on “Vice-Admiralty Courts and Writs of Assistance”
Bob,
This a great, and valuable, contribution towards understanding the Writs of Assistance, an area of Revolutionary-era law that really needs more attention. You have done a super job describing the various components involved; love the Latin with in rem and in personam – my personal favorite in forfeiture issues is deodand!
You might consider another article that discusses the practicalities of the Writs alone since they are so critical in understanding of the Fourth Amendment’s search and seizure provisions you refer too. And you are right, this was one of the precipitating events that eventually led to war.