How John Adams Won the Hancock Trial

Historian Oliver Morton Dickerson was studying American colonial newspapers when he noticed identical articles appearing in newspapers in New York, Pennsylvania, Boston, elsewhere in the colonies and in England. It was an anonymous column called A Journal of the Times.   The Journal covered daily events in Boston from September of 1768 through August of 1769 when Boston was under military occupation by the British. The last column was published in the New York Journal on November 30, 1769. Dickerson published the Journal in a book.[1]

Frequent topics in the Journal included outrageous tax enforcement through zero tolerance searches and seizures in Boston Harbor (as orchestrated by the Treasury Board of Commissioners) and abuses by the occupying British soldiers who were robbing and beating the townspeople or raping an old woman and stealing her laundry.[2] A third frequent topic in the Journal was the John Hancock Admiralty Court smuggling trial. Hancock was one of the wealthiest shipping merchants in the country.[3] He had been accused by the British Empire of conspiring to unload goods from his commercial vessel without payment of duties. His trial attorney was John Adams. At the time, Adams was a thirty-three-year-old married attorney with two young kids and a third born shortly after the trial started.

The series of events that led up to Hancock’s Admiralty Court trial and his arrest in November of 1768 began to unfold when the Board of Customs Commissioners arrived in Boston to manage revenue collection for the American Colonies. They picked a fight with John Hancock and he with them.[4]   The Hancock trial was not their first attempt to make an example out of Hancock.

Seven months before Hancock’s arrest, the Board of Commissioners had wanted the local prosecutor to convict Hancock on a different matter – the manhandling of a tidesman named Owen Richards. A tidesman was a customs official stationed on deck to make sure goods were not smuggled ashore before clearance and payment of duties; and it was someone who would collect a third of the financial results as an informer. On April 8, 1768, Hancock and his men had discovered Richards standing on the upper deck of the brig Lydia. Richards did not have a Writ of Assistance, which was a court document necessary for Richards to search below deck. Richards told Hancock that he did not intend to search the Lydia. Hancock admonished his men not to let Richards go below deck. Richards was found below deck twice. The second time, Hancock’s men grabbed Richards and carried him above deck. For that, the Commissioners referred the matter to the local prosecutor, Jonathan Sewall.

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Sewall declined to prosecute for two reasons. First, prosecution for forceful resistance to revenue collection required clubs or other weapons which were not present. Second, under the statute, the tidesman only had the authority “freely to go and remain on Board until the Vessel is discharged of her Lading.” Sewall decided that to be “on Board” meant to be “on deck” and Richards, without a Writ of Assistance, did not have authority to go below deck. [5]

The Commissioners wrote home to the Treasury Board, who also refused to authorize prosecution of Hancock. One reason the Commissioners gave in favor of prosecution was that Hancock and the members of his battalion had refused to attend a party because the Commissioners would be on the guest list:

We cannot omit mentioning to your Lordships that Mr. Hancock before named is one of the leaders of the Disaffected in this town, that early in the Winter he declared in the General Assembly that he would not suffer our officers to go even on board any of his London Ships and now he carries his opposition to Government to even a higher pitch. Being Major of his company of Cadets which distinguished itself in the year 1766 by putting a stop to the riots, and it being usual for the Governor to invite all the servants of the Crown to Dine with him on the Day of their general election, which happens on the 25th instant, a Majority of his Corps met together a few days ago and came to a resolution to acquaint the Governor, that they would not attend him on that occasion as usual if he invited the Commissioners of the Customs to dine with him, and this being signified to His Excellency, he answered that he would enter into no stipulation with them, and positively required their attendance. Mr. Hancock thereupon tore the seal off his Commission, and all the rest of the Company except nine Declared they would not continue any longer in the service. This infatuated man now gives out in public that if we are not recalled, he will get rid of us before Christmas. [6]

The charges against Hancock in the Admiralty Court were based on events occurring a month after the Lydia incident on the night of May 9, 1768 on Hancock’s sloop, the Liberty. When the Liberty unloaded the following day, the tidesman Thomas Kirk gave the sloop proper clearance. But a month later (on June 10) Kirk changed his mind. He swore out a new affidavit saying goods had been unshipped off the Liberty without payment of duties.

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The new affidavit recited that on the night of May 9, a Captain Marshall and five or six men arrived asking Kirk “to consent to the hoisting out several Casks of Wine.” Kirk refused and was forced below deck, and the cabin door was nailed shut. Kirk said he could hear the tackle moving. Kirk also said that Marshall had threatened his life, but Marshall had died thereafter and his subsequent death explained the new affidavit. A second tidesman, who was supposed to be present, was examined but he said he was asleep at the time. Kirk said the other tidesman “was drunk and had gone home to Bed.”[7]   The British Attorney General, William De Grey, approved prosecution to be “brought against persons concern’d in unshipping the Goods” from Hancock’s Sloop Liberty.” [8]

By the time the prosecution of Hancock had been approved by De Grey, the Liberty had already been seized. It was seized on the night of June 10, the same date as Kirk’s revised affidavit. The seizure provoked a mob riot of about 4 or 500 persons. The Commissioners fled and wrote home about the riot.[9]

According to Oliver Dickerson, the Liberty was not seized on June 10 for anything having to do with the events on the 9th of May. The charge against Hancock in the Admiralty Court trial was that on March 9, Hancock had been “willfully and unlawfully aiding and assisting in unshipping and landing one hundred Pipes of Wine.”[10]   But, according to the filed seizure paperwork, the Liberty was seized for loading 20 barrels of tar and 200 barrels of oil without a permit on June 10. Loading without a permit, although illegal, was an unfair technicality that could have led to the seizure of every ship anchored in Boston Harbor. The universal practice in Boston Harbor was to load goods first and then proceed to the nearest customhouse to complete the paperwork.[11]

After the June 10 riot, Britain sent troops to occupy Boston. The Journal reported:

October 1, 1768:

At about 1 o’clock, all the troops landed under cover of the cannon of the ships of war, and marched into the Common, with muskets charged, bayonets fixed, colours flying, drums beating and fifes, &c. playing, making with the train of artillery upwards of 700 men. [12]

Paul Revere made an engraving of the landing of the troops. In it are the longboats unloading sailors from the British military vessels and the sailors lining up on the Long Wharf to march through town.

The Journal later reported:

26 December 1768.

This morning a vessel from Salem or Marblehead, having a cask of sugar on board, which it was supposed had not been properly cleared out, was seized by one of the custom-house officers, who brought a number of SOLDIERS! to assist and keep possession of said vessel, but upon discovery that the sugar had been reported at the Custom-House, she was soon released. It is very extraordinary that soldiers should be called in upon such occasions: It seems calculated to lead Administration to conceive that the quartering of troops in this town is necessary to enable the customhouse officers to discharge their duty [13]

The American Colonies were introduced to the John Hancock trial on November 3, 1768:

November 3, 1768

We can now account for the orders of the last night. This morning Mr. Arodi Thayer, marshal of the Court of Admiralty for three provinces, with a hanger at his side, came to the house of John Hancock, Esq; to serve him with a precept for £9000 sterling, and having arrested his person, demanded bail for £3000 sterling. Mr. Hancock offered him divers estates to the value thereof, which were absolutely refused; he then made him an offer of £3000 in money, and afterwards of £9000, which were also refused Mr. Thayer alledging that such were his directions. [14]

The Admiralty Court

At this juncture, a short explanation of Admiralty Court procedures and English Common law may help understand the legal situation. The initiating document in Admiralty Court is called a libel and the proceeding is initiated with the arrest of the person charged and their posting bond.[15]   The verdict is rendered by the judge.[16]   Procedural rules in Admiralty Court came from Roman civil law where judges rendered verdicts in non-criminal Roman civil law trials. [17] Judge verdicts in Admiralty Court proceedings were a departure from English common law jury trials to which English subjects were accustomed.

Juries under English common law grew out of a Norman procedure called an “inquest” that was imported into England during the Norman Conquest. The inquest consisted of men in the neighborhood with knowledge of the pertinent events being summoned to reply under oath to any inquiries that might be addressed to them. That inquest evolved into English jury trials.[18]   In contrast, Roman civil law developed in a class society where judgeships were dispensed to upper class patricians as a kind of compensation. [19]

Civil law and common law trials differ in certain procedural respects that pertain to the Hancock trial. Civil law verdicts required at least two qualified witnesses or at least one witness with strong corroborating circumstances.[20]   Common law jury verdicts did not have that requirement.[21]   Decisions by judges under civil law rules could be based entirely on written answers to interrogatories that had been given to the judge (and without any oral testimony).[22]

Originally, Admiralty Courts were a forum for resolving commercial disputes in the sea trade and that was the case for hundreds of years before the American Revolution.[23]   When the British suspected that American colonial jury trials were too sympathetic to smugglers, they transferred jurisdiction of customs violations to the Admiralty Court where the King’s judges would be sympathetic to the Crown. That suspicion of juries developed sometime before 1696. Surveyor General Edward Randolph had written in 1695:

The illegal trade of the plantations was supported and encouraged by the Generall partiality of Courts and Jurys (byassed by private Interest) in causes relating to the Crown. [24]

It was Randolph who suggested transferring jurisdiction of customs violations to non-jury Admiralty courts where judges could be picked by the King.[25]   That suggestion was enacted in 1696[26] after which seven Admiralty Court jurisdictions were created in the colonies.[27]

The Colonies fought back. In Rhode Island, the governor refused to administer the new Admiralty Court Judge oath of office.[28] The Governor of Connecticut refused to recognize the commission of the judge, holding that it was a violation of the colonial charter.[29] A judge in South Carolina complained of mistreatment by the colony. The governor and council in the Bahamas denounced the commission and the judge fled for fear of his life. Pennsylvania passed a law providing that all breaches of the trade laws should be tried before juries in common law courts.[30]

Eventually, under the Sugar Act of 1763, a new single Vice Admiralty Court was created in Halifax where prosecutors or informers could sue regardless of the location of the infraction.[31] But a single Vice Admiralty Court covering the entire expanse of America did not work well geographically. So, the Vice Admiralty Court Act of July 6, 1768 amended the law to provide for four territorial Vice Admiralty Courts in Halifax, Boston, Philadelphia and Charles Town.[32]

One other issue relates to the Hancock trial. Hancock was charged with treble damages of the value of the goods unshipped without payment of customs duties.[33] Admiralty Court judge compensation was customarily paid out of the proceeds from the sale of condemned property[34] creating a financial incentive for the judge to condemn property in order to get paid. Governor Bernard of Massachusetts had written in 1764:

… the objection to the Judge of the Admiralty being paid by the poundage of condemnation is very forcible; for thereby it is his interest to condemn, rather than to acquit. [35]

In response to a concern about a judicial compensation bias, the 1768 Vice Admiralty Court Act also provided for a set salary paid from the King’s share of fines and forfeitures. Theoretically, judgeships could be terminated under the Act if the judge should “take any Fee or Gratuity whatsoever for any Judgment given or business done in their respective Courts.”[36] That salary change in the law was mentioned in the Journal of the Times:

January 28, 1769

… this pay of former judges, was a commission on condemnations; It was viewed in the light of a bribe; the grievance has been redressed, by substituting a greater; the present judges salaries are to be paid out of fines and forfeitures, and is six times more upon an average than has been received by all former judges thro’ the continent. [37]

The Hancock Legal Arguments

The Hancock Admiralty Court trial was reported in the Journal of the Times on eighteen occasions. The critical legal question in the Hancock trial was whether there was any evidence to show that Hancock was aiding and assisting Captain Marshall. According to Adams:

That even if Captain Marshall had landed the wines before the duties were paid, (of which there was evidence,) Mr. Hancock, if he “neither consented to this Frollick, nor knew of it” could not be held to be “assisting or otherwise concerned in the unshipping or landing inwards…”[38]

One important witness of unknown testimony may have provided a crucial conspiracy link between Hancock and Marshall. That man was Maysel (at times spelled Muzzele). Maysel was indicted for perjury by a Massachusetts county grand jury on March 27, 1769,[39] and convicted in abstentia on April 22.[40] Maysel was absent from the proceedings apparently because, according to the Journal, he had been given a job by the Commissioners outside of the jurisdiction “on board the Liberty, late Mr. Hancock’s, now a guarda costa.”[41]

In his court arguments, Adams insisted that the introduction into evidence of Maysel’s written answers to interrogatories should not happen without a cross examination of Maysel.[42] To make sense of Adams’s argument, suppose that Maysel gave written testimony quoting Captain Marshall (who had since died) to the effect that Marshall had conspired with Hancock to unload without paying duties. Based on Journal reporting, Maysel was to be indicted by the local colonists for perjury and had been moved outside of the jurisdiction by the British.

February 24

The advocates for Mr. Hancock, offered evidence to prove that a witness, who had been before examined for the proponent, [the crown] 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, [Adams] replied, that the Court of Admiralty proceed according to the civil law, whereby a witnesses whole life and conversation ought to be examined … 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, and summon a jury … But if the court is to proceed by the civil law, the respondent ought to have the advantage of all the beneficial rules of that law, particularly to examine into the whole life and conversation of the witnesses, to except peremptorily to all persons, who are related to him, within the degrees mentioned in the civil law, and to all persons under 20 years of age, and finally to be convicted only on the testimony of two unexceptionable witnesses [43]

The Admiralty Court ruled that it would not change its procedures and decreed Adam’s question withdrawn.

March 2

A Court of Admiralty relative to Mr. Hancock’s libels, sat yesterday.—It is said the judge has given his decree upon the question mentioned, in our last Journal.— And it is said that the purport of it is, that considering the usage of the court, and the inconveniences that would attend the introduction of the rules of civil law, in cases of this nature, he decreed the question to be withdrawn … As to the inconveniencies; these have not been sufficient to deter the court from introducing interrogatories into such cases, which are unknown to the common law… 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 revenue, they had a right to such rules of the same law, as made in favour of Mr. Hancock.[44]

On March 26, 1769, England dropped its case against Hancock. Adams won.

March 26

… upon a motion made by the King’s advocate, the prosecutions which have for many months past been carrying on against John Hancock, Esq; and other gentlemen of this town were dropt—We cannot help remarking at present, that one of the witnesses summoned on the part of the crown in these vexatious prosecutions, stands presented by the grand jury of the county for perjury, in this very instance; but we shall defer a full narration of the infamous steps taken by the C—m—rs without the least shadow of proof, to harass and if possible, to ruin the fortunes, as well as reputations, of gentlemen of the most distinguished and unblemished character; until we shall have leisure to make it the particular object of our attention. [45]

As for the eventual fate of the Liberty, that was reported in the Journal on August 1, 1769:

The sloop Liberty, lately owned by Mr. Hancock, and by way of insult to the merchant, fitted out by the C—m—rs, at a most enormous expence to the crown, as a guarda costa, having for some time past greatly distressed the fair trader, has at length come to an untimely end, in the harbor of New-Port Rhode Island, where a number of persons exasperated at the imprudent behavior of the captain and some of his people, went on board her as she lay at anchor, cut the cable, let her drift ashore and then set her on fire. – It is unhappy both for the mother country and colonies that the power of stopping, seizing vessels &c. in our several harbours, has been committed to little injudicious officers of petty guarda costas … [46]

Conclusion

England dropped its case against Hancock after having prevailed on the main issue of the admission of Maysel’s written testimony. A likely explanation was the (pending) indictment of Maysel and the embarrassing mass media implications of a Hancock conviction based on the testimony of a convicted perjurer. If so, the Journal deserves some credit.

Perhaps Adams was one of the Journal’s anonymous authors. This is suggested by the technical nature of the Hancock trial reporting and it is also suggested by this entry in Adams’s diary dated in September of 1769:

SEPT 3D. SUNDAY.

Heard Dr. Cooper in the forenoon, Mr. Champion of Connecticutt in the Afternoon and Mr. Pemberton in the Evening at the Charity Lecture. Spent the Remainder of the Evening and supped with Mr. Otis, in Company with Mr. [Sam] Adams, Mr. Wm. Davis, and Mr. Jno. Gill. The Evening spent in preparing for the Next Days Newspaper—a curious Employment. Cooking up Paragraphs, Articles, Occurences, &c.—working the political Engine. [47]

The reason that nobody to date has identified the authors of the Journal may be because at least one of its authors intended their identities to be a carefully guarded secret. This is suggested by John Adams’s letter to William Tudor in June of 1817.

Without the character of Samuel Adams, the true history of the American Revolution can never be written. For fifty years his pen, his tongue, his activity were constantly exerted for his country, without fee or reward. During all that time he was an almost incessant writer. But where are his writings? Who can collect them? And if collected, who will ever read them? The letters he wrote and received, where are they? I have seen him at Mrs. Yard’s in Philadelphia, when he was about to leave Congress, cut up with his scissors whole bundles of letters, into atoms that could never be reunited, and throw them out at the window, to be scattered by the winds. This was in summer, when he had no fire. In winter he threw whole handfuls into the fire. As we were on terms of perfect intimacy, I have joked him, perhaps rudely, upon his anxious caution. His answer was, “Whatever becomes of me, my friends shall never suffer by my negligence.” [48]

The authors of the Journal are not the only mystery here. One has to wonder how much widespread colonial reading of the British abuses in the Journal contributed to the antipathy that led the colonists to break off from their mother country. One also has to wonder if the Journal made Adams into a celebrity attorney with enough fame to vault him into becoming our first Vice President and our second President.

The real lesson here, about which there is no mystery, is the British effort to subvert the courts to suit the purposes of government. We still have that same fear, the one that we cannot afford to have courts that are sympathetic to taxpayers. This was explained by our Supreme Court in 1875:

If there existed in the courts, State or National, any general power of impeding or controlling the collection of taxes, or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary.[49]

One has to ask, hostile to whom?

[1] Oliver Morton Dickerson, Boston Under Military Rule (Boston: Chapman & Grimes, 1936; reprinted New York: Da Capo Press, 1970), vii-xii, 1, 123-127.

[2] Ibid., 93.

[3] Oliver Morton Dickerson, The Navigation Acts and the American Revolution (University of Pennsylvania Press, 1974), 232.

[4] Ibid., 208.

[5] Opinion of Attorney General Jonathan Sewall in the Case of the Lydia, Given to the Commissioners of Customs at Boston, April 23,1768. Oliver Morton Dickerson, “Opinion of Attorney General Jonathan Sewall of Massachusetts in the Case of the Lydia,” The William and Mary Quarterly, Third Series, Vol. 4, No. 4 (Oct., 1947), 499-504.

[6] Memorial of the Customs Commissioners to the Treasury Board in London, May 12, 1768 Treasury 1:465.

[7] G. G. Wolkins, “Hancock’s Sloop Liberty,” Massachusetts Historical Journal, March 1922”, Vol. 55; Opinion of Attorney General, William De Grey July 15, 1768, 252-276.

[8] Ibid.

[9] Ibid., 274-275.

[10] Massachusetts Historical Society, Legal Papers of John Adams, Vol. 2, 194-195; http://www.masshist.org/publications/apde2/index.php/view?mode=p&vol=LJA02&page=194#194.

[11] Oliver Morton Dickerson. “John Hancock Notorious Smuggler or Near Victim of British Revenue Racketeers,” The Mississippi Valley Historical Review, Vol. 22 No. 4 (Mar. 1946), 518-519.

[12] Dickerson, Boston Under Military Rule, 2.

[13] Dickerson, Boston Under Military Rule, 40.

[14] Dickerson, Boston Under Military Rule, 18.

[15] Charles Sumner, Luther S. Cushing and George S. Hillard, “On the Effect of an Answer Upon Oath in Admiralty” The American Jurist and Law Magazine Vol XVIII (Boston: Weeks Jordan and Company, January 1838), 298.

[16] The Solicitors’ Journal and Reporter Vol. XXXIX, 1894-95 (London: 27 Chancery Lane, W.C. 1895), 760.

[17] Sumner et al., “On the Effect of an Answer,” 297-298.

[18] Leonard W. Levy, Origins of the Fifth Amendment (New York: Macmillan Publishing Company, 1986), 7-9.

[19] Alexander Adam, Roman Antiquities or an Account of The Manner and Customs of The Romans (Philadelphia: J.B. Lippinott & Co., 1872), 83.

[20] Sumner et al., “On the Effect of an Answer,” 296.

[21] John H. Wigmore, “Required Numbers of Witnesses; A Brief History of the Numerical System in England,” Harvard Law Review, Vol. 15, No. 2 (June 1901), 83.

[22] Jerome Frank, “Civil Law Influence on the Common Law – Some Reflections on ‘comparative’ and “‘Contrastive Law’,” University of Pennsylvania Law Review Vol. 104 (May 1956) No. 7, 887.

[23] The Solicitors’ Journal, 759, 778.

[24] Winfred Drexler Root, The Relations of Pennsylvania with British Government 1696-1765 (Philadelphia: University of Pennsylvania, 1912), 91.

[25] Ibid., 92.

[26] Danby Pickering, Statutes at Large from the First year of K. William and Q. Mary to the Eighth year of K. William III, Vol. IX (Cambridge, 1764), “An Act for preventing frauds, and regulating abuses in the plantation Trade” section VII:432.

[27] Root, The Relations of Pennsylvania, 94.

[28] Ibid., 97.

[29] Ibid.

[30] Ibid.

[31] King George the III, Statutes at Large, Vol. 9 , 1764, Geo III c. 15 XLI, 126.

[32] http://www.revolutionary-war-and-beyond.com/vice-admiralty-court-act-of-1768-text.html

[33] Massachusetts Historical Society, Legal Papers of John Adams, Vol. 2, 194-195.

[34] Root, The Relations of Pennsylvania, 119-120.

[35] Root, The Relations of Pennsylvania, 126 n135.

[36] http://www.revolutionary-war-and-beyond.com/vice-admiralty-court-act-of-1768-text.html

[37] Dickerson, Boston Under Military Rule, 56-57.

[38] Josiah Quincy, Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay (Boston: Little, Brown and Company, 1865), 459.

[39] Dickerson, Boston Under Military Rule, 84.

[40] Ibid., 92.

[41] Ibid., 68.

[42] Root, The Relations of Pennsylvania.

[43] Dickerson, Boston Under Military Rule, 68.

[44] Ibid., 72.

[45] Ibid., 83.

[46] Ibid., 125.

[47] Butterfield, Series I Diaries, Diary and Autobiography of John Adams Volume 1, Diary 1755–1770 (Cambridge MA: The Belknap Press of Harvard University Press, , 1962), 342-343; Massssachusetts Historical Society “Diary of John Adams” https://www.masshist.org/publications/apde2/view?id=ADMS-01-01-02-0013-0002-0002

[48] John Adams to William Tudor, June 5, 1817, in Charles Francis Adams, The Works of John Adams (Boston Little Brown and Company, 1856), 262, 264.

[49] Cheatham v. United States, 92 U.S. 85 (1875).