This is a continuation from page 1 of this article.

Law as Weapon: Lawsuits to punish custom collections in Rhode Island and Massachusetts.

Lawsuits were used to punish customs officials and English navy officers enforcing customs laws. When a customs person would seize illegal goods, he could be, and often was, sued in the local court for an illegal seizure. An illustrative case was one in which John Adams argued for the merchant. The jury returned a verdict against the customs person and for Adams client of 2,700 English pounds, although what was claimed was only a loss of goods of approximately 1,000 English pounds. [Zobel, The Boston Massacre, at 169]

Another case in point is Ervin v. Cradock [Quincy Reports at 553-554, Footnote 2, in Appendix II (1765)]. The plaintiff John Ervin was a member of the Governor's Counsel. The defendant, George Cradock, was a collector of import taxes at the Port of Boston. Cradock seized the vessel of Ervin and had the ship libeled in the Vice Admiralty Court. Ervin appeared in court and settled the matter by making a payment to the court. In this case Ervin paid 500 English pounds to get his ship back.

After having received back his ship Ervin brought a common law action against Cradock for damages, claiming an illegal seizure. The lawsuit was in trespass and the theory was that the payment to recover the ship was not voluntary but extorted by violence and under duress. [Letter from Governor Francis Bernard to former Governor Thomas Pownall, 28 August 1761, quoted in Appendix II Quincy Reports 555, Footnote 2 (1765)].  ("Suit in trespass" was the type of lawsuit one would use in those days if someone stole your property.  The legal theory was that the defendant had "trespassed" upon your right to use and enjoy your property.)

When the case on for trial at the Inferior Court of Common Pleas before a jury, both Ervin's attorney and also the judges made it plain to the jury concern that there was a necessity of putting a stop to the practice of the Custom House Officers of seizing the ships of merchants. Two of the judges directed the jury to find a verdict for the plaintiff and give him every farthing he was out pocket; and if the jury did not do so there would be riots and bloodshed, for the people would bear those Custom House taxes and seizures. The jury returned a verdict of approximately 600 English pounds, thus giving Ervin about a hundred pounds of profit and causing a personal loss to the collector of revenue for having seized the smuggled goods.

The law at that time was emphatic that there could not be a motion for a new trial on the grounds that the jury had disregarded the court's instructions or that the court's instructions were wrong. [Angier vs. Jackson, Quincy Reports 84 (1763)]. In Massachusetts the civil jury's verdict was truly final. All that customs collector Cradock could do was to take an appeal outside the Province to the English King in Counsel, hoping that somehow the execution of judgment could be stayed or that he would be kept out of jail as a debtor until orders came from London.

When the appeal was made Ervin settled the matter privately with Cradock. Ervin's decision is not surprising. In a similar situation John Hancock did the same. [Thomas Hutchinson, The History of the Province of Massachusetts Bay,at 161].

The effects of suits like Ervin vs. Cradock were to make the customs people stop enforcing the customs law even if they could win on an appeal to the king. A judgment of a penny less than 300 English pounds could not even be appealed to any higher court or to the King. Further, even if an appeal could be made from the local jury's verdict, and even if it were successful as an appeal, it was not encouraging. The costs of defending a lawsuit, plus the very real chance of laying in jail for a few months waiting to get out of prison as a debtor, while waiting an appeal to the king, was a sufficient threat.

In a case involving Joseph Bucklin 4th, in 1768, the local Rhode Island judge of the Rhode Island Vice-Admiralty Court had issued an opinion that a collector of customs could not legally seize a ship for carrying smuggled goods.  See the case notes near the bottom of our web page on the subject.  Hence, the local judges in the common law courts of Rhode Island found no problem in telling the jury that the seizure of a ship was illegal and the jury could award damages against the English navy captain and customs collectors.

A point of court jurisdiction and one of colony jurisdiction are important, and perhaps figured in the attack on the Gaspee.  (See our theory that the raiders may have been attempting to serve a warrant to arrest Lt. Dudingston for illegally seizing the ship of the Greenes.)  In short, the Rhode Island courts considered that the Admiralty courts did not have jurisdiction in Narragansett Bay, and a English navy ship could not take action to enforce civil law in Narragansett Bay without the consent of the Rhode Island governor. 

These above points figured in a June 1772 case, shortly after the Gaspee attack.  In John Clark and Joseph Nightingale v. Charles Dudley, Collector of Revenue, Providence County Superior Court, Record Book Number 2, pages 160 to 166, the attempted customs seizure by the English navy ship Beaver was frustrated.  On June 27, 1772,  the Beaver had stopped the ship of Clark and Nightingale, prominent merchants of Providence, after it had reported its cargo to Newport and was proceeding to Providence.  The captain of the Beaver found 55 hogsheads of molasses and 26 hogsheads of sugar which had not been reported and on which no import tax had been paid.  The Beaver seized the illegal goods and the ship and took them to Newport for legal action.   On July 2nd, Clark and Nightengale appeared in the Newport office of Dudley and demanded that he as Collector of Revenue accept their declaration of importation of 55 hogsheads of molasses and 26 hogsheads of sugar and take the tax money they offered him.  Dudley refused to accept the declaration or tax money on the reasonable ground that it was too late because the goods and ship had already been seized for illegal smuggling.

The Clark and Nightingale case proceed to a judgment against Dudley in which the jury found that he should pay 500 English pounds damages for his illegal actions and the judges issued a judgment ordering him to accept the tax payment.  The theory was simple, but legally elegant.  Because the Beaver could not legally take any action in Narragansett Bay,  the seizure was void, and hence there was in law no seizure and Dudley had no legal right to refuse payment of taxes by citizens who voluntarily were complying with the law.

The next step of course, was a judgment of the court directing the Sheriff to go to the port where the ship was anchored and recover the ship from the possession of the English Navy or Customs Officers and give it back to Clark and Nightingale.   See our discussion of this legal theory in regard to the Rhode Island attack upon the Gaspee following the Gaspees seizure of the Greene's ship a few days before the Beaver's seizure of Clark's ship.

Another instance to consider is the 1771 case of James Otis against John Robinson, an especially unpopular customs commissioner. In that case Otis had received some injury in a brawl in a coffeehouse and sued Robinson. The jury for the Inferior Court of Common Pleas brought in a plaintiffs verdict in the astounding amount of 2,000 English pounds. [Zobel, Law Under Pressure, at 197]. In fact, with costs, the verdict was even higher. It was the highest one in the contemporary jury awards. [Boston Evening Post, 29 July 1771 page three].

What was astounding was that the successful plaintiff Otis appealed to the Superior Court of Judicature. He must have thought it likely that a second jury would vote an even higher sum; so too apparently did customs collector Robinson. After the successful attach on the Gaspee, in June 1772, Robinson promptly decided that it would be prudent to confess his liability to pay and gave a public formal apology. [Statement of John Robinson's filed with the Superior Court, Suffolk County, printed in Boston Evening Post, 14 September 1772, page two].

Law was proclaimed to protect local interests.  An interesting case is the case of the Brigantine Lydia. John Hancock was a leading Whig merchant of Boston. When custom agents tried to inspect his Brigantine Lydia he said they could only inspect topside but could not go below deck. By force Hancock prevented the customs agents inspecting the hold of the ship. Getting a jury to indict Hancock for a crime was impossible. So the alternative was getting a court or the Attorney General of the colony to issues an information bring Hancock to trial. But the interpretation of the statute by Attorney General Jonathan Seawall was that the statutory words giving custom's official a right to go on board meant only on the deck. Even the Attorney General thus was taking the position that going into the hold without a warrant was acting unlawfully. [Two legal papers of John Adams at 174]. [Oliver M. Dickerson, opinion of Attorney General Jonathan Seawall of Massachusetts in the case of Lydia].

Another case showing the temper of the times was a case involving John Hancock was one involving the Sloop Liberty, seized by the custom commissioner for landing wine without paying the duties required by Imperial Law. After the Sloop was condemned, in an in rem proceeding in the court of Vice Admiralty and forfeited to the Crown, then an act in personam was brought against Hancock (under the English act allowing an information to be filed on the criminal side of Vice Admiralty against persons assisting or otherwise concerned in landing merchandise without the payment of duties.

When the prosecution's key witness was ready to offer his testimony John Adams for the defense argued that the key witness was disqualified from testifying because he was a felon. Unfortunately for Adams, the witness had no criminal judgment, much less a felony judgment, against him. But, immediately, before the evidence could be taken in the Vice Admiralty Court, the Suffolk County Grand Jury indicted the prosecution's key witness for perjury, and he fled the Province. The case against Hancock was then dropped. [Two legal papers of John Adams at 183-184].

Lawyers can understand the conditions of pre-revolutionary law that gave the Whigs control of the civil jury. Lawyers also can understand the conditions of pre-revolutionary law that rendered the Tory bench unable to control civil juries. It is non-lawyer historians who have missed the significance of the conditions of law existing in Colonial Massachusetts and Colonial Rhode Island.

But it was not only the power of local juries that was involved. Local magistrates were generally Whigs who believed that the use of a standing army in peace time was a violation of the English constitution.  Therefore, in addition to not being  supportive of enforcement of unpopular English laws, the judges felt it would be unconstitutional for them to call upon the standing army in their colony.. For example, note the plight of Lieutenant Colonel William Dalrymple, commander of the British troops stationed in Boston. He legally could not use troops to prevent or put down the Boston riots --- because the civil authorities did not ask him to do that. See Use of Standing Army in Massachusetts and Rhode Island. 

Local Grand Juries refused to indict customs violators. Grand Juries were composed of persons appointed by the local legislatures and officials.  Thus an effective method, often used, was to put on the grand jury the very persons who had committed an act against the English customs officials,  or English Army or Navy.  Whig control of Massachusetts grand juries meant not only that military action was suppressed but also that mobs and rioters were protected. It was impossible for the king's officials to obtain indictments against persons accused of political offenses or rioting or acting against the king's army.

to more on the use of law as a weapon