Knollenberg Bernhard. Growth of the American Revolution: 1766-1775
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THE ACT OF 1663 AND COLONIAL
ADMIRALTY COURTS
I , the English Parliament passed the famous act of Chas. II ch. for-
bidding importation into the colonies of any products of continental Europe,
other than salt, except from English ports¹ and providing for suit for forfeiture
of ship or cargo alleged to have been involved in a breach of the act.² The act
uniting England and Scotland passed in put the latter on the same favored
footing as England.³
Enforcement of the Act of in the ordinary colonial courts, the courts
of common law, was difficult because the owner was entitled to trial by jury in
these courts and juries were reluctant to bring in a verdict against the owner.⁴
In the principal law officers of the Crown in England held that section
of the so-called Statute of Frauds of had overcome this difficulty⁵ by giv-
ing colonial admiralty courts, in which the judge sat without jury, jurisdiction
over suits for penalties and forfeitures alleged to have been incurred. However,
their opinion took no notice of an act of Richard II ch. () narrowly lim-
iting the jurisdiction of admiralty courts.
In , Richard West, standing counsel to the Board of Trade, gave an
opinion to the Board holding that this early act applied to colonial admiralty
courts, as well as to admiralty courts in England and must be taken into ac-
count in determining the jurisdiction of colonial admiralty courts over suits for
forfeiture for alleged violation of acts of trade applying to the colonies. He also
held that the Superior Court of Massachusetts, the highest court of common
law in the province, had properly issued writs of prohibition to the admiralty
judge at Boston forbidding him to proceed with a case over which he had no
jurisdiction.⁶
Whether or not West’s opinion was known in the colonies does not appear.
But in any case, the Massachusetts courts of common law acted in harmony
with it, as appears from the following letter written in by William Bollan,
Advocate General for the Crown in Massachusetts, to the Board of Trade:
“There has lately been Carried on here a large illicit Trade (Destructive to
the Interest of Great Britain in her Trade to her own Plantations, and Contrary
to the main intent of all her Laws made to regulate that Trade) by importing into
this province large Quantities of European Goods of Almost all Sorts from di-
verse parts of Europe....⁷ I shall now recount to your Lordships the Difficul-
ties which attend the Suppression of this Mischief; The First and one of the Prin-
cipal is that Breach of the Statute of the th Chs. d Chap. [the Act of ]
...are not Cognizible in the Court of Admiralty...[and] a Tryall by Jury [in
courts of common law] is only trying one Illicite Trader by his Fellows, or at least
his well wishers...[who] defeat all Seizure & prosecutions for the Crown....
“The Statute made in the th & th of Wm. the rd ‘for preventing Frauds
and regulating Abuses in the Plantation Trade’ is so Obscurely penn’d in the
point of the Admiralty’s Jurisdiction that it has received different Constructions
and that Court has been frequently prohibited in this Province to take Cog-
nizance of some of the Main Offences against that Statute, and of late I hear
that like prohibitions have been granted in the province of New York....”
Bollan proposed that Parliament pass an act clearly giving colonial admi-
ralty courts jurisdiction over all offenses committed in the colonies against
British acts restricting colonial trade.⁸
One of the prohibitions in New York referred to by Bollan presumably was
that issued in the case of Archibald Kennedy Esq. qui tam⁹ etc. against the Sloop Mary
& Margaret, Thomas Fowles Reclaimant, arising out of the seizure of the Mary &
Margaret in by Kennedy, Collector of the Port of New York.
Kennedy brought suit in the admiralty court at New York for forfeiture of
the vessel for alleged violation of the Act of by importing into the port of
New York from the Dutch colony of St. Eustatia gunpowder manufactured on
the continent of Europe.
Fowles, owner of the sloop and powder, plead that the court of admiralty
had no jurisdiction over the suit, on the following reasoning. It was well estab-
lished that, legally speaking, “importation” did not take place until a vessel en-
tered port;¹⁰ the port of New York was within the body of the County of New
York;¹¹ and an English act of excluding admiralty courts from taking ju-
risdiction over suits arising within the body of a county was applicable to the
colonies, as well as to England.
The presiding admiralty judge, Lewis Morris, rejected this plea. There-
upon Fowles secured from the New York Supreme Court a writ prohibiting
Judge Morris from proceeding with the suit.¹² Morris at first declined to obey
the writ, but, after much legal skirmishing,¹³ he gave way to the Governor and
Council of New York sitting as a court of error, which, on April , ,
affirmed the Supreme Court’s decision.¹⁴
Kennedy then appealed to the Privy Council in England, the court of last
resort for appeals from colonial courts of common law.¹⁵ Pursuant to estab-
lished practice, the Privy Council referred the appeal to its Committee of
Council for hearing Appeals from the Plantations.¹⁶ The Committee advised
affirmance, and on March , , the Privy Council issued an order in ac-
cord with the Committee’s advice.¹⁷
Since ports throughout the colonies generally were within the body of some
county, this decision of the Privy Council in effect established that colonial ad-
miralty courts had no jurisdiction over suits for forfeiture under the Act of .
The decision in the Kennedy case directly involved only the Act of , but
the principle of the decision applied with equal force to the Act of ( Geo.
I, first session, ch. , sec. ) prohibiting importation into the colonies of any
products of the East Indies except from Great Britain.¹⁸
While the appeal in the Kennedy case was pending in the Privy Council, the
British Admiralty Board submitted to the Treasury Board a proposed bill for
an act giving colonial admiralty courts jurisdiction over suits in all cases in-
volving British acts of trade and revenue affecting the colonies.¹⁹ But no such
act was passed until .
Section of the Act of explicitly granted colonial admiralty courts ju-
risdiction over suits for “all the forfeitures and penalties inflicted by this or any
other act or acts of parliament relating to the trade and revenues of the said
British colonies or plantations in America.” This plainly gave colonial admi-
ralty courts jurisdiction over suits under the acts of and ,²⁰ whether
the alleged offense was committed without or within the body of a county.
The New Admiralty Court at Halifax
In a memorandum of March , , the Admiralty Board suggested to the
Treasury Board the appointment of a person learned in civil law as a “judge of
the Admiralty for all North America...who may have a Concurrency of Pow-
ers with the several judges of the Vice Admiralty Court already appointed in
each Province.” He called attention to an opinion of the Attorney-General and
Solicitor-General that, though the Admiralty had authority to appoint a judge
having jurisdiction throughout the colonies, he could not “entertain jurisdic-
tion in Cases where particular Acts of Parliament have confined the Recovery
of Penalties and Forfeitures to Local Jurisdictions.”²¹
Presumably in response to this memorandum, Parliament, in section of
the Act of , authorized the establishment of a new admiralty court having
jurisdiction “over all America,” concurrently with existing admiralty courts,
over suits for “the forfeitures and penalties inflicted by this or any other act or
acts of parliament relating to the trade and revenues of the said British colo-
nies or plantations in America, which shall be incurred there.”
Soon after passage of this act, the Privy Council approved establishment of
a new court along the lines thus set forth in the act.²²
On June , , the Admiralty Board issued a commission to William
Spry, a lawyer learned in the civil law, as “Commissary Deputy and Surrogate
in and throughout all and every of the Provinces of America and Maritime
Ports thereof and thereto adjacent whatsoever, with a Concurrency of Powers
with the General Judges of the Vice-Admiralty Courts already appointed or to
be appointed in each Province, but without power of hearing appeals from
those Courts.”²³
Early in October, Spry opened the new court at Halifax, Nova Scotia,²⁴
which, though the headquarters of the British fleet in North America, was
hardly more than a village²⁵ and was far removed from the centers of colonial
trade.
The choice of this out-of-the-way site for the new court had been suggested
months earlier in a letter from Admiral Lord Colville, in command of the
British fleet in North American waters, to Philip Stephens, Secretary of the
Navy Board, recommending the establishment of an admiralty court having
jurisdiction throughout the colonies, with Halifax as its seat. He stated that the
admiralty judges in New York and New England were reputedly “too much in-
terested in the welfare of their Neighbours” or might be “intimidated from giv-
ing an impartial Verdict by the threats and well known mobbish Disposition of
the Inhabitants...,” whereas a judge sitting at Halifax would be free from
such influences.²⁶
Establishment of the new court at Halifax, of course, alarmed colonial
merchants and shipowners, who feared they might be compelled to defend
their vessels and cargoes from forfeiture in a court hundreds of miles from their
homes and places of business.²⁷ But, for some unexplained reason or reasons,²⁸
apparently only one suit for forfeiture of property seized outside Nova Scotia
had been brought in the new court²⁹ by the time it was abolished four years af-
ter its establishment.³⁰
THE FREE PORT ACT OF 1766
T D, lying midway between, and close to, the rich
French West Indian colonies of Guadeloupe and Martinique, was, in , a
British colony and subject as such to the British Navigation Act of , for-
bidding foreign vessels to import anything but silver and gold into the British
colonies.¹* If this act were amended to permit foreign vessels to bring produce
of foreign colonies into Dominica, the French islanders might well be tempted
to smuggle out sugar and other local produce in small vessels to Dominica in
defiance of French laws giving a monopoly or near monopoly of the trade of
these islands to France.²
In , the Rockingham administration sponsored passage of an act,³ the
Free Port Act of , Geo. III ch. , to hold out this temptation by amend-
ing the Navigation Act of to permit foreign vessels having not more than
one deck to import all produce except tobacco of the foreign colonies in Amer-
ica into two Dominican ports: Prince Ruperts Bay in northern Dominica, only
about fifty miles from Guadeloupe, and Roseau in southern Dominica, less
than fifty miles from Martinique.⁴
British North American merchant shipowners, who had long carried on a
flourishing but risky trade⁵ with Guadeloupe and Martinique would have had
reason to be grateful to Parliament for attracting sugar and other products of
these islands to Dominica, where British subjects could pick them up without
risk, provided they could be freely reexported from Dominica. But the Free
Port Act did not permit this.
* Andrew Jackson O’Shaughnessy, On Empire Divided: The American Revolution and the British Caribbean
(Philadelphia: University of Pennsylvania Press, ). [B.W.S.]
Section of the act prohibited reexportation from Dominica of foreign co-
lonial “wool, cotton wool [cotton], indigo, cochineal, fustic and all manner of
dying, drugs or woods, drugs used in medicine, hair, furrs, hides and skins, pot
and pearl ashes, whale fins [whalebone] and raw silk” to any place but Great
Britain, thereby forbidding export of these products to the British colonies.
Also section , though permitting carriage of the most important product of
the French islands, sugar, to European ports south of Cape Finisterre, limited
this permission to vessels built or owned in Great Britain, thereby excluding
colonial-built ships owned by colonial merchants from this carrying trade.⁶
Thus, the Free Port Act, as well as the Act of (described in Chapter ),
made a mockery, so far as the northern British colonies were concerned, of Sec-
retary of State Conway’s assurance (quoted in Chapter ) that in view of the
“kind, indulgent Disposition prevailing both in His Majesty & his Parliament,”
the colonists could count on the mother country’s giving “to the Trade & in-
terests of America every Relief which the true State of their Circumstances...
admits.”
GENERAL WRITS OF ASSISTANCE
I , Parliament passed the act of and Chas. II ch. “for prevent-
ing frauds and regulating abuses in his Majesty’s customs.”
Section of this act gave customs officers the right at any time to board ves-
sels, to search for, and to seize supposedly smuggled goods.
Section clause of the act gave “any person or persons,” including, of
course, customs officers, the right when “authorized by writ of assistance un-
der the seal of his majesty’s court of exchequer, to take a constable, headbor-
ough or other publick officer, inhabiting near unto the place, and in the day
time to enter, and go into any house, shop, cellar, warehouse or room or other
place, and in case of resistance to break open doors, chests, trunks and other
package, there to seize, and from there to bring any kind of goods or mer-
chandizes whatsoever prohibited and uncustomed, and to put and secure the
same in his majesty’s storehouse, in the port next to the place where such
seizure shall be made.”
This section, it will be observed, did not indicate whether the writ of assis-
tance to be issued by the Court of Exchequer was to be a special writ issued for
a particular search upon statement by the applicant under oath of the partic-
ular premises to be entered and the particular smuggled goods supposed to be
lodged there, or a general writ issued without statement as to any particular
premises to be entered or suspected goods to be searched for and running for
an indefinite time.¹ Customs officers naturally preferred general writs since
such writs spared them the bother of making repeated application for writs,
permitted them to act immediately on tips as to where smuggled goods were
thought to be concealed, and enabled them to make “fishing” raids at will.
The English Court of Exchequer had long granted such writs² when
Parliament in passed the act of and Wm. III ch. , to tighten en-
forcement of acts of Parliament dealing with colonial trade, section of which
provided that “the officers for collecting and managing his Majesty’s revenue,
and inspecting the plantation trade, in any of the said plantations [colonies]
shall have the same powers and authorities as are provided for the officers of
the customs in England by the said last mentioned act [the Act of quoted
above]...to enter houses or warehouses, to search for and seize such [prohib-
ited or uncustomed] goods....”
This section of the Act of , it will be noted, provided that customs offi-
cers should have the “same powers” as customs officers in England, which in-
cluded search of premises on land under writs of assistance issued by the En-
glish Court of Exchequer, but by this court alone. No provision was made in
the Act of for issuance of writs of assistance by colonial courts, and, so far
as is known, no colonial court assumed the power to issue writs of assistance
under this act³ until , when the Superior Court of Massachusetts issued
general writs to British customs officers in the colony,⁴ apparently on the as-
sumption that under a Massachusetts act of giving the Massachusetts
Court jurisdiction to act as a court of exchequer, it had authority to issue such
writs under section of the English Act of quoted above.⁵
Five years later, when the death of George II, during whose reign the exist-
ing writs in Massachusetts had been issued made it necessary for the customs
officers to apply for new writs,⁶ the authority of the Massachusetts Court to is-
sue general writs was challenged (February, ) by James Otis and Oxen-
bridge Thacher as counsel for a group of Massachusetts merchants. Thacher
argued that the English Court of Exchequer did not issue general writs and
that if the Massachusetts Court assumed authority to act as a court of exche-
quer it should follow the practice of the English Court in this respect and also
that an earlier decision of the Massachusetts Court renouncing the equity ju-
risdiction of the English Court of Exchequer indicated doubt whether the
Massachusetts Court had authority to act as a court of exchequer in any case.
Otis explicitly admitted the authority of the Massachusetts Court (whether as
a court of exchequer or otherwise) to issue special writs of assistance, but de-
nied its authority to issue general writs on the ground that if the English Acts
of and had expressly authorized the issuance of general writs (which
they did not), the acts must be held unconstitutional and void as being “against
natural Equity.”⁷
The Massachusetts Court, presided over by Chief Justice Thomas Hutchin-
son, reserved judgment pending inquiry into the practice of the English Court
of Exchequer and, when informed that, contrary to Thacher’s assertion, the
English Court issued general writs, decided (November, ) in favor of issu-
ing general writs, and thereupon issued several general writs similar to those
issued by the English Court.⁸
Presumably encouraged by the action of the Massachusetts Court, the Col-
lector of Customs at New London, Connecticut, in approached the Su-
perior Court of Connecticut for a writ of assistance, presumably a general writ,
but the court indicated that it had no authority to issue the requested writ.⁹
The Connecticut Court’s position was sustained by William De Grey, the
Crown’s Attorney-General in England, who gave an opinion dated October
, , that the Acts of and granted authority only to the English
Court of Exchequer to issue general writs of assistance, from which it followed
that these acts did not authorize any colonial courts to issue such writs.¹⁰
Section of the Townshend Act, Geo. III ch. (), referred to in
Chapter , was thereupon passed to give colonial superior courts the authority
which De Grey held they did not have under existing law.¹¹ Section stated
that “whereas by an act of parliament made in the fourteenth year of the reign
of King Charles the Second...it is lawful for any officer of his Majesty’s cus-
toms, authorized by writ of assistance under the seal of his Majesty’s court of ex-
chequer, to go into any house...or other place...and whereas by an act made
in the seventh and eighth years of the reign of King William the Third . . . it
is...enacted, that the officers...in America, shall have the same powers and
authorities to enter houses or warehouses...but no authority...[was] given
...by the said [latter] act, to any particular court to grant such writs of assis-
tance...be it enacted...That...[beginning November , ] such writs
. . . shall and may be granted by the...superior or supreme court of justice
having jurisdiction within such colony or plantation respectively.”
Pursuant to this act, the American Customs Board at Boston (discussed in
Chapter ) sent orders to customs officers throughout the colonies to secure
general writs.¹² However, despite the new act, the Connecticut Superior Court
still refused () to issue the requested writs, the Chief Justice, Jonathan
Trumbull, calling them “unconstitutional,”¹³ and the Chief Justice of the Su-
preme Court of Pennsylvania also flatly refused, stating, “I am not Warranted
by Law to issue any such Warrant.”¹⁴ The Supreme Courts of Rhode Island,
Maryland, and South Carolina reached the same result simply by taking no
action at all.¹⁵
The New York Supreme Court did, indeed, now issue writs to customs offi-
cers in New York, but even these differed materially from the general writs
granted by the English Court of Exchequer and the Massachusetts Superior
Court, in that the New York writs omitted the words “from time to time” and
“suspected to be concealed,”¹⁶ thus leaving open the question whether the writ
was good only for a particular search.
Again called upon for an opinion, De Grey held (August , ): “There
can be no doubt, but that the Superior Courts of Justice in America are bound
by the th Geo. d to issue such Writs of Assistance as the Court of Exchequer
in England issues in similar Cases, to the Officers of the Customs,” and rec-
ommended sending over to the several colonies “the Form of Writ issued by the
Court of Exchequer in England,” showing that these were general writs, i.e.,
writs “not granted upon a previous Information, nor to any particular Person,
nor on a special Occasion.”¹⁷
On the strength of this opinion and after consultation with Chief Justice
Hutchinson,¹⁸ the American Customs Board sent a circular letter in March,
, signed by the Board’s solicitor, to customs officers throughout the colo-
nies, enclosing “the Form of a Writ of Assistance to the Officers of the Customs,
as issued by the superior Court here [in Massachusetts]; likewise blank Forms
of the Writ, and a copy of the Opinion of the Attorney General in England in
relation thereto,” and requesting them to obtain similar writs from the supe-
rior courts of their several provinces.¹⁹
But apparently none of the colonial courts acted favorably on the letter. In
the Connecticut Superior Court referred the matter to the Legislature,²⁰
after which apparently nothing further was done.²¹ The New York Supreme
Court repeatedly deferred consideration of the matter to a later date and then
apparently dropped it.²² The Rhode Island Superior Court took the matter un-
der consideration, but apparently took no further action, and the South Car-
olina and Maryland Courts also continued to do nothing.²³
Furthermore, the Supreme Court of Pennsylvania again flatly refused to
grant a general writ, stating that it would grant “particular writs whenever they
are applied for upon oath” by the petitioning officer that he “either has an in-
formation or has reasons to believe that prohibited or uncustomed goods are
lodged in any particular place,” and no other.²⁴
The Virginia Superior Court, consisting of the Governor (Lord Botetourt)
and the provincial Council, approved a form of special writ prepared, at its re-
quest, by John Randolph, Attorney-General of Virginia; but the court refused
to grant the form of writ called for by the American Customs Board, because
such a writ “was too general;...the Writ ought not to be a standing one, but
granted from time to time, as the information of the Officer to the Supreme
Court, on oath, may render necessary.”²⁵
The grounds for this decision are indicated in a letter of January , ,
from John Randolph’s brother, Peyton Randolph, and other members of the