By Heather Rockwood, Communications Associate
In Part 1, the story began when Asa Nickerson drove his “iron” into an elusive whale while whaling in the Straits of Belle Isle. However, Lot Gage, captain from another ship, then also drove his iron into the whale. At some point, Nickerson’s line dislodged, and Gage harvested the profitable parts of the whale. Nickerson’s captain, Joseph Doane felt he was owed money and sued Gage for a one-eighth share in the profits from that whale. All of Cape Cod had opinions on who was in the right. At the same time, 2,000 troops of the Royal Army descended on Boston to quell rebellion and James Otis, Jr. had a fateful and lifechanging fight in a coffeehouse. The dramatic stage is set for the trial to take place in the Vice Admiralty Court.
The Vice Admiralty Courts were established in Massachusetts Bay Colony by the crown in 1697 to enforce the Acts of Trade and Navigation, with which England sought to control colonial commerce. The courts were open for the trial of ordinary civil maritime cases, but in Massachusetts it took the royal Admiralty judges nearly 20 years to overcome hostility aroused by the establishment and unfamiliarity with the new process. By 1720, the Admiralty had developed a solidly established tradition of common-law competence in maritime matters. This means most matters were settled outside of the Vice Admiralty Court except for seamen’s wages. Parliament expanded the jurisdiction of these courts in 1764. When the Townshend Acts were passed in 1767, the civil cases heard at this court were dramatically reduced while revenue cases increased sharply. The case of the whale was one of the six to eight civil cases heard that year.
There were at least 74 witnesses who had given depositions: 34 for Joseph Doane, the captain who was seeking his one-eighth share in the whale represented by John Adams, and 40 for Lot Gage, represented by James Otis, Jr., James Otis, Sr., and Robert Treat Paine. There were no live witnesses giving testimony. Instead, since the case was heard four years after the event, the counselors read out loud the depositions, paraphrasing or embellishing with explanation, comments, and arguments when needed. The case took six days to hear all arguments and testimonies.
John Adams, representing Doane, started by relaying the witnesses testification that in normal whaling practices, a boat was in possession of a whale when it was “fast” to it, or when the iron is still seated in the whale and the line was still in the boats control. A second boat then securing a line to the whale while the first is still fast was entitled to a one-eighth share if the first boat asked for assistance. If the first boat had not asked for assistance, the second boat had no rights to the whale. If, however, the first striker had lost control of their line, then the second striker had full possession of the whale.
Adams’ evidence showed that Nickerson had been fast to the whale when Gage struck, thus giving Doane possession of the whale. He also presented testimony that suggested physical impossibilities, inconsistencies, and dubious motives regarding Gage’s evidence.
Here is testimony from Robert Newcomb that seems to confirm that Gage struck the whale while Nickerson was fast to it:
“Robert Newcomb. Hove his Iron at her, did not fasten, hawled in his Iron. Nickerson shot in, and struck her, his Boat not more than 8 or 10 fathoms from mine. Nickersons Iron Pole the whole length above the Water. Nick. hove over his Coils of Warp and shipped his oars. Whale went down, in about a minute shot up again so near to Gage that I thought she would have stove his Boat. I, 40 yds. distance from Gage. Gage hove his Iron into her. Nothing parting us and Gage from the Whale but Nickersons Boat. Nick and Gage towed away together. About 4 Boat length 104 foot. Both fast to said Whale at the same Time, cant say how long. When Nick. struck her he saw the Whale and Iron Pole go down together.”
Paine followed Adams, attacking Doane’s case then used the testimonies to present evidence that Gage only struck after Nickerson’s line had disengaged. When he finished, Otis summed up the testimony presented.
Here is testimony from John Tarrow that confirms that no line was attached to the whale when Gage struck.
“John Tarrow. No. 3. With (John) Wheelden. The Whale went under Water, 8 or 10 Minutes. Saw no Boat fast when Gage struck.”
No record of the court decision has been discovered, however, the MHS holds a letter from Joseph Otis, James Otis, Jr.’s brother who was also a lawyer, to Robert Treat Paine on 12 February 1770 paying Paine £30 for his expenses in the whale case. Some people have assumed this means that the court judged in Gage’s favor. Although the only thing that was written about the end of the case was by Robert Treat Paine who noted “Whale case finished.” in his diary on 27 October 1769.
This court case drew my attention in the archives because of the drama that is present throughout. From the dramatic whale chase through the Straits of Belle Isle, to the strong opinions raised in Cape Cod, to John Adams and James Otis, Jr., friends, and colleagues on different sides of the case, and finally that the case has no verdict recorded. It is like watching an episode of Judge Judy but having to dig through archival records to find all the details. I have my opinions on the verdict, but unless more records are found, we may never know what the Vice Admiralty Court ruled.
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