Legal Papers of John Adams, volume 2
The courts of Vice Admiralty in the colonies had been established by the Crown in 1697 primarily to provide a forum for enforcement of the Acts of Trade and Navigation, with which England sought to control colonial commerce for the benefit of the Mother Country. The courts were, of course, open for the trial of ordinary civil maritime cases, but in Massachusetts it took the earliest royal Admiralty judges nearly twenty years to overcome hostility aroused by the establishment, and unfamiliarity with the new process. Thus, although by 1720 the Admiralty had a sizable civil business, there had developed a solidly established tradition of common-law competence in maritime matters, which kept the court from realizing its full potential. The court was further hampered by the common-law power to issue writs of prohibition, with which any respondent in a case that did not actually arise on the seas, or concern the wages and discipline of seamen, could stay the Admiralty proceedings. By this means, virtually all contracts for maritime services (other than seamen's wages), as well as torts occurring within a harbor, could be excluded from the jurisdiction.1
Thus, even in its busiest years, the Massachusetts Vice Admiralty Court had had few cases that did not involve seamen, or other matters traditionally within its competence. The bulk of maritime torts and contracts were sued upon at common law. After 1764, when Parliament expanded and strengthened Admiralty jurisdiction of violations of the Acts of Trade, the court's business declined to fifteen or twenty cases a year. Most of these were civil in nature, but the passage of the Townshend duties in 1767 and the heightened enforcement activities of the new American Board of Customs Commissioners beginning in 1768, which sharply increased the number of revenue cases in the court, reduced its civil business to about six or eight cases a year, and, after 1770, to one or two.2
69As far as can be determined, Adams had no case of any kind in the Court of Vice Admiralty before 1768.3 This may well be explained by the fact that the business of the court was so slight and the cases so un-remunerative that there was no room for another advocate at its bar. He had originally brought Doane v. Gage, his first known Admiralty case, at common law, but decided to proceed in Admiralty, apparently for convenience. Probably because of the decline in such business he seems never to have had another civil Admiralty case.
This dispute over the ownership of a whale taken at sea shows that the civil side of the Vice Admiralty Court was not altogether defunct in the 1760's, but the case is chiefly of interest for its wealth of detail on the techniques of whaling. The whale fishery was a major industry in 18th-century Massachusetts. Vessels from Nantucket, Dartmouth, Cape Cod, and Boston had by 1775 ranged the Atlantic from Baffin Bay and Greenland in the north, eastward to the Azores and the coast of Africa, and south to Brazil and the Falkland Islands, producing an annual catch worth about £200,000.4
In 1765 nearly a hundred Massachusetts vessels fished the Gulf of St. Lawrence and the Straits of Belle Isle, which lie between Newfoundland and Labrador. In the fleet were a number of Cape Cod whalers, including ships captained by Joseph Doane of Chatham and Lot Gage of Harwich.5 On 21 June the hunting was good in the Straits; a sizable number of boats from several vessels were in the water, and numerous whales had been sighted. One whale in particular had succeeded in eluding capture, until Asa Nickerson, commanding one of Doane's boats, drove his “iron” into it. The whale sounded with the line. At some point thereafter, Gage himself struck the same whale and Nickerson's line came free. Gage was able to maintain control over the whale, supervise the kill, and bring its marketable parts aboard ship.
70At once a dispute arose between Doane and Gage as to the ownership of the whale. There was much uncertainty as to whether Nickerson had struck it at all, and if he had, whether he had still been “fast” at the time that Gage had struck. The Cape Codders all took sides, some on the basis of long-standing political and social rivalries, others because of financial interest engendered by the flexible and temporary sharing of labor and profit among vessels known as “mateship.”6 Gage remained steadfast in the claim that the whale was entirely his, however, and some time after the return of the fleet to home waters Doane brought action against him.
Suit was commenced at law in the Inferior Court at Barnstable, where an entry in John Adams' docket dated June 1766 records that he was “spoke to,” that is, asked to serve as counsel.7 Numerous depositions were taken, but the case was not disposed of at this stage. It is possible that the common-law court declined to hear a matter so obviously within the Admiralty jurisdiction, but it seems more likely that some practical consideration, such as the desire to avoid a biased local jury, led Adams to withdraw the action at Barnstable in order to proceed in Admiralty.8 In any event, on 6 January 1768 the case of “Joseph Doane v. Lot Gage, rela. a Whale” was entered by Adams on the docket of the Vice Admiralty Court.9 James Otis represented the Gage interests, which apparently included his father, Col. James Otis of Barnstable.10 Adams and Otis agreed that depositions taken for the trial in Barnstable might be used in Admiralty and that further depositions might be taken, but the case was continued from time to time.11 71Finally, Robert Treat Paine, once briefly a whaler himself,12 joined Otis on Gage's side, and on 22 April 1769 the parties agreed to submit the matter to arbitrators.13 Since no notation to this effect appears in the Vice Admiralty Minute Book, it may be that the agreement was to discontinue and to arrange the arbitration privately rather than under a rule of court.
After a day of hearings in June and a further postponement in August, proceedings before the arbitrators commenced in earnest on 19 October 1769 at Brackett's tavern, with Adams arguing first.14 The chief legal issue was the nature of the right of possession in whales, a question of vital concern to the whaling industry throughout the 19th century and to most first-year law students today. At some point before the hearing Adams had made a series of extracts of civil-law authorities standing for the proposition that property in wild animals is acquired when they are taken into possession, but lost if the animals escape from possession and regain their natural liberty. While civil-law authorities have always been of great weight at common law in such questions, the fact that this was an Admiralty proceeding probably accounts for the exclusive reliance upon them here.15
In the first portion of the arbitration proceedings Adams concentrated on the application of these principles to the practices of the whale fishery. His witnesses to the customary law of whaling testified that a boat was considered in possession of a whale when it was “fast” to it, that is, when its iron was still seated in the whale and the line was still in the boat's control.
A second boat striking the whale while the first was fast was entitled to a one-eighth share if it had come in at a “call” from the first; if the fast boat had not requested assistance the second striker took nothing, even though the whale ultimately cast the first iron.16 If the whale became “loose” without having been struck a second time, the first striker lost possession and 72all claim to the whale, and a subsequent striker had full possession. Except for the grant of an eighth to the second striker, these rules are similar to the code epitomized by Melville in Moby Dick and observed by British and American courts dealing with the Greenland whale fishery then and for a century afterward. Adams' further argument that the adoption of custom strengthened rules designed to prevent disputes has also been followed in the courts.17
The real problems in the case were factual. Adams' evidence tended to show that Nickerson had been fast to the whale when Gage struck, thus giving Doane possession under the rules to which earlier witnesses had testified. Adams also introduced testimony which struck at the validity of Gage's evidence, suggesting physical impossibilities, inconsistencies, and dubious motives. Paine followed Adams, first attacking Doane's case, then putting in evidence to support Gage's theory that he had struck only after Nickerson had lost the whale and was hauling in his iron. When the evidence was in, Otis summed up the testimony presented.
Altogether there had been at least 74 witnesses—34 for Doane and 40 for Gage. Whether in deference to the civil-law procedure followed in the High Court of Admiralty in England, or for convenience in a hearing four years after the event, all of the testimony seems to have been in written form—either depositions or answers to interrogatories, which each side had served upon witnesses whose depositions showed their testimony to be crucial.18 Adams and Paine read these documents, or paraphrases of relevant portions of them, before the arbitrators, embellishing the reading with comments and arguments when appropriate. According to Paine's diary, 73six days were required for the hearing. Finally on 27 October he noted simply, “Whale case finished.”19 No record of the result has been found.
The materials that follow include Adams' notes of authorities (Document I) and his extensive minutes of the arbitration proceedings (Document II), as well as copies of the interrogatories prepared by both sides (Documents III, IV). The latter are of particular interest, because they show the crucial factual issues upon which counsel concentrated at the last stages of a long litigation. On the basis of these documents the reader may be able to form his own judgment as to who was entitled to the whale.
For a summary of the development of the jurisdiction in Massachusetts and of the common-law restrictions, see Wroth, “The Massachusetts Vice Admiralty Court,” in George A. Billias, ed., Law and Authority in Colonial America: Selected Essays (Barre, Mass., in press).
Complete figures on the court are not available for the years 1745–1765, because virtually all of its records for that period were destroyed in the Stamp Act riot, 1765. See Wroth, “The Massachusetts Vice Admiralty Court,” 6
Am. Jour. Legal Hist.
263–264 (1962). The business of the court, 1765–1772, can be estimated from the Minute Book for those years in the Office of the Clerk of the Supreme Judicial Court for Suffolk County, Boston. See p. 102–104, notes 17, 22, 24 below. Development of the court's revenue jurisdiction is summarized at p. 98–106 below.
JA first mentioned being at the Admiralty Court in a diary entry of 30 Jan. 1768, which was after the commencement of Doane v. Gage there. 1 JA, Diary and Autobiography
337–338; see text at note 9 below.
See Edouard Stackpole, The Sea-Hunters 30–65 (Phila., 1953); Alexander Starbuck, History of the American Whale Fishery 19–77 (Waltham, Mass., 1878). For the market value, see Thomas Jefferson, “Memoranda,” Oct. 1788, 14 Jefferson, Papers, ed. Boyd, 226–234; Thomas Jefferson, “Report to the House on the Cod and Whale Fisheries,” 1 Feb. 1791, in H.R. Misc. Doc. No. 32, 42d Cong., 2d sess. (1872); Obed Macy, The History of Nantucket 70–72, 233 (Boston, 1835). JA was also concerned with the American whaling industry during his diplomatic career. See 3 JA, Diary and Autobiography
83–84.
See Boston News-Letter, 8 Aug. 1765, p. 3, col. 1. Doane (c. 1720–1778) held a variety of public offices in Chatham, kept a public house there “of great benefit to the fishery,” and found time to participate in the annual whaling voyages. See Alfred A. Doane, The Doane Family 136 (Boston, 1902); 17 A&R 552; 18 A&R 453, 675. He was also involved in two later JA cases, No. 57 and No. 58. Lot Gage was an incorporator of the Second Parish of Harwich in 1746. Frederick Freeman, The History of Cape Cod, 2:513 (Boston, 1869).
See Stackpole, Sea-Hunters 42, 51. See also notes
JA, Docket, June 1764–Oct. 1767. Adams Papers, Microfilms, Reel No. 182. The entry, which is nearly illegible, may read “Jonathan” Doane, but if that reading is correct, it is probably an error on JA's part. That the case was first entered in the Barnstable court is established by the agreement regarding depositions from that court in note 11 below.
Other whale cases in the Superior Court files are inconclusive on the jurisdictional point. Dyer v. Doane, SF 144072, SCJ Rec. 1757–1759, fol. 325 (Barnstable, 1758), was an action of trover for a whale allegedly struck by the plaintiff in Cape Cod Harbor and taken up on shore by the defendant, who won the verdict. In Bassett v. Jenkins, SF 144166, SCJ Rec. 1763–1764, fol. 245 (Barnstable, 1764), trover for a whale struck in the St. Lawrence, the defendant prevailed on a motion in arrest of judgment, apparently on a pleading defect unrelated to the jurisdictional question. The problem of location could be avoided in any event by alleging a fictitious venue within the Province, which was done in Bassett v. Jenkins.
Vice Adm. Min. Bk., 6 Jan. 1768.
As to Otis, see note
The agreement, dating from March 1768, provides “That Each Party shall have Liberty to use the Depositions heretofore taken to Be used in the Inferior Court of Common Pleas at Barnstable and all the Evidences heretofore Taken In Perpetuam Reis Memoriam: and to Take any others that may Be Wanted In the same Manner: and that all such Depositions shall be Considered as having the same Weight as If the Deponants were Dead Gone to Sea &c. and were Regularly taken.” A supplement, dated “In Court,” 15 Dec. 1768, provided that any further depositions thought necessary should be taken before two Justices of the Peace in Barnstable, “whether taken in Perpetuam or in the Common form, the Adverse Party to be notified.” MHi:Waterston Collection. See note
On a voyage to Greenland in 1754. See 12 Sibley-Shipton, Harvard Graduates
465.
Paine Diary, 19 Jan., 22 April 1769.
Paine Diary, 20, 21 June, 10 Aug., 19 Oct. 1769. In his own diary under the last date, JA noted, “The morning at Brackett's upon the Case of the Whale.” 1 JA, Diary and Autobiography
344. “Brackett's” was undoubtedly the Cromwell's Head, an inn on School Street in Boston kept by Joshua Bracket, where such proceedings were commonly held. See Rowe, Letters and Diary
127; Thwing, Crooked and Narrow Streets
109; Drake, History and Antiquities of Boston
807. JA apparently had the assistance of an unidentified lawyer, whose notes on the case are found with his. See note
The common-law position on wild animals is typified by Kent, Commentaries
*348–350. As to the Admiralty as a civil-law jurisdiction, see JA's argument in No. 46. From the beginning of his legal career he had read extensively in the civil law. See 1 JA, Diary and Autobiography
44, 55–57, 173–174.
The statement in 1 JA, Diary and Autobiography
344 note, that Doane as first striker would be entitled only to an eighth upon losing the whale is thus erroneous.
Melville's formulation was:
“But though no other nation [except Holland] has ever had any written whaling law, yet the American fishermen have been their own legislators and lawyers in this matter. They have provided a system which for terse comprehensiveness surpasses Justinian's Pandects and the By-laws of the Chinese Society for the Suppression of Meddling with other People's Business. . . . “I. A Fast-Fish belongs to the party fast to it. “II. A Loose-Fish is fair game for anybody who can soonest catch it.” Herman Melville,
Moby Dick (Chapter 88) 393–394 (N.Y., 1950).
See also William Scoresby, An Account of the Arctic Regions, 2:318–328 (Edinburgh, 1820). Compare Aberdeen Arctic Co. v. Sutter, 4 Macq. 355 (H.L. 1862); Addison v. Row, 3 Paton App. 334 (H.L. 1794). Different whaling areas had local customs differing from those of the Greenland fishery, but the courts have applied them on the theory enunciated by JA. See Oliver Wendell Holmes, The Common Law 167–168 (Cambridge, Mass., ed. Mark DeWolfe Howe, 1963), and cases there cited. See also note
For the English Admiralty practice, see No. 46, notes 35, 63. Depositions were apparently taken both during the common law proceeding and after, under the agreements cited, note 11 above. See notes
Paine Diary, 27 Oct. 1769.
1768
Grotius B. 2, Chap. 8, §. 2. How long Beasts Birds and Fishes, may be said to be no Body's, admits of some Dispute.2
§. 3. “The Roman Lawyers say, We lose our Property in wild Beasts, as soon as ever they recover their natural Liberty: But in all other Things the Property acquired by Possession does not cease with the Loss of Possession. Nay it gives us a Right even to claim and recover our Possession. And Whether they be taken away from us by another, or get away of themselves, as a fugitive slave, it is all one.”3
Inst. Lib. 2, Tit. 1, §. 12. “De rerum divisione et de
§. 13. “Illud quaesitum est, an si Fera Bestia ita vulnerata sit, ut capi possit, statim tua esse intelligatur. Et, quibusdam placuit, statim esse tuam et eousque tuam videri donec eam persequaris. Quod si defieris persequi: definere esse tuam, et rursus fieri occupantis. Alii vero putaverant non aliter tuam esse quam si eam ceperis. Sed posteriorem sententiam nos confirmamus, quod multa evidere soleant ut eam non capias.”5
Vid. same Law in same Words: Digest Lib. 41. Tit. 1. “De adquirendo Rerum Dominio.”6
§. 5. “Naturalem &c. illud quaesitum est an fera bestia, quae ita vulnerata sit, ut capi possit statim nostra esse intelligatur. Trebatio placuit statim nostram esse, et eo usque nostram videri donec eam persequamur. Quod si defierimus eam persequi: definere nostram esse, et rursus fieri occupantis. Itaque si per hoc tempus, quo eam persequimur, alius eam ceperit eo animo ut ipse lucrifacerit: furtum
In JA's hand. Adams Papers, Microfilms, Reel No. 184.
Hugo Grotius, The Rights of War and Peace (London, 1738). The passage reads: “And to this Head [the Seizure or Possession of Things that have no Owner], in the first Place, is referred the Catching of Beasts, Birds, and Fish. But how long all these may be said to be no Body's, admits of some Dispute.” Id. at 248. The remainder of the section deals with the question whether the owner of an enclosed forest or lake has a property in the wild animals therein.
Grotius, War and Peace, bk. 2, ch. 8, §3. Quotation marks supplied.
This and the next paragraph are from the “Of the different kinds of things and of acquiring dominion of them. . . . Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. [So far as the occupant's title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it.” Institutes of Justinian, that summa of the Roman law which is the basis of all civilian studies. The edition used by JA cannot be determined, but the fact that he also quoted the Digest, note Corpus Juris Civilis, in which all of the works attributed to Justinian are contained. The passages here have been collated with Corpus Juris Civilis (Altenburg, ed. C. H. Freiesleben, 1751). Quotation marks have been supplied. The translation of the passage quoted here follows, with a sentence omitted by JA given in brackets.
The Institutes of Justinian 37 (Oxford, transl. J. B. Moyle, 1913).
The translation of bk. 2, tit. 1, §13 of the “It has been doubted whether a wild animal becomes your property immediately you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of anyone who catches it: others have been of opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it.” Institutes is as follows:
Institutes, transl. Moyle, 37.
Justinian, Digest, bk. 41, tit. 1, also collated with the text of Freiesleben, note Institutes quoted by JA, note
“The following question has been asked: when a wild beast is so wounded that it could be taken, does the person [who wounded it] immediately become owner? Trebatius was of opinion that he did immediately, and that he must be held to retain the ownership so long as he kept on following the animal up, but that, if he relinquished the pursuit, his ownership ceased and the animal would once more become the property of whoever took it; so that if, at any moment while the pursuit lasted, some other person should capture it with a view to his own profit, he must be held to have committed a theft on the person first mentioned. A good many authorities hold that the party does not become owner unless he captures it, because there is a considerable chance of the capture not being made; and this is a better view to take.” Digest, bk. 41, tit. I, §5. The sentence which JA sums up as “&c.” is the same as the last sentence of §12 of the Institutes, note Institutes, note
De Adquirendo: Translation of Justinian's Digest, Book 41, Title 1, 3 (Cambridge, transl. C. H. Monro, 1900).
1769-10
Silvanus Snow and Amos Knowles. Captains. Have been long acquainted with the Customs of Whaling. If A. strikes a Whale, and B. puts in a 2nd. Iron upon a Call or Swing, from A. or otherwise and A's Iron draws, the Whale is in the Possession of A. the first striker.
Knowles to the Mateship and Value of the Whale.3
Gamaliel and Barzillai Smith. It was the Custom 1765 at Streights of Bellisle, that if A. struck a Whale, and made a Swing, B. getting an Iron in was intituled to an Eighth. Several Instances last Year, of Whales struck with only an Iron and naked Warp, and they that struck em again had 1/8, by arbitration. The Custom also, that if A struck a Whale, and she drawed his Iron he had no Right, except B's Iron was in before she was loose, by a Call. The common Custom, the first Striker is in Possession while he is fast if it were but for a Minute.
Nathan Hopkins saith, there was a Dispute or Controversy between Doane and Gage, about a Whale killed the day before, and Gage had in Possession. Doane said He was the first Striker and that his Boat was fast to her, when Gage put in his Iron. Gage said she was a loose Whale when he struck her. Doane desired to leave it to Whalemen on the Spot. Gage refused. Doane demanded his Part according to Custom would not be at Charge for Trying, Freight, or Barvell.
4 Gage would do nothing, but said his owner might dispute it at Home. Deponent and David Welts called as Witnesses to the offer and Demand. Custom that 2d. Iron called by 1st has an 1/8.
David Welts to the same Purpose.5
These 5 deponents sufficient to ascertain the Custom. The Customs of Whaling are certain Regulations dictated by observation, Experience, of Common Sense among Whalemen. They are the Result of the Common Sense of Whalemen. And this Regulation among the Whalemen at the Streights seems to be a wise, prudent, and equitable one. Some Rule, and Law, they must have, to avoid everlasting Contention. What better Rule can they have than this that the first striker shall have the Game?6
77Witnesses to the Facts. 8 in Point. Jesse Newcomb and John Chase.
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.
Silas Newcomb. We hove at a Whale, but did not fasten, so we haled in our Iron. Nick. shot in, and struck her, and hove over his Coils of Warp. The Whale went down, and as she rose, Gage met her, and hove his Iron into her. Nothing parting us and Gage but the Whale and Boat. Nick. and Gage towed away together 2 boats Length. Nick.'s Iron struck the Whale above Water his Boat 12 or 15 fathoms from ours. Gage 40 Yds. when he put his Iron. When Nick. struck I saw the Whale and Iron Pole go down together. I saw the shank of Nick's Iron was bent as if it had been fastend in a Whale.7
Atkins Smith. In the Boat with Silas Newcomb. Hove and missed and hawled in our Warp. Nick. shot in, and struck her and hove over his Coils of Warp. The Whale went down and as she rose, Gage met her and hove his Iron into her, nothing parting Gage and us, but Whale and Nickersons Boat. I then saw both tow. Then several Questions and answers passed before Gage forbid any Person, and after that We saw Nickerson loose. Saw Nick. Boat come in Tow after the Whale with the oars shipped in. They both towed together, and then I
Edward Cook. In the Boat with Silas Newcomb. Hove and missed. Hawled in the Iron. Nick. shot in and struck her and hove over his Coils of Warp that lay on the Head of the Boat. Then the Whale went down, and as she rose again Gage met her and hove his Iron into her, nothing parting Us, and Gage, but Whale and Nickersons Boat. Saw Nick's Boat come in Tow after the Whale with his oars shipped in, and Nick and Gage towed away together 2 Rods at least while I looked on.
Note these 4. Witnesses, Rob. and Silas Newcomb, Atkins Smith and Ed. Cook. are all direct and possitive to the Point. They were all in one Boat—all very near to the Whale and to Nick. and Gage: it was a Whale that they had hove at but a minute before, and therefore the more likely to observe attentively. They all agree, that they hove at the Whale first, missed and haled in their Iron—that Nickerson instantly upon their missing of her, shot in upon her—hove at her and struck her and fastened to her. That the Whale upon being struck by Nickerson went down under Water, and soon after came up near Gage's Boat—so near that they thought she would have stove him as Rob. Newcomb swears—that Gage threw his Iron into her, without any Call from Nick. and both Boats towed away together. They can none of them say exactly how long.
Joseph Cable. In Newcombs Boat. Silas Newcomb steersman and Robert Harponier. Our HarpNick. hove his Iron into the Whale and made fast to her. Gage came up, in 2 minutes and hove his in. The Whale run, and both Boats towed sharp for a minute and half. Then Nicks Iron drew. Plain to be seen—within 30 Yds. of the Whale.9
Edmund Freeman. A Dispute between Doane and Gage. Newcomb said he was close by, and looked right on and saw both under Tow together. Dispute whether an Indian or Nickerson was Endsman, and Newcomb right and Gage wrong. Custom to leave such disputes to Arbitration.
Archelaus Harding. Mayo's Steersman. Nick. struck the Whale sometime before Gage, and continued fast to her untill Gage was fast and sometime after Whale winded Nickersons Boat round, and upon a Turn the Whale hove out Nicks Iron. Still he followd and worked upon her till dead. I viewed her, and found an Iron Hole in which was no Iron. A warps Length off when Nick. struck. Whelden farther off.
From this Deposition it seems that Gages putting in his Iron, made the Whale shift her Course turn Nickersons Boat quite round, and in turning, hove out his Iron. So that Gage's striking the Whale when in Nickersons Possession was the Cause why his Iron drew and if Gage had not struck her Nickerson would probably have continued fast till he could have put in more Irons.
Elisha Linnell in Wheldens Boat with him and Eldridge. Saw Gage put in his Iron, several other Boats near, one of them being Nick. Not above 15 fathoms from Gages Boat when Gage struck the Whale. Never saw Nick hawling in his Iron—nor heard Whelden say so. Not till We arrived at N. England. Nick. pursued and assisted in killing the Whale and insisted she was his Property as the first striker. And fast when Gage put in his Iron.
Vid. Saml. Linnells Deposition vs. this.10
Captn. Joshua Harding. In Conversation with Jno. Wheelden, a few days after the whale was killed Wheelden told him, that if the Dispute was left to him as an Arbitrator, he should give Part of the Whale to Mayhew11 and Part to Doane. He saw an Hole, that he thought and still thinks an Iron Hole.
Josh. Bassitt, Harponier to Jno. Crowell, and belonged to Wheel-80dens Vessell. Swears, that when the Boats were close upon the Whale, he was 200 Rods distant, and that he could not know one Boat, nor Man from another. Near 30 Boats between him and Whale. And he saw Nickerson, with Gage and others at Work on the Whale after he came up. Heard none of the Crew say, that Nicks Iron was out when Gage struck, or that the whole whale belongd to Gage.12
James Wallace. An oarsman to Crowell. By Reason of the Distance could not know one Man nor Boat from another, when the whale was struck who struck the Whale. On his coming on Board, the People in Wheeldens Boat told him the Whale belonged to the Doans. Elisha Linnell told him so in particular.
Captn. Micajah Sears. Wheelden or some of his Head Men on board their Vessell told me, that they were nigh the Whale when struck, and by what they saw, they thought she belonged to Captn. Doane. This was the general Talk on board Captn. Wheeldens Vessell, at that Time, and no Contradiction to it.
Robt. Homer. Master of a Voyage. In a Boat with Seth Baker and Jno. Cash. 1/3 of a Mile off, and 10 or 12 Boats nearer than ours. We were not near enough to distinguish the Persons, or know one Man or Boat from another. Took it to be the opinion of the whole Crew that the whale belongd to the Doans and heard Wheelden and others say so. And fully expected that Wheeldens Evidence would have been for Doane.
Jesse Newcomb, now a Master. He was in the Boat with the 2 Newcombs. Nickerson hove and fastend above Water. Saw 2 Boats tow, one of 'em the Indian Boat.13 I thought I saw the Iron enter the Whale. Saw 2 Boats tow together about 50 Yards. The general Voice of the People it was Doanes Whale in other Boats besides his.
Jno. Chase. Saw Nick, deliver his Iron at the Whale and throw the Coils out of the Head of his Boat. And saw Gage give the 2d. Iron. Then saw Nicks Boat, wheeled or winded round. Heard Gage I think say Nickerson veer out your Warp.
14 Both towed away together about 100 yards. Then saw Nick. loose. Nick killed the Whale by lancing her. Saw him launce her in a good Place, and she spouted Blood immediately.
Vid. Depositions of Saml. Howland, Benja. Bussley, Elijah Blush 81vs. Jno. Chase's deposition. Attempts to prove him distracted but no Lyar. Blush says, never heard any Body say but Chase was a Man of Truth.15
David Welts. Heard Doane offer Gage to leave the Dispute to Men.
Additional Evidence. Examine this Deposition if reyled on of the other side.16
Timothy Right, Simeon Tobey and Jona. Child, to be put in Ballance vs. Amos Otis's Deposition.17
Captn. Nat, Ellis. Vox Populi.
Benja. Fessenden. Adams blamed Gage for not leaving the affair to Men because several Persons on the Spot were positive that Nickersons Iron was fast when Gage hove in his. Edd. Dillingham Ditto.
Chillingsworth Foster. Never heard but Chase was a Man of Truth.
Thos. Mayo. Gage took the whale away by Force.
Nathl. Bassett a Deacon, Jabez Crowell and Barnabas Eldridge Depositions vs. Zechariah Smalleys Deposition.
Reuben Doane, Barnabas Chase, and
Saml. Burgess. Gage said there was Nickersons Boat and his and they wanted no Help. And that Nickerson claims Part in the Whale then spouting Blood.
Mem. Captn. Jasher Taylor confessed before the arbitrators last June18 that Richard Godfrey one of Nickersons Mate Boats19 did put an Iron into the Whale after Nickersons drew, and it remained in till she was dead.
David Okelly, one of Gages Depositions20 says that Nicks Boat and Gage's Boat were partly crossing each other, just before he heard 82Captn. Tayler say that Gage was fast. Which agrees with our Witnesses and militates with theirs.
Mr. Paine.
21 One Rule in our favor. We are in Possession and Possession is a good Title, untill a Person demands who has an absolute Right.
Q. Who the first Occupant?
Custom. Evidence dont support the Proposition. The Witnesses seem to evade the Point. Odd Custom. (Meaning I suppose not reasonable).
Inconsistencies and Contradictions in our22 Depositions. Sufficient to destroy them.
6 Witnesses in the same Boat, not so good, as in different Boats.
Rob. Newcombs Deposition. Inconsistency in the situation. 40 yards distance. Nothing parting us and Gage from the Whale but Nick
Nickersons24 transient View, of Nickersons halling in his Warp.
Silas Newcombs Account different about parting &c. us and Gage from the Whale, &c.
Confused and disorderly in that Boat, so that they could not observe truly.
Differ about the Distance, the fathoms.
Silas says he never saw the Iron Pole afterwards.
Answer, not till I saw Nickerson hawl it into his Boat. Then the Iron was bent.25 Contradiction.
Robt. saw the Iron Pole the whole Length above Water. This Otis says inconsistent with Silas's Account of the Whale and Iron Pole going down together.
26
Silas says 60 or 70 foot from Nick, when he hawl'd in his Iron, 12 or 15 fathom when he struck, 60 or 70 fathom.
83
Iron might be bent, i.e. might be fastend and bent and drawn before Gage enterd. Answer true, but prooves the fastening. Might be bent on Purpose. Needle and Barn.
27
Silas says 18 yds. Rob. 36. Silas 50. That the 2 Boats towd together.
Arch. Harding. No. 7. Differs from all in Newcombs Boat, about the Position. He says Nick, and Gage met the Whale Head and Head. This Deposition a finished Piece of Cookery.
There might be an Iron Hole, and yet Nick, never fast, for Mayo might have been fast to her.
Mayo did not know who struck. Harding did. How could this be— one says a quarter of Mile, the other a Warps Length.
Jno. Chases dont mention the Whales going down. Whalemen remember as exactly as Hunters.
Their Witnesses to invalidate ours.28
Mayo and Harding. Barnabas Tayler. A Minor. Mayo said He would clear from Doane for a Trifle. Never heard Mayo say he saw an Iron hole. Saw Adams &c. try several Holes &c. Did not hear any Body talk about an Iron Hole.
Jacob Hawes, a Lad. 3 Papers. Tayler desired Doane to come and view and see if he could find an Iron Hole, to claim her by. I search'd, and found no Holes, but what Irons were taken out at. Nick, worked, 'tho forbid. Saw Nick. and Indian change Ends. Saw Godfrey offer to tow, being a Party to Doane's side. Gage refused unless a free will offering.
29
Levi Bearse, No. 16, a Lad in Adams's Boat. See Nick'. launce her diverse Times, and heard that Godfrey put an Iron in.
David OKelly, a Lad. No. Whale and Nickersons Boat crossing each other. Militates with Wheelden.30
Josa. Knowles. No. 8. with Syl Hopkins. Silas Newcomb in a Passion. Damning the freemasons.
Thos. Chase. No. 28. Heard Silas Newcomb say, he did say the D—l take the freemasons. Hawld in his steering oars.
Abner Chase the same as Thos. Chase. Said he did not row any farther to the best of my Remembrance.
Amos Knowles Jnr. No. 22. Robt. and Silas Newcomb both told me, Whale turned off, and Lot Gage struck the Whale directly. Nothing of Nick's striking in March 1766 in Kings Road that Doanes Boat struck her &c. They said that Doane was so unfair with them that they had rather Gage should have the Whale than they.
Amos Otis. Have since understood, that Adams run foul of Lot Gage. And heard a Voice to Adams to veer Warp. The Whale as near again to the Newcombs as they to me. Yet heard the Disturbance in their Boat. Adams told him he ran foul of Gage—did not see Gage fast—that Adams and Gage both in one—Newcomb more noisy than common. Heard several People say there come the crazy Newcombs. Heard Silas was crazy, after he came home.31
Saml. Howland vs. Jno. Chase. Same Boat—thought Nick's was not fast. No Way ahead.32 Saw Nick. hauling Warp when Gage struck. Jno. Chase out of his Head sometimes—jumped overboard. Not a lying fellow—behaved well that day. To the best of my Remembrance he seemed to signify, that Gage had the best Right.
33
Elijah Blush. No. 36 . vs. Jno. Chase. Never call'd a Lyar that I know of.
Lem'. Crocker. Chase got overboard, stripped off his Cloaths &c.
Asa Croker to the same fact.
Jona. Bassett. No. 30. vs. Jno. Chase. With Josa. Godfrey. Jno. Chase Harpoonier. Never heard Chase say that Nick struck. Knew nothing of Chases Truth &c.
W
Boat came along close to our Boat
Whale came along with Gage close to our Boat no other fast to her. Saw no 2d Iron put in.
Benja. Busseley No. 17 vs. Jno. Chase. Heard Josa. Godfrey ask who struck first &c. and him and Jno. Chase talk about it after. I heard him Godfrey say, he could not tell who would get the Whale, but he believd it belonged to Gage. Chase said it was devlish strange, they could not tell who struck at first. One time he said he believd that Gage struck the Whale first. Understood by him or others, that Gage was up or near up in the Chase. Paine says he said he was far off.
34
Saml. Linnell Junr.
John Wheelden. No. 1. 3 Papers. Vid.35 and Vide Micajah Siers. As explicit as any of our side, and Wheelden wasnt.36
86
Barnabas Eldridge. No. 2. Not acquainted with Nick at that time. Indian in the Head when I first saw that Boat. Both Nicks and New-combs 6 handed Boats.37
John Tarrow. No. 3. With Wheelden. The Whale went under Water, 8 or 10 Minutes. Saw no Boat fast when Gage struck.38
Jno. Wheelden Junr. No. 4. Not fast for Boat had no Way a head. The Whale under swift way. Clear that the loose Whale.39
Jno. Crowell.
40 No. 5. 3 Papers. In another Boat in the Stern. According to my apprehension Nick. missed, because not under tow. About 50 or 60 fathom, before Gage struck. Wallace's Character not 88good for Truth.41
Boats all round cant tell the Number. Afterwards told it was Nickerson. Dispute between Wheelden and Homer.42
Silvanus Hopkins. Conclude missed her because his Iron Pole when
Wm. Clark, same Boat No. 7. Saw Gage fast and no other.44
Seth Baker, in another Boat. Jno. Cash his Harpoonier. Dont know Nick. Knows there was no Boat fast when Gage struck. Vid. this Deposition (Mem. not the same Whale). Saw no Indian in that Boat, that struck and hawld in Iron before Gage struck.
Jno. Cash. 2 Papers. No. 13. Encouraged to row, by being told several had hove and missed. No other Boat fast but Gage, no other towed away with him. Steersman said he saw one quoiling in his Warp. Heard of Difference between Homer and Baker.45
Zechariah Smalley. Nota. And several Depositions vs. this.
Levi Bearse. Additional Evidence, No. 16. A Man said We had better go aboard and git some Victuals for we were never fast. Nick— d—n your Blood hold your Tongue. Q. Who was that Man, that was so hungry. ¼ an Hour after the Whale was dead. Mem. never mentioned it before to any Body.
Jno. Bartlet, David Rider, Thos. Rider, Jno. Thatcher all to Wheeldens Character. Bartlett rather to shew that he told the same story 3 years before.
Isaiah Eldridge. 14 Years an Endsman, a Boat would go 15 Rods, after the oars still, in a smooth sea.
Nathl. Delano. 12 or 16 Rods and have considerable Force.
Saml. Tayler, a Minor, Son to Jasher. Doane said I would not give a Copper for our Chance, but We may scare 'em and make em leave it to Men. Mem. at Law.
Gideon Baty. Sears said they did not strike fasten so as to bring the Boat fairly under tow.
John Lothrop. A Minor. Doane desired Tayler to search the Whale well when he cutt her up.
James Gage. Doane said, if it had not been for setters on he should not have been concerned. Would not give a Copper for an Iron Hole. Brother to Lot Gage.
Jno. Gage Jnr.
Joh. Bassett. Did not know Nick. Explanatory of his Deposition of our side.46 In the Boat with Crowell.
Seth Whelden Jnr. about Homer &c. Dispute between Homer and Whelden.
David Welts.
47 Custom vid. &c.
Paine. 2 Boats Newcombs and Wheeldens the most positive.
Our Boat the nearest. In the best situation to observe, calm &c. Newcombs, disappointed, tumultuous and inattentive.
Whelden a Man of good Character for Truth.
Our Witnesses as positive, as explicit, as circumstantial as theirs and more so.
More necessary to suppose our Witnesses perjured, if their accounts not true, than to suppose theirs so, if theirs not.
Iron being bent. Silas mistaken. For no Person takes Notice of this but Silas. Oar crooked coming out of Water.
Calling to Adams or to Nick.
The Iron Pole above Water. Mem. Hopkins concluded one missed because his Iron Pole went under Water.
4. Witnesses in Wheeldens Boat, and more to be believed than our 8. Crowell says that the Whale went 50 &c.or 60 fathom before Gage struck, and concludes Nick missed because
Hopkins says she was a loose Whale.
Haws saw Nick hawl in his Iron before somebody told him that Gage was fast.
Cash says Whale towed Gage and no other Boat.
Seth Baker says, Gage was the first that fastnd, and that no other Boat was in Tow.
S. Howland in the Boat with Chase—thought Nick. not fast and saw Nick. hawl in his Warp before Gage struck.
11. Witnesses from 5 or 6 Boats. Positive to the fact in Paines favour he says.
All the rest of the Evidence to corroborate or invalidate these Testimonies.
Mayo's Evidence of the Iron hole.
Turning or winding round, she might have a sheer given her.
Doane would not examine for Iron Holes.
Zech. Smalleys Deposition. Vid.
Mr. Otis.
Gage
48 if by Custom then not by Equity.
The Rule about positive and Negative Witnesses,49 has Exceptions, e.g. 20 Witnesses that heard no Pistol 2 did &c.
Our Witnesses have recollected themselves at a great Distance from the Time.
But one Witness that saw the Iron Pole sticking up above Water, and but one that saw the Iron bent. Impossible but that other People should have seen these facts if true.
Towed away together. They speak of this in a manner and in Language that all Whalemen must laugh at.
Eldridge looked round, therefore was up and might have seen the Iron Pole above Water.
Nota. Iron Pole came above Water as we pasd Nickerson. Mistakes Newcombs.
Tarrow, an Indian with Whelden. Missed because not a sufficient way of Head. Mem. liable to mistake Newcombs for Nick. not know-91ing either at the time. Tarrow dont agree with Whelden about the general Call.
Stray of the Warp, as streight as an arrow, enough for a Rope dancer.
Jesse Newcomb, thinks she ran ¼ of a Mile.
Jno. Crowell in the stern of Jo. Bassetts Boat. Saw a Man which afterwards proved to be Nick. Missed because not way of Head enough. Vid. James Wallace's Deposition.
Syl. Hopkins. Missd. because Iron and Pole went all under Water. Newcombs. Soon after saw Gage. Never saw Nick throw. Proof that he had a very carefullless View.
Otis says, if Nick. struck so notoriously, he must have seen it and the Iron Pole above Water. I say, it proves he had no good View.50
Josa. Knowles, and a No. of Witnesses swear that Silas was d——g the freemasons and his Boat in Confusion.
David OKelly a Minor with Jasher Tayler. Whale and Nicks Boat crossing each other. Nicks no Way of Head. Tayler desird Doane to come and see her cutt up and search for Iron Holes.
Otis confounds Nick. with Doane, when he blames for not viewing the Whale for Iron Holes.51
Why did not they view the Whale.
We fail in the essential fact that both Boats fast together. No Evidence of this. Answer 8 Witnesses are some Evidence.52
Jacob Hawes. A Minor. At the stern Nick pulling his Iron into the Boat. Saw Newcombs at a considerable distance to the stern of our Boat. Offer to come and view, when cut up, or turnd over.
Saml. Howland in Godfreys Boat with Chase. Very sure Nick hauling in his Warp before Gage struck.
Seth Baker Harponier Steersman to Jno. Cash. Whale run a Quarter of a Mile. &c. Knows not Nick nor Gage. Saw em haul in his Iron. Round by the last Boat that hove before Gage, while she was coiling in her Warp in the Bow of the Boat. Much about Robert Homer.
Jno. Cash. Much about Robert Homer. &c.
Amos Otis. These advantageously sit
Zech. Smalley. What Nick. told him. Did not care to say, he was fast.
92Levi Bearce, a Minor. In Adam's Boat. About 40 Rods from the Whale when Gage struck. Mayo said if they would give him a Piece he would prove the Doanes were not fast. This Deposition confirmed by OKelly and Haws's.
Busseley to Wheldens Character and Consistency.
Bartlett Ditto.
Josa. Eldridge54 and Delano. Construction of a Whale boat.
Amos Knowles Jnr.
22. to the Character of Whelden and that Newcomb said Gage struck her directly, after they missd her. Rather Gage should have her than Doane.
Saml. Tayler. Doane said he would not give one Copper for our Chances, but We may scare 'em to leave it to Men.
Baty. Something like the former.
Jno. Lothrop. Heard Tayler tell Doane to come and search the Whale, and Doane said Well Well, do you search her well.
Saml. Linnell. Vs. Elisha Linnell. Heard Elisha say he saw Doanes Boat halling in his Iron and that she was Gages clear enough.
Barnabas Tayler. Like OKelly's.
Thos. Chase 28. vs. Silas Newcomb. D—l take the Freemasons. Otis said bro't to shew that Newcomb told a different story. But no such matter.55
Jona. Bassett. Did not see any Boat fast, when Gage struck.
Lem. Crocker 31. vs. Jno. Chase that he was delirious at Times. But no Lyar.
James Gage. General Gage's Talk. Dont care for an Iron Hole.
Jno. Gage. The Iron came up at the Stern of the Boat of Newcombs not Nicks.
Jo. Bassett. Both sides.
Elisha Blush.56 General Talk.
37. Seth Whelden. Conversation with Homer and general Talk.
38. David Welts. Custom. I took it from Jno. Wheelden that she belonged to Coll. Otis.
Jno. Lothrop 39. The same day or a day or two after the Whale was killd I heard Whelden say that Gage killed the Whale and that she belonged to him.
In JA's hand. Adams Papers, Microfilms, Reel No. 184. Appended to the minutes are notes made by JA and an unidentified assistant on several of Gage's depositions. These have been printed as footnotes at the appropriate points below.
That is, depositions in Doane's favor. The text to note
That is, Captain Knowles' deposition is also pertinent on these two questions. See JA's Interrogatories (Doc. III) on mateship and custom.
Trying: “The process of extracting oil from blubber by heat.”
OED
. Barvell: “A leather apron.”
OED
. See Andrews, ed., “'State of the Trade,' 1763,” 19 Col. Soc. Mass., Pubns.
384 note (1918). Presumably here, by extension from the leather apron worn in cutting up the whale, the term means the process of cutting up.
Apparently the same David Welts, or Welch, who testified for the other side also. See note “Davd. Welch.
The small of a whale is “the part of the tail in front of the flukes.”
Otis Gages witness when summoned by them says some said the whale belonged to Doane some to Gage. He Cant Tell which was the most and at the Time he Gave Evidence before he heard Jno. Whelden say the whale belonged to Coll. Otis—that Disputes used to be settled by arbitration—that Claimers Gave in their Claims and that sometimes bad Judgment was given and that the Doanes was Reconed Just men in the whaleing bussiness—in answer To Coll. Otis's Question. And that when he Claimed by the head of his Iron no boate was fast to the whale and no other thing To Claim by for the whale had Ran Loose above a mile. And that if he had held tow till another Iron was in he need not produced his Iron head. And the 2d striker Could have had no more than his Call or 8th if his Iron had been in before the Deponent's broke or Drawed out. And further says that in the whaleing bussiness he has heard of Instances of puting in Iron on the presumtion of Gaining a Call or 8th but then in that Case it Lyeth with the 1st striker Either To Give or not but saith if he is the first striker and another Iron is put in before he is Loose the possession Remains in the first striker. And that the whale in which his broken Iron was was not mortally wounded. But said Iron, was in the whales small. He Got a Quarter altho she was Cut of when Runing away.” Adams Papers, Microfilms, Reel No. 184.OED
.
Lord Mansfield was said to have argued similarly for the application of custom: “I remember the first case upon that usage [the Greenland practice], which was tried before Lord Mansfield, who was clear, that every person was bound by it, and said, that were it not for such a custom, there must be a sort of warfare perpetually subsisting between the adventurers.” Fennings v. Lord Grenville, 1 Taunt. 241, 248, 127 Eng. Rep. 825, 828 (C.P. 1808) (Opinion of Chambre, J.), cited in Holmes, Common Law 168. See note 17 above.
Compare the deposition of Silas Newcomb, 4 April 1766, SF 172973:
“Silas Newcomb of lawful age testifyeth and saith that he being on a whaling voiage at the Labradore Shore and sometime the latter Part of June or the beginning of July last past I fell in Chase of a whale and we hove at her But did not fasten to her so we hauled in our Iron and Asa Nickerson Shot in upon her and struck her and hove over his Coils of warp. Then the whale went down, and as she Rose again one Gage met her and hove his Iron into her, nothing parting us and Gage But the whale and Boat. And Nickerson and Gage towed away together about Two Boats length. We Rowed up and asked them what they would give and I heard no answer, then we asked again and I heard Gage say I forbid any person to Touch that whale for she was in his Possession. Then we Eased away and I saw that Nickerson
was loose from the whale. Further I saw that when Nickerson's Iron struck the whale the Iron hit the whale above water and Judge Nickersons Boat was then about Twelve or fifteen fathoms from our Boat when he said Nickerson Put his Iron Into said Whale and Gage I judge was about forty Yards from our Boat when he put his Iron Into the whale. And further saith that one Thomas Mayo of Harwich struck the same whale in his Judgment before said Nickerson did and held to her near a quarter of a Mile or more before his Iron drew and after that the said whale ran a Mile and half at least before said Nickerson struck her, and further saith that when Nickerson struck said Whale he saw the whale and Iron pole Go down Together and that he did not see said Iron or pole afterwards: further after Gage had forbid any Body's Medling with the whale Jashur Tayler came up, Eased away, and asked who struck the whale and I Told him Asa Nickerson. Then he answered Capt. Gage is fast to her and he is our mate Boat and then pulld away.”
See the deposition of Atkins Smith, Truro, 6 March 1766. SF 172962.
See the deposition of Joseph Cable, Eastham, 17 Feb. 1768, SF 173117, in which there is the further statement “that the said Newcombs contended about their being fast to the same Whale untill Nickerson Struck her and they saw their own Iron pole at the Stern of the Whale boat.”
See Paine's summary of Samuel Linnell's deposition, text following note
This probably refers to Thomas Mayo, who was fast to the whale and then lost her before Nickerson struck. See note
Bassett also gave a deposition for Gage in which he apparently sought to qualify his testimony here. See text at note
That is, Nickerson's boat, one of the crew of which was an Indian. See note
Slack off your line. See
OED
.
See these depositions as summarized by Paine, text at notes
Welts or Welch apparently gave a deposition for each side. See note
See the deposition of Amos Otis as summarized by Paine, text at note
Taylor's earlier appearance was at the two-day hearing held on 20–21 June 1769. See note 14 above. His testimony does not seem to have been relied on by either side, but he would probably have been favorable to Gage. See note
That is, a boat from a ship with which Nickerson's ship was “mated.” See note 6 above.
See O'Kelly's deposition, text at note
JA's notes of the arguments of Paine and Otis for Gage comprise the remainder of Doc. II.
That is, Doane's.
Probably referring to the questions asked during the taking of the deposition, following the deponent's statement.
Apparently an inadvertence for Newcomb.
Silas Newcomb's deposition, set out, note
Apparently James Otis' comment on the testimony.
Thus in MS. The reference is unclear.
That is, Gage's to invalidate Doane's.
JA's assistant says of this deposition: “In the same boate with Clark. Viz. Taylor a party.”
See notes on this witness by JA, text at note
“David OKelly a minor in Capt. Jasher Taylors boate millitates with Wheeldens Deposition and all his Company as to the Distance of Nickerson and Gages boates when strikeing the whale together with the scituation of their position and the Distance of time and thereby Corroborates the Newcombs Depositions and their boats Crew &c. Notes made on the Coppy
i.e. of the deposition more fully. This to compare with Jacob Hawes' Deposition allso.”
The notes of JA's assistant on this deposition follow:
“Amos Otis' Deposition proves that the Newcombs was up aboute as near the whale as they say in their Deposition: but it appears he Did not observe when Either Nickerson or Gage struck the whale. See Right Childs and Tobey, Depn.”
That is, Nickerson's boat was not making way through the water, which it would have done had it been fast to the moving whale.
The notes of JA's assistant on Howland's answers to unidentified interrogatories follow:
“Saml. Howland sworn 1769 has Lived in the midst of the whalers of Gages party aboute 3 years and an half since the Suite was Commenced first and brought to Give his Evidence at Last which Does not appear verey fair and Consistant.
“He says the head of their boate was toward the whale's head. He says he saw Nickerson Dart A. Yes. Did he fasten A. He thought not.
“He Did not see Nickerson Tow and his Answer To Question 9 is Saw Nickerson hawling in his warp Before Gage struck: and his Answer is To Question 10 that to the best of his Remembrance he thinks it was the same whale that Nickerson flung his Iron at and that he is Verey sure of it: and that he saw Gage strike her after he saw Nickerson hawling in his warp, which is his answer To Question 11th. Then he Goes on and says their people wondred the Contending parties Did not Leave the affair to
masters of Vessels To settle it as Usual and that their people said they Reconed that the whale was a Loose Whale when Gage struck her butCant Remember he heard Chase say any thing aboute her nor Cant Remember that Chase was present at the Conversation. Goes on to say that at sometimes John Chase Drank To much and Did not behave well for he Kept a Journal and said he Could Keep as Good a one as the Master. And that he went in to swim with his Cloath on once or twice and that he struck the Deponent with his fist &c. but Cant say Chase's memory is bad nor that he is not a man of Truth &c. nor Can he pretend to say near the Time of Day the whale was first Discovered wether in the morning noon or Towards night. But a Good many boats in pursuit of her near her in Chase upon her allmost up with her. Answer To 42 Question when he first saw the whale she was Comeing Right at us he says and we was Rowing toward her. I saw Gage fast to her and Nickerson hawleing in his warp. He saw him Dart and see him hawleing in his warp. He saw Gage heave in his Iron: he afterwards says he was aboute 80 or 100 fathoms from her. Cant tell whether Rowing or Lying on their oars. Query whether he Could Clearly Distinguish boats and presisely whether a boat Veered warp or halled in Especially in the Direction of head To head, the boats and whale, the oarsmen, back toi.e. because facing aft .“He saw no Iron put in after Gages as he says. And he saw her a few minutes after she past them Even To Rowing 80 or 100 fathom. I am at a Lost to know which way the boat Could turn so as for the Deponent not to have a much Clearer View than he had when meeting the whale: Query whether this agrees with the witnesses on the same side that say in aboute 1 minute after Gage struck that Adams second
ed an Iron. He says he observed Gage from the time he fastened to her. Cant tell whether he made a General Call or not and answers To Question 61 that he is Verry sure he saw Nickerson hawleing in his warp when Gage struck and thinks the warp was in the pins or Chocks. He says it was Verry soon a small space of time after Nickerson hove his Iron when Gage struck but Cant say how Long. Believes the same Riseing of the whale and is pretty sure it was—and never saw the whale Go Down from the Time Nickerson Darted till Gage was fast all which millitates with Wheelden and Tarrow and others of the same side who say the whale Run the Distance of 80 or 100 fathom between Nickersons and Gages Darting at the whale and some of them say a Greater Distance.”
Comment by Paine on the testimony.
JA's notes on this deposition are as follows:
“Captn. John Wheelden. “Nickerson flung at her. His Boat
he stoppd to hale in his Iron We got by.
shot ahead a little and then he hawled in his Iron and Warp. As I went by Nickersons Boat, I saw them hawling in their Iron and Warp and think their oars not shipped, and the Iron Pole came above Water as we passed 'em at his stern. The Whale run after that 2 shot of Warp
general Call. He said get in your Iron as soon as you can, but in less than a Minute Adams seconded in an Iron, and Gage and he towed away together. When Gage fastened, Nickerson 70 fathoms off and Newcombs a great deal farther off. Newcombs did not mention Nickersons striking. Nickerson said he had not his Warp in the Pins, and in such a Hurry he had not Time to call before Gage struck. Saw Nickerson work on her, and Gage forbid him. When Nick. hove, he was about 20 fathoms from Deponent.”
The following comments were appended in the hand of JA's assistant:
“Observe that the whale Runing above 50 Rood after Nickerson was Loose if fact must put the matter in Dispute so Intirely out of the Question that it seems to me Mr. Wheelden must utterly mistake with Respect to the boates Engaged: or must mistake the time when Gage first put his Iron in the Whale. Jno. Wheelden finds himself mistaken aboute 2 whales because Taylor Told him so. Why Did not Whelden Contradict Asa Nickerson when he Queried with him.”
The assistant also commented as follows on Whelden's answers to interrogatories:
“John Wheldins Interogatories “Observe Wheldens answers. Remarkable with Respects to his particular observations of what Past in the Newcombs boate when in pursuite which Generally is full of noise and bustle and when Whelden was Rowing full speed. He says Robert Whelden Called 3 times the Last time To swear Back on those that had Contradicted his Deposition and so it might be add Infinitum.”
Comment by JA.
The notes of JA's assistant on this deposition are as follows:
“Barnabas Eldrige Mr. Wheldens Harpooner was in Chase of a whale with Newcombs and others whose Back was Toward the whale in the time of Chase: says that after Sometime Newcombs Harpooner Darted at the whale. Does not observe that he saw it. After which Wheelden told him Nickerson had hove at the whale and was fast.
He Looked Round and Replied he was not fast and soon after Wheelden said so too. The Reason of his opinion was Because Nickerson boate had not such way on head as is usual for a fast boate to have. Did not believe he had any head way but what his oars gave him. And the whale Run 60 or 70 fathom before Gage struck her and then is Quite Clear in it that the whale was Loose when Gage struck and that Gage made a Call and in Less than a minute Edwd. Adams shot in a second Iron and Gage and Adams Towed away together. When Gage struck the whale the Deponent was the nearest boate and Does not Remember to have seen Asa Nickerson near at that time and the first time he saw Nickerson afterwards he was behind Gage. He Did not see the Indian untill he saw him in the head.”
The assistant also made the following observations, apparently on Eldridge's answers to interrogatories:
“Barnabas Eldridge says Whelden said Nickerson
Swears the Newcombs Did not was fast to the whale. The first he saw Nickerson
The notes of JA's assistant on this deposition are as follows:
“John Tarrow saw somebody thro “Observe the Deponent Did not know Nickerson in nor Newcombs. So Comparing the Distance of time between the persons throwing his Iron that he afterward
saw said Nickerson hawling in his Iron. Then in 5 or 6 minutes after saw Gage strike a whale no boate in Tow after her as he saw which he thinks was the same that Nickerson threw at and the Distance of time 8 or 9 minutes after Nickerson hove before Gage struck. His Judgment Is that they was 30 or 40 fathoms from Nickerson when he hove his Iron. And that soon after Gage was fast Wheelden asked him what he would Give. He answered nothing as his mate boates was all Round him and that the Deponent says he Does not know Silas or Robert Newcombs and that he saw no other person thro[w] at said whale but Nickerson before Gage struck her.was told
understood to be Nickerson must be the Newcombs. He allso millitates with the other witnesses in Wheeldings boate the same he was in: with Respect to Gages Giveing a Call &c. and Repeats Gages answer when asked for a peice by Wheelden.”
Thus in MS. The notes of JA's assistant on this deposition are as follows:
“John Wheelden Jnr. Deposition: says he heard his father say that Newcombs had missed the whale after which he said Asa Nickerson was fast but himself and Eldrige both thought him not fast after which he Gives some matter of othere opinion with Regard to the Distance the whale Run
after before Gage put in his Iron which he suposes to be a Quarter of a mile but Does not Declare that he saw what passed nor is it Likely he should as his back must be toward the whale.”
See notes in the hand of James Otis (described, note 18 above):
“Questions to aske younge Wheldon wheither he heard any Talke on Board the Vessel while Elisha Lenel [Linnell?] was Present. What it was that was said about her [ “Question. Are [
i.e. the whale?]. Do you think that Stephen Linel's Capacity and Understanding is Equal to Common men in General. Was James Wallis Reconed to be a man of Truth By your vessels Company In General.” SF 173972.
you] Quite Clear in it that the whale Gage Struck was a loose whale when he fastened to her. Did you during your voiage or Since talke with Joseph Basset about a whale. What did he say to you. Aske Wheldon as to his Conversation with Nickerson why he did not make a General Call. His answer was he could not get his [hemp?] for the [....]” SF 173914 (Verso: “Question to be asked Young Whelden, Joshua Harding, Jesse Newcomb, John Chase”).
See an undated deposition by John Crowell 3d, SF 174202, repeating in substance this statement to the phrase “before Gage struck.” JA's assistant says: “John Crowels at a Greate Distance.”
Wallace's testimony for Doane appears in text following note
See the questions regarding Homer in Gage's interrogatories, Doc. IV. Homer's testimony, indicating a prior inconsistent statement by Wheelden, appears in text following note
The notes of JA's assistant on this deposition are as follows:
“Silvanus Hopkins says
he heardhe saw somebody throw at a whale. He Did not see Nickerson neither throw at the whale nor no other. He millitates with John Whelden, Barnabas Eldridge, Jno. Whelden Jnr., and Jno. Tarrow with Regard to the Distance that Newcombs was from Gage when Gage fastened.”
The notes of JA's assistant on this deposition are as follows:
“Willm. Clark says in fact nothing to the purpose his Depn. being wholly negitive or hear say with Respect to what the Newcombs said. Viz: that Sometime that Day they or some one in their boat said Gage struck the whale. If he heard such Talk it is Reasonable To Suppose he might mistake them by heareing them say Gage is now fast or to that purpose or might not attend to all that was said.”
The assistant's notes on Clark's answers to interrogatories are:
“Clark swears somebody hove at the whale as his stearsman Told him but Called one boate and another boate but
The notes of JA's assistant on the depositions of Baker and Cash are as follows:
“Seth Baker and John Cash says that he saw several Boats Dart at the whale. He thinks none was fast but Gage when Gage struck but that several boats was near the whale. After some time saw 2 boats Tow away. Did not see when the other put his Iron in. The 2 boats he saw Tow was Likely to be Nickerson and Gage. The Reason is he soon Turned his back To them. His harponeer Cash says he saw no other boats fast at all and he had much the best Chance to see as they Rowd away for his face was then Toward the whale and it was probably the time between Nickersons Iron Drawing and Adams puting in his Iron that Cash perce “Homers Deposition To Encounter these.”
JA's notes of this deposition appear in text following note “Joseph Basset says at a Greate Distance. “Mere Guess and tho he swears he saw Asa Nickerson miss the whale he says afterward he was told so.”
See note
This may be an inadvertence for Doane, or JA may not have recorded Otis' thought completely in the following phrase.
See Gilbert, Evidence
157: “One affirmative Witness countervails the Proof of several Negative, because the Affirmative may swear true, and the Negative also.”
These two sentences are a comment by JA, perhaps for use in rebuttal.
Comment by JA.
The last phrase is a comment by JA.
The last phrase is a comment by JA. For Homer, see note
Apparently Isaiah Eldridge, whose testimony appears with that of Delano in text following note
The last two sentences are a comment by JA.
That is, Elijah Blush. See text following note
1768
1. Was you on Board a Whale Boat with Asa Nickerson, on or about the 21st. of June 1765, in the Streights of Bellisle, and to what Vessell did said Boat belong, and who was Master of said Vessell?
2. Did you see the said Asa Nickerson, strike any Whale or Whales, on or about that Time in said Streights, if you did in what manner, declare all you know herein.
3. How and from what Circumstances do you know the said Asa did strike a Whale at said Time, declare in particular what you know relating thereto.
4. Was there at that Time any and what Boats near the Boat on which you was, and whose Boats were they, and at what Distance from your Boat, when said Nickerson struck said Whale?
5. Did you afterwards See any other Person put an Iron into said Whale, and who?
6. How long was it after said Nickerson had struck the said Whale, before you saw any other Person put an Iron into her?
7. Was said Nickersons Iron in said Whale when you saw the Iron put into her by Lott Gage, declare all you know herein.
8. Did said Whale, after She was struck tow said Nickersons Boat any Distance, and what other Boat, and for how long did you see them tow together?
9. Did said Nickerson with his Boats Crew, together with any other Boats Crew and what, help to kill said Whale?
10. Did you hear any Person forbid said Nickerson and his Crew to assist in killing said Whale?
11. Did you after said Whale was killed, hear any Person and whom forbid Said Nickerson from towing said Whale?
12. Did you see any Boat after said Whale was struck by said Nickerson foul of Said Nickersons Boat and whose and how long after?
13. †Did the Iron struck into said Whale by said Nickerson, remain any, and what Length of Time, in said Whale. † Omit this Q.
14. How long was it, after said Gage, put his Iron into said Whale, before said Nickersons Iron drew out of her? Declare all you know.
15. At what Distance was you from Nickersons Boat when he struck the whale?
9416. Of What Bigness and Value was said Whale according to your best Judgment?
17. In what Direction was Nickersons Boat to the said Whale when he struck her?
18. Did said Boat shoot a head after the said Nickerson struck said Whale or did she veer round. Was it occasioned by the oars or the towing of the Whale by the way. Declare particularly all you know herein.
19. Have you been for any Time and how long acquainted with the Whale Fishery and the Customs thereof.
20. What, according to the Customs of Whalers, gives the Possession of a Whale? Declare particularly all you know herein.
21. After the first Strike of a Whale, and while his Iron is in her, if any other Person by Calling or Swinging to or of his own accord, put another Iron into her and then the first Strikers Iron Draws, Does the first Striker loose his Possession according to the Customs of Whaling and Right to said Whale? Declare particularly all you know herein. Quaere of this Q.
22. Is it, or is it not necessary, according to said Custom to give the Possession and Right of a Whale to the first Striker, that his Stroke should give her a mortal Wound, or that his Iron should remain in her untill She be dead, declare all you know herein.
23. Did you ever hear Joseph Doane Demand of Lott Gage said Whale and when and where, and what was the Answer of the Said Lott Gage, declare all you know herein.
24. Did you ever hear the Said Joseph Doan request the Said Lott Gage to refer it to indifferent Men, well acquainted with the Customs of Whaling to decide whose Said Whale, immediately on the Spot, and When and Where and what was the answer of Said Gage?
25. Did you see Said Whale after she was dead, did you See any Hole or Holes in Said Whale, made by an Harpoon, or how many or any when the Iron was drawn?
26. Do you know there was a Mateship between Joseph Doane Senr., Joseph Doane Jnr., Stephen Sears, and Thomas Jones, while they were whaling, in the Streights of Bellisle, on the Labradore shore in the Year 1765.
27. Was it generally understood that there was such a Mateship?
Commission
These were Barnstable County justices of the peace before whom the answers could be sworn. See Whitmore, Mass. Civil List
146. Compare note 11 above.
1768
Interrogatories In the Behalf of Lot Gage and Partners In the Case of Joseph Doane and others against him and Partners.
1st. Was you on a Whaling Voyage In the Streights of Bellisle on or about the 21st. of June 1765.
2. What Boat was you in and what Vessel did you belong to.
3. Do you remember that on or about that time there was a Whale Killed by Lot Gage and others the Property of which whale has Since been disputed by Joseph Doane and others.
4. Did you see Lot Gage Faste to said Whale.
5. Was there any other Boat fast to her when Lot Gage Struck her.
6. How Near was you to Said Whale when Gage Struck her.
7. Did you Sit down or stand up tell all you Know about it.
8. Did you see Asa Nickerson that day.
9. Did you See him or his harpooner Dart at said Whale.
10. Did he fasten to her or Not.
11. Did you See him hawling in his Iron and Warp before Gage Struck the Whale he fastned too. Tell all you Know about it.
12. Did you at that time Know Silas and Robert Newcomb.
13. Did you see them at the time Gage was fast to the Whale or before.
14. What was the Newcombs Conduct on that Voyage according to your observation.
15. Did you observe that when you fell in Chase of Whales with the Newcombs they were more Noisey then
16. Did that Boat the Newcombs was in go by the Name of the Crasey Newcombs that Voyage.
17. Did you hear that Silas Newcombs was Crasey since he got home from that Voyage at any time.
18. Did you hear Josiah Godfrey your Stearsman say (at the time Mentioned In your Deposition) any thing on Board your Vessel about this Whale and what he Said.
19. Was Josiah Godfrey your Stearsman present at the Conversation aboard your Vessel as mentioned in your Deposition. Tell what you Know about it.
20. Was Robert Homer a Whaling with you in the Year 1765 at the Streights of Bellisle about the 21st of June.
9621. Had you any Conversation with him about the Whale In Controversy and what was it.
22. What was the Capacity that he went in.
23. Was he Not Looked on as a very Raw hand by your Crew and one that had Little or No knowledge about Whaling.
24. Did he Ever Mention to you or the Crew you belonged to any Conversation that he had with John Whelden or his Crew about this Whale.
25. Did you hear any man on Board the Vessel that John Whelden was in say the Whale In Controversey between Joseph Doane and others and Lot Gage and others belonged to the Doanes.
26. Did you hear any Man say so on Board the Vessel you Belonged to.
27. What was the general opinion while you was on the Voyage of the people a Board your Vessel and John Weldens vessel who said Whale belonged to whether to Gage or to whom.
28. Was you a Whaling with Seth Baker in the Year 1765 at the Streights of Bellisle on or about the 21st of June that Year.
29. What did you hear him say when he Come on Board the Vessel you was in about the Whale In Controversy that Same day said Whale was Kill'd or Soon after. Tell what you Know about it.
30. Did you go in an End of a Boat and which End.
31. What was the General Talk of the People at the Streights of Bellisle about the Whale in Controversy that is who she Belonged to tell all you Know about it.
32. Did you hear Samuel Howes talking with John Whelden about the Whale In Controversy very soon after the Whale was Killed Relate The talk Whelden had about her at that time.
33. Had you ever any Conversation with Silas Newcomb about the Whale in Controversy, tell all you heard him Say about it and when and where it was.
34. Had you Ever any Conversation with Captn. Joseph Doane about the Whale In Controversy. Tell all you remember of it.
35. Are you Acquainted or do you Know Asa Nickerson.
36. Had you Ever any Conversation with him about the Whale In Controversy Between Captn. Joseph Doane and others and Captn. Lot Gage and others. Relate the Conversation and tell what you Remember of it.
37. Did you hear any person in Asa Nickerson Boate at the Time Lot Gage was fast to the Whale now in Controversy say that they the said Nickersons boate was not fast to said Whale and that they had 97Better go on Board their Vessel and Get some Victuals and not Contend about her or words to that Effect. Tell all you know about it.
38. Can you tell how Near Seth Bakers Boate that you was in was to the Whale In Controversy when Lot Gage struck her.
39. Was you at one Oar with your Back Toward the Whale.
40. Was not Robert Homer In the same Boat at the same Time.
41. Did he stand up to Look at the Whale and Boats that you Observed.
42. Do you Know of any Boats Besides Gages that was Nearer to the Whale when he struck then your Boat.
43. Was you Near Enough to Gages Boat or the Whale to Know one man from another.
44. How long after you Perceivd the Whale to be fast before you Quitted the Chace.
45. Did you Ever hear it said on Board your Vessel that the Whale In Controversy Belonged to the Doanes.
46. Did you Ever tell any Body so.
47. Did you hear any of the Crew on Board your Vessel say so.
48. Was it not the General Voice of your Vessels Crew that she Belonged to Gage.
49. Did you Ever Suggest to Robert Homer or say any thing like it that you should or Could be an Evidence in Doans favour.
50. Did you Ever Say to Robt. Homer or in his hearing that said Whale Belonged to the Doanes.
51. Was you in the Boat with John Chase at the Streights of Bellisle on or about the 21st. of June 1765.
52. Did you see any thing of the Transactions of Asa Nickerson or Lot Gage at that time. Relate all you know about them.
53. Do you Know Seth Baker.
54. What is his Charecter as to Probity and Truth.
55. Do you Know John Cash.
56. What is his Charecter as to Probity and Truth.
57. Have you heard of any Contention or Quarrel Between Robert Homer and John Whelden or Family, tell all you Know about it.
In an unidentified hand, without date, SF 172906. Endorsed: “Interrogatorys on the Deft's side.” See answers of Samuel Howland to some similar interrogatories, note