British impressment of American seamen, a grievance normally associated with the War of 1812, actually antedated even the Revolution, as the present case shows. Early in the morning of Saturday, 22 April 1769, H.M. Frigate Rose, patrolling on the high seas off Marblehead, intercepted and stopped the brig Pitt Packet (Thomas Power master), owned by Robert “King” Hooper, manned with a crew of Irishmen, and homeward bound 277from Cadiz, Spain, with a cargo of salt.1 Henry Panton, the lieutenant, or executive officer, of Rose, came aboard with some sailors and marines, asked for the vessel's papers, and commenced a search. In the forepeak, a small space under the weather deck between the stem and the main hold, he discovered crewmen Michael Corbet, Pierce Fenning, John Ryan, and William Conner, variously armed with fish gig, musket, hatchet, and harpoon. To Panton's threats and entreaties, they remained obdurate and menacing; even when the officer secured reinforcements from Rose and commenced to have the bulkhead torn down, they refused to budge.

According to John Adams' later reminiscences of the testimony at trial, Corbet drew a line in the salt and told Panton, “ 'If you step over that line, I shall consider it as a proof that you are determined to impress me, and by the eternal God of Heaven, you are a dead man.' 'Aye, my lad,' said the lieutenant, 'I have seen many a brave fellow before now.' Taking his snuffbox out of his pocket, and taking a pinch of snuff, he very deliberately stepped over the line, and attempted to seize Corbet. The latter, drawing back his arm, and driving his harpoon with all his force, cut off the carotid artery and jugular vein, and laid the lieutenant dead at his feet.”2

But the truth, at least according to the actual testimony at the trial, set out in Document V, suggests that Panton, rather than striding into danger, was sitting on the salt, there being no room to stand, and that Corbet, like his friends, was “pushing” at the men who were tearing apart their fortress. At least one pistol had been fired into the forepeak, and it could be only a matter of time before someone was seriously hurt. In the confusion, Corbet thrust with his harpoon, striking Panton, who was carried topside where he bled to death within two hours. Corbet and the others meanwhile were gradually subdued, and that only because, it was rumored, they had drunk themselves into a stupor.3

Now the authorities faced the serious problem of properly dealing with the sailors. It was clear that they could not be indicted and tried in one of the common law courts, because the offense had not been committed within the bounds of any county, but the statutes providing for Admiralty jurisdiction of such offenses left the question of jury trial in doubt. The 278original Act of Henry VIII specified a jury trial before a special Admiralty court in England;4 a statute passed in the time of William III indicated that trial in the colonies ought to be without a jury.5 Finally, an Act of George I seemed to restore the jury right.6 Predictably, the defendants pressed for a jury trial, while the Crown advocates tried to bar it.

But even if the mode of trial were settled, there still remained two knotty issues: Of what crime should the men be accused, and by what substantive law should they be tried? Adams, who with James Otis defended the sailors, was in later years to claim that the successful result of the trial hinged on his discovery of a statute which forbade impressment of American seamen, and on the court's fear that it might have to apply that statute.7 It is certainly true that the statute in question seemed to render Rose's press gang illegal; that being so, then Panton had no authority to threaten or attempt to seize Corbet, and the killing could be justified on grounds of self-defense. But the issue appears to have been current long before the trial. If one can believe “A Journal of the Times,” the loyalists were contending as early as 5 May 1769 that Panton had gone aboard, not to search for seamen, but to inspect for contraband,8 an argument which the Crown advocates, Samuel Fitch and Jonathan Sewall, were to echo at the trial. And indeed, almost a year before Panton's death, the “Instructions of the Town of Boston to their Representatives,” written by Adams himself, had set out the entire relevant section of the act.9

Much depended on the question of the applicable substantive law. If the common law applied, then, unless the homicide were justifiable, the accused would be liable to conviction of manslaughter; and the statutes left it unclear whether in trials before the Special Admiralty Court the benefit of clergy could be pleaded, as it could have been at common law. If the trial were, on the other hand, to be held according to the civil law (which usually controlled ordinary Admiralty proceedings), the killing was 279punishable by death only if it was murder; there was no death penalty for the crime which the common law called manslaughter (intentional, unjustifiable, inexcusable homicide without malice).

The Crown officers proceeded carefully. Panton was barely in his King's Chapel grave10 when Governor Bernard, Lieutenant Governor Hutchinson, Commodore Samuel Hood, Province Secretary Oliver, and Admiralty Judge Auchmuty, Commissioners for the Trial of Piracies, went aboard Rose to confer with Captain Caldwell.11 Shortly thereafter, an account of the affair, based, as it later developed, on the various depositions of Rose's people, appeared in the tory Boston Chronicle and so angered the patriots that they attempted to counter it with a rehash of an earlier version which everyone, including the Chronicle, had already published.12

In the face of conflicting documents, Adams' shifting memory, and the disappearance of the pleadings, the exact chronology of the litigation is hard to trace. However, the following seems probable. “Articles” were drawn up against each defendant by Ezekiel Price, Register (Clerk) of the Court of Vice Admiralty. On Tuesday, 23 May 1769, the Special Court of Admiralty, called pursuant to the Commission for the Trial of Piracies, convened. In addition to the five Commissioners who had visited Rose, the court consisted of Governor John Wentworth and Councilors Jonathan Warner and George Jaffrey of New Hampshire; Judge John Andrews of the Rhode Island Court of Vice Admiralty; Collectors Joseph Harrison of Boston, John Nutting of Salem, and Robert Trail of Portsmouth. However, at the first session, only Bernard, Hutchinson, Hood, Auchmuty, Oliver, Trail, and Nutting attended.13 The jury-right issue having been raised early, the court adjourned to Thursday, 25 May, meanwhile hearing argument (Document II); then it further adjourned to Monday, 29 May, when Adams filed his plea to the jurisdiction (Document III), upon which the court “thought proper to take the same under consideration,” and adjourned to 14 June.14

Finally, on Wednesday, 14 June 1769, the trial commenced in the Court House. “No trial had ever interested the community so much before, excited so much curiosity and compassion, or so many apprehensions of the fateful consequences of the supremacy of parliamentary jurisdiction, or the intrigues of parliamentary courts. No trial had drawn together such crowds of auditors from day to day; they were as numerous as those in the next year, at the trials of Preston and the soldiers.”15

The court quickly announced that it had overruled the pleas, and pro-280ceeded to trial.16 The taking of evidence commenced immediately and continued for three days; the testimony seems to be substantially reproduced in Adams' minutes (Document V). In contrast to the common-law practice, the evidence was “taken down by the clerk and the counsel in writing.”17 It should be noted that none of the accused testified. There is no evidence that any attempt was made to call any of them as witnesses on behalf of any of the others. Of course, no accused could testify in his own behalf, even at common law; but it was customary at common law when a number of prisoners were tried on the same facts for the court to acquit those whom the evidence did not materially affect, in order that the others might call them as witnesses.18

On Saturday, 17 June, Adams rose to make the argument which is detailed in Document VI. He had barely commenced, and had begun to argue that the killing was only justifiable homicide, when, as he loved to tell in later years, Hutchinson moved for adjournment. The court retired for four hours, then returned with its decree: Justifiable homicide, and the prisoners set at liberty. Although Adams insisted that it was fear of the nonimpressment statute which swayed the court, Hutchinson gave a different reason: “It appeared that neither the lieutenant nor any of his superior officers were authorized to impress, by any warrant or special authority from the lords of the admiralty; and the court (the commanding officer of the king's ships being one of the commissioners) was unanimously of opinion that the prisoners had a good right to defend themselves, and, though the fact of killing was fully proved, that they ought to be acquitted of murder, with which they were charged, and that, at common law, the killing would not have amounted to manslaughter.”19 In other words, Adams' substantive legal argument prevailed.

Immediately upon the acquittal, Ryan, whose arm had been broken by a pistol ball in the fracas, brought an action against Midshipman William 281Peacock, who had fired the shot. The Sheriff rowed out to Rose and seized Peacock personally, taking £300 bail in lieu of an arrest.20 Commodore Hood himself sought vainly to buy Peacock's peace, writing Adams (who represented Ryan) and offering his client a cook's place in the fleet, which, with its perquisites, was worth £30 a year. But Ryan refused “because he had fallen in love and would be married,” and the matter was finally settled for £30.21

Adams always remembered Corbet's case warmly. He considered it more important than the Massacre trials,22 and he never forgot the honest testimony of the British sailors (some of whom testified in behalf of the prisoners) and their apparent abhorrence of the press gang.23 At one time, he contemplated publishing a report of the case. Characteristically, he noted: “A great Variety of useful Learning might be brought into an History of that Case—and the great Curiosity of the World after the Case, would make it sell. I have half a Mind to undertake it.”24 Apparently, 282he did take some steps along those lines, because the documents here set out, particularly Documents II and VI, indicate careful expansion of legal jottings and courtroom minutes. Document I seems to be the rough notes on which he based his argument, expanded in Document II. Document III is the plea, and Document IV additional pleadings in the nature of demurrer and joinder. Adams' actual trial minutes are Document V, while his final argument is Document VI.

The editors have decided to place the litigation materials in roughly chronological order, and have therefore divided some of Adams' documents at appropriate places. The MS trial minutes (Document V) contain also a series of eight leaves in Adams' hand which Brooks Adams called “supplementary notes.”25 They appear, in fact, to be Adams' digest of the various witnesses' depositions. Thus the summary of Hugh Hill's testimony commences: “Like the Master's till. . . .” And John Roney's starts: “As the Master.” In the present arrangement of the materials these have been placed as footnotes to each respective witness' trial testimony.

It is tempting to speculate that these notes are evidence of pre-trial discovery techniques not usually associated with traditional Admiralty practice.26 However, a more probable view is that, all the witnesses being mariners, each deposition had been taken in rei perpetuam, against the possibility of the witness' being at sea when the case came to trial.27

28. H. 8, c. 15. For Pirates.

The Statute on which this Court is founded is 11th. & 12th. Wm. 3rd, C. 7. An Act for the more effectual suppression of Piracy.

6. Ann, c. 37, §9. Impresses in America prohibited. This act perpetual, 1. because of the Title. 2. the Preamble, in two Parts, for Ad-283vancement of Trade, and increase of Shipping and Seamen. 4. the same Clauses in their Nature temporary, yet others perpetual. Others expressly limited to the duration of the War. This § not §4. No limitation in the Act itself to Years, or other Term. 4. G, c. 11, §7. Sugar Colonies Act. 19. G. 2, c. 30, §1.2

Fosters Crown Law.

Necessary Homicide. 2. Domat. 638 §6. Woods Inst. civ. Law 270. Cod. Lib. 9. Tit. 16. 2. 3. 4 &c.

Civil Law, relative to Defense and Provocation.

2. Domat 638. §6. Woods Inst. civ. Law 270. Cod. Lib. 9. Tit. 16. 2. 3. 4. &c. Note 46. Gail Page 503. Maranta Page 49, Pars 4. Dig. 1. Dist. 1. 77.

Com. Law justifiable self Defense.

1. Hawk. 71. §4. middle. §21. killing ravisher. page 72 §23. towards the End. §24. page 75. §14.

Keyling page 128. bottom page 136. Top. Buckners 136. 3. bottom. 3dly. 59. Hopkin Huggetts. 2. Ld. Ray. Tooleys Case. Holt 485. 484. Faster 312—316—vid. Foster 292, the smart &c. for Manslaugter, also 296.

Calvin. Tit. Culpa.3

7. W. 3, c. 4. An Act for Grand Jurors serving at Quarter Sessions. Clerk of the Peace of each County shall annually 15 days before the day for holding the Court issue out Writs to the Constables of Towns, to warn a Meeting of the Inhabitants, for chusing one or more Grand Jurors.4

Grand Jurors Oath 4. W. & Mary. c. 16.5

Temporary Laws. 23. G. 2, c. 2. better regulating the Choice of Petit Jurors.6

28. H. 8, c. 15. For Pirates. After the common Course of the Laws of this Realm. Commissioners to enquire, by the Oaths of 12 good and lawfull Inhabitants, in the Shire limited in their Commission, as if such Crimes committed on Land. And Tryal by 12 lawfull Men, inhabited in the shire limited within such Commission. Expressly excluded clergy. Tryals in 5. Ports shall be in by Inhabitants,7 &c.

11. & 12. W. 3, c. 7. Act for more effectual suppression of Pyracy.

4. G. c.

18. G. 2, c. 30.8

Otis. 2 Salk. The Word “may,” shall be construed “shall.” Tit. Statutes and their Construction.9

Tryal of Stede Bonnett, before Judge Trott.

1718. 5. G. 1. V. 6. 156.10

Consent of Parties would cure all Difficulties, Vin. Tit. Tryal.11