Until comparatively recent times the valor of naval crews was stimulated by the prospect of a share in the proceeds of enemy vessels and goods captured as prize. The complicated questions of property and the law of war which this system of hazard pay produced were adjudicated in every country by special tribunals, administering a more or less common body of international law. From its 14th-century origins the English Court of Admiralty had exercised a jurisdiction in such matters. By the beginning of the 18th century, when Admiralty's powers in other fields were on the wane, the prize side of the court had become virtually a separate institution, with sessions, rules, and records distinct from the ordinary civil, or “instance” side. Although this jurisdiction was called upon only in time of hostilities, the warlike nature of the times meant a steady demand for it, so that a substantial body of prize law developed and the Admiralty was saved from the extinction which might otherwise have been its fate.1

In the colonies, the seat of much of the warfare, there was great need for a similar forum, since trial of colonial prizes in England was impracticable. After 1660, captures were tried first in the courts established by the governors under their powers as Vice Admirals, then in the Admiralty courts created in 1697 for enforcement of the Acts of Trade. Confusion over the source of these courts' power to sit in prize was laid to rest by an Act of 1708, which provided for trial in Admiralty under a precise and simple procedure and established fixed formulas for the division of proceeds among the captors.2 Under this statute the colonial Vice Admiralty judges, empowered by special Admiralty warrant, exercised the jurisdiction through all the wars of the 18th century. One authority suggests that this branch may have amounted to as much as a third of the courts' total business.3 Although it may be assumed that the Massachusetts Vice Ad-353miralty Court sat in prize until the cessation of hostilities in the Seven Years' War in 1763, John Adams had no prize cases before it, as far as is known.

At the outbreak of the Revolution the colonists soon found that, whatever their feelings about the Admiralty had been, the prize jurisdiction was a necessary element in naval warfare. Despite the efforts of advocates of seapower, including Adams, a Continental Navy was slow to develop. George Washington put a fleet of four vessels into action off Massachusetts, and the individual colonies established small navies of their own; but privateers, vessels fitted out at private expense and commissioned by Congress or a colony to sail against enemy shipping, were the substitute upon which the colonists chiefly had to rely.4 Since profits were even more important to the privateers than to regular naval vessels, Massachusetts as early as 1775 established its own maritime court to exercise jurisdiction in prize matters. The other colonies soon followed suit, and the hated royal Admiralty courts were succeeded by a system of state courts, which, however, were usually limited to prize cases and sat with a jury.5 Congress was also quick to recognize the need for its authority in this field. In November 1775 it adopted the report of a committee of which Adams was a member, establishing regulations for privateers, defining the objects of capture, recommending that the states establish prize courts, and providing that appeals from all cases of prize in those courts would lie to the Congress. Under this measure appeals were referred to special committees, until in January 1777 a Standing Committee on Appeals was created.6

Adams was appointed to the Standing Committee in March 1777 and served until November of that year, when he left Congress for good. Despite a busy schedule, he managed to participate in much of the Committee's work.7 Its surviving file papers reveal that of eleven appeals decided during Adams' tenure, he sat on at least five. In five others the appellate papers are incomplete, so that the members of the Committee who sat cannot be determined. Thus Adams may well have been involved in additional cases.8 The papers show that the Committee, which on at least one occasion took the style “Court of Commissioners of Appeals for the American States,” viewed itself, and was viewed by Congress, as a judicial body. Thus, its procedure included provisions for notice, payment of costs, and the like, reflecting the legal background of its members. Its decisions were based on a full record of the trial below, as well as upon oral argument. These decisions were handed down with oral opinions, were in the form of judicial decrees, and were accorded the legal effect of such decrees.9

The Court of Commissioners, and Adams' role in it, deserve a full analysis, which cannot be undertaken here. Despite the limitation of the court's jurisdiction to matters of prize, it foreshadowed the United States Supreme Court as the earliest permanent judicial body with a national jurisdiction. Equally important, the court, and its successor, the Court of Appeals in Cases of Capture, provided an opportunity for the development of an appellate procedure and jurisprudence, and a bar experienced in these matters, which permitted the Supreme Court to undertake its duties in 1789 unencumbered by the need for awkward experiment. Adams, who had had to resign from the chief justiceship of Massachusetts before he could enter upon the duties of that office, was thus finally enabled to serve on the bench in a much more significant way.10 He was, if briefly, a member of what was in effect the first Supreme Court of the United States; as such, he participated in the establishment of an institution capable of handing on the appellate tradition which it began.

In November 1777, when he took leave from Congress for a much needed rest and return to personal affairs,11 Adams was probably little aware of the long-range importance of his recent judicial activities. But he was soon to discover that they were of immediate value. Shortly after his arrival at Braintree he was plunged into a prize controversy between his old client Col. Elisha Doane, one of the richest men in New England,12 356and certain New Hampshire privateersmen, which brought into play his newly acquired expertise in such matters. The case is of real interest, not only because it marks Adams' last known appearance as an active trial lawyer, but because years later, in the Supreme Court of the United States, it led to an affirmation of the supremacy of the federal courts in a matter in which the states had yielded sovereignty.

The complicated story of the litigation can be pieced together from various contemporary sources, principally the files of the Continental Congress' Court of Appeals.13 It begins in the summer of 1775, when the Cape Cod whaling fleet returned from the South Atlantic, having “proved to be tolerable successful,” and Doane, whose headquarters were at Chatham, found himself with a considerable stock of whale oil on hand. The presence of the British fleet at Boston, and its evident intention to enforce the restrictions which Britain had laid upon New England's commerce,14 meant that there was no local market for the oil. Moreover, like many a businessman whose country is on the verge of hostilities with a former trading partner, Doane had a considerable balance in his favor on the books of Lane, Son & Fraser, London merchants, as well as an unsold shipment of whalebone in their warehouse. He determined to realize upon these various assets before the worsening political situation led to their confiscation.15 Accordingly, he loaded his brigantine Lusanna, already carrying considerable oil that she had herself brought back from the whaling grounds, with additional oil and other goods and arranged that his son-in-law Shearjashub Bourne, a lawyer and recanting addresser of Hutchinson, whose business had virtually disappeared with the closing of the courts, 357should go with this cargo to London and there see to its sale and to the securing of Doane's other interests.16

On 4 September 1775, a week before the effective date of the ban laid on exports to Britain by the Continental Association, the Lusanna, Matthew Wood master, sailed from Wellfleet, having earlier cleared out at the custom house in Plymouth. Her cargo consisted of 101 casks of spermaceti oil and 37 casks of head matter belonging to Doane and consigned to Lane, Son & Fraser; 208 casks of spermaceti oil and 82 of head matter, belonging in part to Doane and in part to some of his whalemen, consigned to Bourne; and a quantity of staves and cord wood, belonging to Doane and also consigned to Bourne.17

The instructions which Doane gave to Bourne and to Lane, Son & Fraser were very broad. To alleviate a shortage of cash in Massachusetts, the Lusanna's outward cargo of oil was to be sold and the proceeds brought directly to Doane by Bourne. If the acts of Parliament restricting New England were repealed, thus leading to the abrogation of the Continental Association, Bourne was to freight the Lusanna home with English goods, bought with Doane's London credits. If the Acts were not repealed, Bourne was to use Doane's funds to send the Lusanna with a cargo to the West Indies to be exchanged there for goods which did not violate the colonial ban on imports. If this was impossible, he was to carry English goods to Nova Scotia, take on a new, nonrestricted cargo there, clear out for the British West Indies, and come directly to Cape Cod. In any event he was to use his judgment in light of all the circumstances.18

Only a week after his departure Bourne met the setback which was to turn his trip from an ordinary if risky commercial venture into an epic voyage of mischance and duplicity. On 11 September, off Sable Island, 358about 200 miles east and south of Halifax, the Lusanna was “met by a violent gale of wind from E, and then shifting to ENE shattered our sails and rigging to a great degree carryd away our foretopmast without any canvas Spread and caused the brig to leak very much.”19 Thus damaged, she was forced to put into Halifax for repairs; on entering the harbor there, she was seized by a boat belonging to the Somerset man-of-war. The Lusanna was held for three weeks, although, according to Bourne, the attorney general at Halifax had ruled that all her papers were in order and that she was not in violation of any Act of Parliament.20 Finally she was released by order of Admiral Graves at Boston, and repairs were undertaken.

When the Lusanna was almost ready for sea, she was seized again on 28 October, apparently by virtue of new orders received by the Admiral from England, requiring all New England vessels to be detained until further notice.21 Bourne at once left for Boston, where he procured the vessel's release, reportedly on condition that he take out a new register in Halifax, listing the vessel as of that port.22 At the time it was rumored that he had also agreed to bring a cargo back to Halifax.23 It is even possible that in his negotiations with Admiral Graves he had adopted the role of fleeing loyalist which he later played in England to his subsequent embarrassment, but there is no evidence of this. Whatever Bourne's tactics, his success is attested by the fact that the Lusanna left Halifax, probably early in January, and arrived in London, “after a tedious passage,” sometime in March.24

Once in England, Bourne set about his assignment. The oil market was not at a desirable pitch in the spring of 1776, but, by October, Lane, Son & Fraser were able to report to Bourne that they had sold a good portion of the oil at a price near that which Doane had wanted, and that they expected little difficulty in selling the remainder.25 Bourne could not yet come home, however. He feared that an American vessel of ambiguous loyalties 359in London at that period would excite a certain amount of suspicion, and he deemed it unwise to hazard apprehension by the British until conditions improved.26 Other affairs kept him busy. Although witnesses later testified that Bourne had refused to charter the Lusanna to the military transport service, Lane, Son & Fraser got her a cargo to Gibraltar, which the evidence indicates was at least in part military stores. After having been registered again, this time as belonging to Shearjashub Bourne “of London,” she sailed for the Mediterranean at the end of September 1776, returning in February or March of the following year.27

Bourne was also charged with establishing correspondence with a London merchant for a new venture in the commission sale of “Oil, Pot and Pearl ashes &c.,” in which he, Doane, and Doane's son Isaiah sought to embark. No details of his “plan” for this enterprise have been uncovered, but he was able to report that he had “settled the correspondence come out for with the best house in England for our interest . . . so that nothing prevents a prosecution but the American war.” At the same time he took advantage of his enforced stay to travel around England, meeting influential merchants and learning as much as he could about manufacturing, markets, and trade, for future commercial use.28

Another matter which concerned Bourne was Doane's claim to a part of the cargo of the brigantine Industry, which had sailed from Wellfleet on 12 September 1775 and was seized off Plymouth on the same day by a British naval vessel. Aboard her were an additional 102 casks of whale oil belonging to Doane, consigned to Bourne or to Lane, Son & Fraser in London. A claim had been entered on behalf of the Industry's owner for vessel and cargo, but on 12 October both were condemned in the Massachusetts Vice Admiralty Court for failure to give bond as required by the Restraining Act of 1775.29 The troubled conditions in Massachusetts had 360prevented Doane from making an appearance in the suit. When Bourne heard of this he procured from Doane a power of attorney to act in the matter, and a certificate of the collector of customs at Plymouth that he had not had the proper forms available when the Industry had cleared.30

Extracts from Bourne's journal, and a memorial which he submitted to the Treasury in England, show that, for this purpose at least, he had assumed full loyalist coloration. He sought and obtained the favor of Thomas Hutchinson in London as he pressed his cause, and in the memorial told a sad tale of his flight from the colonies and his persecution at the hands of the villains who now were running the country. This document, prepared in January 1777, did at least reach the proper committee, but the claim was apparently rejected on the basis of an adverse opinion by Daniel Leonard, formerly of the Massachusetts bar, now solicitor to the American Customs Commissioners in London. Leonard found that Bourne could have had no interest in the voyage, that the owners had probably intended to bring back military supplies to the rebels, and that the collector had cleared her only under duress.31 An unintended result, however, was that journal and memorial were offered in evidence on the subsequent trial of the Lusanna as prize, doubtless contributing substantially to the jury's determination against Doane.32 Unfortunately for Doane and Bourne, Leonard's opinion was not available as a counterweight.

While he was pursuing the Industry claim, Bourne was apparently also seriously considering means of getting home. According to the later testimony of David Smith, a Cape Cod whaling captain who met him in London in February 1777, Bourne had at that date already developed what was essentially the scheme that he would later unsuccessfully attempt to carry out. When the last of the whale oil was sold, he planned to purchase a partial cargo for the Lusanna with £2000–3000 of Doane's funds, then take on other cargo for Halifax to avoid suspicion and clear out for that port. In Halifax he would obtain the remainder of Doane's English funds by negotiating bills of exchange on Lane, Son & Fraser, then clear the Lusanna out for the British West Indies with Doane's goods still aboard and the cash in his strongbox. En route to the latter destination it would be a simple matter to put into a port on Cape Cod or other friendly territory.33

Whether this was the plan or not, the Lusanna began loading in June 1777 and cleared out at London for Halifax at the end of July. About 20 August, she left London, actually sailing from the Isle of Wight on 13 September.34 Her cargo included various goods to the value of about £2000, consigned by Lane, Son & Fraser to Bourne at Halifax, and provisions and liquors worth about £200 consigned by Bourne to himself or Messrs. Thomas Cochran & Co., Halifax merchants. Witnesses later said that Bourne claimed the ownership of all of these goods. The Lusanna also carried miscellaneous merchandise shipped by eight other English merchants, some of it consigned to Bourne, the rest to specific consignees in Halifax.35 Several passengers were aboard,36 as well as goods belonging to Captain James Shepherd, a Bostonian who had left London aboard the Lusanna after a fruitless attempt to appeal the seizure of his ship at Halifax a year earlier. Shepherd had been forced to remain at Cowes on the Isle of Wight, when he had been taken sick just before sailing, but his goods stayed aboard, consigned to Bourne.37

Bourne carried with him letters of introduction not only to Halifax merchants, but to Captain William Spry, “Commanding Engineer” there, which recommended him highly and spoke of his intention to remain at his destination, chartering the Lusanna as a transport until the war should end.38 He also carried two letters of credit, permitting him to draw up to £7000 against funds in the hands of Lane, Son & Fraser, in London.39 His own letter of instructions to Messrs. Cochran indicates the somewhat ambiguous nature of his intentions.

He wanted to sell the goods shipped by others for the interest of the shippers. The provisions shipped by Bourne, which he described as “belonging to myself,” were to be sold for his own interest, and an accounting 362made with Bourne, Lane, Son & Fraser, or Doane. The goods in the amount of £2000 shipped by Lane, Son & Fraser, which Bourne also claimed as his, were to be stored until further orders from Doane, Lane, Son & Fraser, or Bourne, and the Lusanna was to be laid up on the same terms.40

The Lusanna sailed as part of a fleet in convoy with the British frigate Venus, but on the night of 25 October she lost her escort in the fog, and in the morning Wood and Bourne determined to proceed to Halifax as best they could. Four days later on the 30th, they sighted an American privateer, which later proved to be the McClary out of Portsmouth. The Lusanna fled, but after a chase of about an hour and a half, she was overhauled. Several broadsides were fired by the McClary, and the Lusanna, outgunned as well as outsailed, soon struck.41

The McClary brought the prize into Portsmouth, where on 11 November 1777 she was libeled in the Court Maritime of the State of New Hampshire.42 The libelants were John Penhallow and Jacob Treadwell, representatives of the fifteen Portsmouth merchants who owned the privateer; and George Wentworth, agent for the crew, who was also a Portsmouth merchant and the brother of one of the owners.43

Bourne at once began a desperate search for counsel; not only were there considerable sums at stake, but the circumstances of the capture were such that his loyalty to the American cause might be questioned. Oliver Whipple, a Portsmouth lawyer, was engaged to watch over the preliminaries. On 17 November, Bourne wrote for assistance to Robert Treat Paine, who had not returned to Congress after his reelection in December 1776, and was now a member of the General Court and Attorney General of Massachu-363setts. Paine apparently could not take the case because he had to attend the General Court which sat at Boston from 4 to 15 December.44 Luckily, however, Adams reached Braintree on 27 November and some time thereafter was engaged by Doane.45 Paine seems to have been kept on retainer, for he was supplied with full notes of the trial, made by Whipple (Document III), and he argued the case on appeal to the New Hampshire Superior Court in March and September 1778.46 John Lowell, another Massachusetts lawyer, who had lived in Newburyport until some time in 1777, was also engaged by Bourne and Doane.

Lowell filed three claims in the Portsmouth court on 1 December 1777. The first, on behalf of Elisha Doane, was for the Lusanna herself, her appurtenances and stores, and that portion of the cargo that had been consigned to Bourne by Lane, Son & Fraser. A second claim, in behalf of James Shepherd, was made for the goods which the unfortunate captain had shipped. The third claim was in the name of Isaiah Doane, the Colonel's son and trading partner, and was for the provisions and liquors which Bourne had shipped to himself, as well as for a few other items, apparently also Bourne's.47 Bourne had conveyed this property to Isaiah Doane on 24 November 1777 in an admitted effort to divest himself of all interest in the outcome, so that under strict 18th-century rules of evidence he could qualify as a witness.48 The rest of the cargo was unclaimed.

Originally set for 8 December, the trial was postponed until the 16th.49 Bourne had urged Adams to arrive in Portsmouth on Saturday night the 13th to allow ample time for consultation and preparation beforehand (Document I). Adams endeavored to comply, but on the 13th, his second 364day of travel, “a horrid cold Rain” that wet him through caused him to halt at Newburyport, while “Coll. Doane who was in a stage Coach and his son who was in a close sulky proceeded on.”50 Adams finally caught up with his seemingly inconsiderate clients at Portsmouth the next evening. After spending a night at “the Tavern, Tiltons,” headquarters of Doane's party, he moved to the house of General William Whipple, his friend and colleague in Congress, where his conversation seems to have made more of an impression upon the Reverend Ezra Stiles than his arguments later did upon the jury.51

On the eve of the trial Adams wrote most prophetically to Abigail: “The Cause comes on Tomorrow, before my old Friend Dr. Joshua Brackett, as Judge of Admiralty. How it will go I know not. The Captors are a numerous Company, and are said to be very tenacious, and have many Connections; so that We have Prejudice, and Influence to fear: Justice, Policy and Law, are, I am very sure, on our Side.”52 Adams was certainly not the first lawyer to discover that the latter three elements, however valuable, are not enough to outweigh a judge, who, despite old acquaintance, rules the “wrong” way on points of law, and a jury, whether prejudiced or stubborn, which refuses to accept a subtle interpretation of an ambiguous factual situation.

The evidence at the trial consisted primarily of papers found aboard the Lusanna, or submitted by Doane from his records, and the depositions of absent witnesses.53 Probably prior to trial, counsel for Doane had offered a set of interrogatories raising questions as to Bourne's role and the ownership of vessel and cargo, which were to be administered to Bourne, Matthew 365Wood, and “other witnesses.” On the libelants' motion Bourne and Wood were rejected by the court as interested in the outcome, thus defeating Bourne's stratagem of conveying away his interest.54 No other witnesses were called by the claimants to testify to the issues which the interrogatories covered, although many of the same questions were asked of the libelants' witnesses on cross-examination during the taking of depositions.

As Adams' minutes (Document II) and those of Whipple (Document III) show, the libelants asserted two principal grounds of condemnation, based on Resolves of Congress and New Hampshire statutes: (1) That the vessel and goods were forfeited as being the property of inhabitants or subjects of Great Britain. (2) That vessel and goods were forfeited because the Lusanna was carrying supplies to the “Fleet or Army” of the enemy.55 To the first point counsel for the captors argued that the evidence of the register and invoices, as well as several depositions, showed that the property in both vessel and goods was Bourne's, not Doane's, and that Bourne by his statements and actions, including insuring the vessel against loss to American privateers, had revealed himself as a loyal subject of the Crown. They also apparently argued that since English insurers would actually bear the loss, the goods were in effect British property. On the second point the libelants urged both the voyage of the Lusanna to Gibraltar in 1776 and her clearance with cargo for Halifax on her last voyage. Adams and Lowell sought to have evidence of the Gibraltar trip rejected as being outside the allegations of the libel, but the court once more ruled against the claimants. As to the Halifax point, the libelants could not offer direct evidence that the cargo was being shipped to the British forces, but pointed again to their evidence of Bourne's loyalist sympathies.

Adams and Lowell argued in opposition that on the facts the property was still Doane's, since Bourne had no authority as his agent to effect a conveyance; in any event, all of Bourne's representations of ownership were a “cover” designed to avert British suspicions. As to Bourne's alleged loyalty to George III, it was part of the “cover,” but even if it had been fact, it could not be imputed to Doane. In his argument as reported by Whipple (Document III), Adams contended that the insurance against privateers was also part of the “cover,” and that merely because it threw the loss on British insurers, it could not be deemed to pass the property to inhabitants of Great Britain. Having previously lost the argument on the relevance of the Gibraltar voyage, Adams and Lowell were forced to take the position that royal forces there were not “the enemy” within the meaning of the applicable statutes, and that the evidence was inadequate 366to show that supplies had actually been transported to the fleet or army. As for Halifax, they argued that the necessities of the situation, rather than loyalist sympathies, explained Bourne's clearing for that port, and that the evidence was to the effect that none of the cargo had been intended for the fleet and army.

Despite these arguments the jury brought in a general verdict for the libelants, and the court decreed the Lusanna and her cargo forfeit.56 The basis of the verdict of course cannot be known, but it can be justified on the facts. The first ground of condemnation urged in the libel, that vessel and cargo were the property of British subjects, should not properly have been the basis of forfeiture. The general situation and the letters and other papers of Bourne and Doane, which the libelants did not impeach, suggest most strongly that the property remained in Doane throughout, and that all actions and representations on Bourne's part tending to the contrary were only a ruse intended to prevent seizure by the British. The libelants offered no evidence that Bourne had used his own funds for goods or credit. Since the vessel and goods belonged to Doane, and his loyalty was unchallenged, the property could not be that of an inhabitant or subject of Great Britain; further, even if Bourne were a loyalist, to the extent that he acted as a British subject or inhabitant, he would seem to have acted outside the scope of the very broad authority given him by Doane, so that the latter could not be charged with such conduct.

The libelants were on stronger ground with the contention that the Lusanna had been carrying supplies to the enemy. The court's decision that evidence of the Gibraltar run was within the libel seems strained, because the analogy to a continuing trespass apparently relied on is dubious. Here two distinct events are in question; moreover, 18th-century practice generally favored an identity of pleading and proof.57 Once admitted, however, the evidence, if believed, provided an arguable basis for forfeiture. Adams urged that the applicable statutes covered only enemy forces actually arrayed against the colonies (Document III), a reasonable construction of the Resolve of Congress. The New Hampshire statute also relied upon by the libelants could be read to include activities in other parts of the world, however.58 If Adams argued that the latter statute did not apply in the face of resolves of Congress which occupied the field, Whipple did not record the fact.

As to the Halifax voyage, once again the New Hampshire act was broad enough to include carrying supplies to the inhabitants of enemy territory, as well as to enemy forces. Even if such a construction were not adopted, the evidence of Bourne's loyalist position, which was damning if the explanation of it was not believed, gave rise to an inference that he was dealing with consignees who would sell to the armed forces, thus indirectly supplying the enemy even in the narrower sense. No troublesome ques-367tions of Doane's liability for these acts of his agent had to be met, because, under the New Hampshire act at least, condemnation turned on the employment of the vessel, rather than on its ownership.59

In fairness to Bourne it should be noted that he had to go to Halifax; he could not leave Britain without clearing for a loyal port, and he could not draw the bulk of Doane's funds except through bills negotiated there, unless he wanted to carry them in specie, subject to both the natural perils of the sea and the danger of British or American naval action. In fairness to the jury, Bourne was in fact headed for Halifax with a history of loyalist sympathy and a cargo consigned there; whatever his intentions, he was still in a position at Halifax to trade with the enemy; and at the trial it was explanations by his counsel rather than hard evidence of his character or motives which were balanced against his prior conduct. Bourne in all probability intended to make for Cape Cod with whatever assets he could salvage as soon as he safely could, but he had sufficiently compromised himself through the exigencies of his situation that he had to bear the risk of being misunderstood. The Portsmouth jury was not only of local origin, but may well have been subject to influence by the McClary owners.60 On the evidence before it, however, the verdict of condemnation was not clearly the result of prejudice and bias.

After the decree the claimants sought an appeal to Congress. This the court denied, on the ground that the applicable New Hampshire statutes provided an appeal only to the state Superior Court.61 Here was the issue which was to keep the case in the courts until 1795—the question of federal against state power. Adams did not participate in the later phases of the litigation, but his argument at Portsmouth reveals that the problems of overlapping jurisdiction were present even on the lower level. He seemed to assume that the resolves of Congress would control, since, as has been noted, he apparently did not argue the point. Thus, not only did he base his argument entirely on those resolves, ignoring the conflicting language of the New Hampshire act, but he, and Lowell also, cited prior decisions from their experience with the Congressional Commissioners of Appeals as precedents for the construction of the resolves.62 In addition, Adams supplied a kind of “horse's mouth” legislative history, both of these statutes and of other Congressional measures, such as the Continental Association 368and Declaration of Independence.63 The jury seems to have ignored these authorities, as well as the implication that they alone were decisive of the case.

The trial of the Lusanna marked the end of Adams' active legal career in a very definite way. According to his Autobiography, it was while he was actually attending in court that “Mr. Langdon came in from Phyladelphia and leaning over the Bar whispered to me, that Mr. Deane was recalled, and I was appointed to go to France.”64 The date of this dramatic episode cannot be determined exactly, since the duration of the trial is not known, but it must have been between 16 December and the 20th, when Ezra Stiles reported in his diary that the news was known in Portsmouth.65 It was almost certainly on the latter date that Adams left for Boston, because he arrived at Braintree on 22 December. On the following day he accepted appointment as a Joint Commissioner to France in a letter to Henry Laurens, President of Congress. He can have had little time or inclination for further involvement in practice during the few short weeks of preparation before his departure from Braintree on 13 February 1778 aboard the Continental frigate Boston.66

The subsequent history of the Lusanna is of great complexity, and can be only sketched here. In March 1778 the case was entered at the Superior Court with Paine now joining Lowell as counsel for the claimants. There the jury disagreed and was discharged. At the September 1778 term of the court at Exeter, the case came on again for a lengthy trial.67 At least 38 new depositions were produced, nearly all of them for the claimants. The areas in which they sought to bolster their case are an interesting reflection of the weaknesses which appeared at the trial in the Maritime Court. Bourne was again rejected as an interested witness,68 but Matthew Wood's testimony as to the voyage out and Shepherd's predicament was 369this time accepted.69 Other witnesses testified to the extent of Doane's credits in the hands of Lane, Son & Fraser; to Bourne's character as a patriot and his occupation as a lawyer with no trading interests, who went to London merely as Doane's agent; to Doane's ownership of a share of the Industry's cargo; to the common practice among American captains of taking out false registers and clearances in British ports to avoid seizure;70 and to Bourne's plans in February 1777 to clear out with false papers and make for home.71

The chief source of contention seemed to be the status of Halifax, a matter which both sides had left to assumption in the earlier trial. The claimants produced at least twelve depositions to the effect that the British garrison there was small and unwarlike, that the inhabitants were friendly toward America, and that the consignees of the Lusanna's cargo were not army or navy supply contractors.72 Here the libelants interposed the only new evidence which they offered, two depositions stating that there was a sizable garrison at Halifax with a real military role, and that a substantial number of naval vessels berthed there.73 Finally, several depositions were offered in behalf of James Shepherd, testifying to his patriotism and to his ownership of the goods which he claimed.74 Despite this mass of evidence, the jury found for the libelants once more. The claimants' appeal to Congress was again refused,75 and on 18 September the Lusanna and her cargo were sold at auction under the court's decree. After court costs of £59 15s. and costs of sale were deducted, the “neat proceeds,” amounting to £3 3,957 10s. 3 1/2d., lawful money, were divided equally between the owners' representatives, Penhallow and Treadwell, and Wentworth, agent for the crew.76

Undismayed by the denial of his appeal, Doane proceeded at once to petition Congress for review, asserting as major defects in the New Hampshire proceedings the prejudice of the local jury in favor of the local owners, and the rejection of Bourne's testimony, which he claimed was vital to his case. On 9 October 1778, his petition was read in Congress and referred to the Commissioners of Appeal.77 In the meantime Congress was occupied 370with the momentous case of the sloop Active, an appeal from the Pennsylvania Admiralty Court, in which the Commissioners had reversed a decree based on a jury verdict in matters of fact. When the Judge and Marshal of the Philadelphia court refused to obey the Commissioners' decree, they suspended activities, and the matter was turned over to a special committee of Congress for study. On 6 March 1779, with the delegates of New Hampshire voting Aye, Congress adopted the committee's findings that Congress by virtue of the war power could try questions of law as well as fact in prize appeals; that no state law could interfere with the right to appeal to Congress in such cases; and that the Commissioners were competent to make a final decree in the case. Although the case of the Active remained unresolved for another thirty years, the Commissioners went back to work.78

The Lusanna was set for trial on 21 June 1779. The McClary party appeared, attacking the jurisdiction of the Commissioners on the basis of the New Hampshire statutes, as well as on procedural grounds, and perhaps also suggesting that the case was moot, the insurance having been paid to the claimants.79 The Commissioners held on 26 June that they had jurisdiction of the case, both by virtue of the original resolves of 1775 and under the resolution adopted in The Active. They declined to proceed, however, until New Hampshire should have time to react to the latter, which had been transmitted to the state legislature.80 Before the Commis-371sioners could take further action, Congress on 15 January 1780 established the Court of Appeals in Cases of Capture, to try all prize appeals from the state courts “according to the usage of nations, and not by jury.”81 The roster of three judges was completed on 4 May, and on the 24th of that month Congress ordered all appeals now pending before it or the Commissioners to be referred to the new court.82

On 1 March 1781, the Articles of Confederation became effective when they were ratified by Maryland, the last state to do so. Although the Articles contained a grant of exclusive federal jurisdiction in prize appeals, which served to confirm the establishment of the Court of Appeal,83 it was not until September 1783 that the Court called the case of the Lusanna for trial. The owners later complained that they had had no time to prepare, but at the argument held at Philadelphia on 11–13 September, both parties were represented by an array of distinguished counsel. After the jurisdictional objection was once more overruled, the case was reargued on the merits, apparently solely on the record and files of the New Hampshire proceedings. Minutes of the hearing preserved in the files of the Court of Appeals indicate that it was in the form of an appellate argument familiar to lawyers today, with considerably more emphasis on legal questions and authority than had been the case at Portsmouth in 177784 The arguments 372presented for the Lusanna prevailed, and on 17 September, the court gave its decree, reversing the sentence of the New Hampshire court and ordering the restoration of their property to the claimants. John Lowell, Adams' assistant at Portsmouth and now a judge of the Court of Appeals, did not take part in the hearing or decision.85

The McClary party now turned to legislative channels for redress. With the support of the New Hampshire legislature and General John Sullivan, who acted as their agent, they sought relief in Congress, complaining of the decision in “a cause so essentially affecting the Sovereignty and Independence of this State, as well as the rights and property of your memorialists,” by an authority “assumed and arbitrary to an extreme, by no means justified by the confederation, even if that had been completed at the time of the trials in this State, infinitely less so, as it was not until long after the sentence of our Supreme judicial Court within the State.” The question was referred to a committee which submitted a report, in Thomas Jefferson's hand, holding that, since the case had arisen and been submitted to the jurisdiction before the ratification of the Articles of Confederation, Congress was ousted of appellate jurisdiction by the New Hampshire statute. In Congress, 30 March 1784, on the question of agreement with the report, the affirmative could not sustain a majority of the states, and the question was lost.86

Confirmed in their victory, the administrators of Elisha Doane (who had died in January 1783)87 and the other claimants set about obtaining satisfaction. Since the Court of Appeals had no power to enforce its own decrees they were forced to turn to the state courts. No record of an attempt to recover in New Hampshire has been found; the steadfast position of 373the state legislature in upholding the earlier decisions of its courts suggests that the effort was not deemed worth making. In June 1784 at the Suffolk County, Massachusetts, Inferior Court, the administrators began an action founded on the Court of Appeals decree. At the February 1786 term, on appeal to the Supreme Judicial Court, the decree was offered in evidence. According to later accounts, it was rejected by Justices William Cushing, Nathaniel Peaslee Sargeant, and David Sewall, on the grounds that the Court of Appeals had lacked jurisdiction and the New Hampshire decree was final. The plaintiffs discontinued their action.88 Again in March 1786 the administrators, as well as Isaiah Doane in his own right and Shepherd, brought suit in the Court of Common Pleas of Philadelphia County, proceeding by way of foreign attachment against a vessel belonging to one of the McClary owners found in Philadelphia. On motion to quash the attachments, the court at the September term, 1787, found it unnecessary to decide the questions of the Court of Appeals' jurisdiction, or whether the discontinuance in Massachusetts was conclusive upon the plaintiffs; it ordered the attachments dissolved, however, holding that a common-law court lacked jurisdiction to enforce the decree of an Admiralty court in a prize case, at least where to do so would raise the question of prize or no prize, which is exclusively of Admiralty jurisdiction.89

The case lay dormant until the new system of federal courts decreed in the Judiciary Act of 1789 was firmly established. Finally in March 1792 the administrators libeled the McClary owners in the United States District Court for the District of New Hampshire, setting forth the decree of the Court of Appeals and asking that it be carried into execution.90 Since John Sullivan, Judge of the District Court, had once acted as counsel for the owners, the action was removed to the Circuit Court for the District of 374New Hampshire under an Act of 1792 providing this procedure for such a situation.91 In October 1793 the case came on for trial in the Circuit Court before Justice John Blair, the only issues being jurisdictional. Blair found for the administrators and directed commissioners to ascertain the damages. A year later, with Justice William Cushing on the bench, the commissioners reported that at the time of the sale under the 1778 decree the Lusanna and her cargo had been worth £5895 145. 10d. Interest from the date of the sale until the date of the report was £5659 175. 4d. On 24 October 1794 Cushing handed down a final decree, awarding the administrators the equivalent sum of $38,518.69, with $154.30 costs, to be recovered in full against any one of the respondents separately.92

The case came up to the Supreme Court on writ of error and was argued and decided at the February term 1795-93 Eight errors were assigned, of which the following were the principal ones: (1) That the decree was void because the Court of Appeals lacked jurisdiction; (2) that it was matter of record that Elisha Doane was dead when the decree issued in his name; (3) that the libel sought performance of the Court of Appeals' decree of restitution, rather than damages for nonperformance; (4) that the decree of the Circuit Court held the owners' agents and the captors' agents each in full damages, although the proceeds had originally been divided equally between them; (5) that there was no jurisdiction in Admiralty of the libel filed in the District Court.94

The seriatim opinions of Justices Paterson, Iredell, Blair, and Cushing, which take up forty-one pages in the printed report, were primarily concerned with the jurisdictional issue.95 All four agreed that the Court of 375Appeals, sitting after the ratification of the Articles of Confederation, was validly constituted and had jurisdiction of the subject matter by the authority of that instrument; thus its ruling that it had jurisdiction in the premises (which could not be overturned by collateral attack) also cured any defects arising from the fact that the case had been filed before the ratification of the Articles. Since the jurisdiction was exclusive, it ousted all claims of the states to create courts of last resort. Only Paterson and Blair clearly held that the inherent war power of Congress was sufficient to validate the jurisdiction in the period before the Confederation. It thus cannot be said that there was a decision of the court on this point.96 Doane's death was held not material, primarily because the action had been in rem, but it was agreed that the question was, in any event, foreclosed by the failure to raise it below. The four justices likewise agreed that the failure to pray for damages was cured by the libel's prayer for general relief; and that the District and Circuit courts had had jurisdiction of the matter in Admiralty, as the only courts competent, and by analogy to the jurisdiction to enforce the decrees of foreign Admiralty courts.

The only disagreement affecting the outcome was in the matter of damages. All concurred that interest should be allowed only from September 1783, the date of the Court of Appeals decree, and that the damages should have been levied severally in proportion to the original award in favor of the McClary. Iredell and Blair held that George Wentworth, the agent for the crew, should not be liable, since he had in good faith paid over the entire sum awarded under a decree binding under state law, without actual notice that the appeal was going forward. Since the court was evenly divided on this point, the prior judgment that Wentworth was liable stood, but the Circuit Court decree was modified so that the smaller interest figure was reflected. The total award was divided into two halves of $16,360.68, one half to be recovered against the agents of the owners, and the other against Wentworth.97

So eighteen years after Adams had argued their case in Portsmouth, the persevering Doanes prevailed. The decision brought a flurry of news-376paper and pamphlet criticism of the court for this blow to the sovereignty of the states, but the court withstood the attack as it has in similar circumstances since.98 Despite the intensity of the appellees' resistance, the Doanes were apparently able to recover about 80 percent of the sum awarded against Penhallow and Treadwell; Wentworth's liability was discharged on his submission of 10,000 acres of land valued at about $3300.99 The Doanes' troubles were not yet over, however. The English insurers of the Lusanna and her cargo, as patient as their erstwhile clients, now proceeded to sue the administrators in the Federal Circuit Court for Massachusetts to recover the sums paid out under the policy. From the beginning the McClary party had pointed to the insurance as defeating Doane, first as a transfer of property, then by making his claim moot through payment. These attacks had been resisted successfully, but now the reckoning must be paid.

Three actions were brought—one against Bourne, one against David S. Greenough (who had married Elisha Doane's widow) “et al.,” and one against Greenough's executors. The last-named suit was dropped in October 1801 as a “misentry.” In April 1802 a jury found a verdict for Bourne, and the suit against Greenough et al. was continued. At the October term 1802 in the latter action it was “suggested that the Plaintiff is dead,” and the case further continued. Finally, in June 1803 neither party appeared. Greenough and Doane now attempted to negotiate a settlement with the insurers. In February 1804 John Lane reported that at least some of the underwriters were ready to settle for their costs, and, in a reply dated 18 May, Greenough and Doane agreed to these terms, “upon condition, that we be secured from any farther suits, &c.” In July, however, Lane wrote that a settlement was not yet forthcoming due to the expense and difficulty of obtaining the consent of the individual underwriters involved. Since no further correspondence has been found, the conclusion of the Lusanna's voyage remains unknown.100

Coll. Doane informs me, that he hath engaged you, in the Cause of 377his Brigantine, and his property found in her, at the time of her Capture;

And as Mr. Paine was not fully engaged at the time you was, he does not attend the Tryal (which is to be on the 16th. of this Month at Portsmouth). I herewith Inclose you a Brief of facts (without many perticular circumstances) which may give you a General Idea of the Question, Wishing it may suffice untill your arrival at Portsmouth; to which place I shall proceed on Tuesday next, not doubting of Seeing you there, the next Saturday night, which (if so) will give me an opportunity of instructing you in every perticular circumstance.

Mr. John Lowell is your assistant. There are three Claims, one in behalf of Coll. Doane for the Brigantine and goods, one other in the Name of Mr. Isaiah Doane, and the third in the Name of Wm. Shepherd.2 The goods Claimed by Isaiah Doane were sold him by me, for which I have given him a Release, (the Sale is Bona fide) to inable me to be a Witness for Coll. Doane.3

Coll. Doane is taking Depositions to his Character as well as Isaiah Doane.4 Mr. Lowell directs us how to proceed, and if any perticular plan be thot of by you, please to write me by the Bearer (Capt. Avory) who will wait your pleasure. By the time you Reach Portsmouth, hope to have it in my power to acquaint you with Every paper filed against us. I think Sir there is an absolute necessity of your beeing at Portsmo. next Saturday night, and wou'd Recommend Mrs. Tiltons House to you, to Lodge at, as I shall provide for the Company there.5 I am with due Respect Sir Your Most Obedt. Hmble Sevt,