Legal Papers of John Adams, volume 2
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