by Nathan Allen
On September 17th, Vassall filed a petition with Governor Shirley for said appointment and three days later the governor appointed Thomas Hutchinson to the temporary vacancy. In November, with Hutchinson on the bench, Otis’s motion was finally granted and writs of execution issued, but now Otis was not on the scene to supervise them, having left for Halifax, Nova Scotia for his next big case. Without Otis there to motivate them, sheriffs Pollard and Foster exercised less than their usual diligence on behalf of Vassall, and on their returns finally filed in February 1755, both claimed that they could find no property belonging to Fletcher on which they could levy. Personal arrest was impossible because Fletcher had won the Cambridge seat in the House of Representatives, which gave him immunity from arrest during sessions of the General Court.
At this juncture both Fletcher and Otis dropped out of this messy affair, with Fletcher leaving his wife behind and fleeing to the Caribbean and Otis sailing for Halifax, Nova Scotia and his next significant case. Jeremy Gridley assumed the position as Vassall’s attorney and began proceedings against Fletcher’s bondsmen. Because of a defect in the wording of the Tudor-Quincy bond a direct levy failed, and new law suits were necessary, but Tudor ultimately grew exasperated with Gridley’s legal harassment and in March 1756 paid the judgment. Fortunately the glowing characterizations of Fletcher’s uprightness that bondsmen Tudor and Quincy had provided at trial had not prevented them from insisting on security: a mortgage on Fletcher’s Cambridge “mansion house.” Tudor foreclosed on it, and Fletcher neither satisfied his obligation nor returned to Boston. Fletcher’s voluminous correspondence with his lawyer Trowbridge reveals a man of many broken promises and dashed expectations. In June 1756 Fletcher asked Trowbridge to pay Ben Prat, “a good Cockpitt soliciter,” and to retain Colonel Otis to assist in bringing a new action against Vassall; the action never got past the initial writ stage. One can reasonably conclude that Fletcher was never quite the merchant he represented himself to be and that perhaps Vassall’s “garrulity” contained some truth.
Jemmy arrived in Halifax, Nova Scotia by November 1754; it was a purpose-built city, founded for the exclusive function of balancing the threatening French fortress 200 miles up the coast at Louisbourg. The colonists of Massachusetts Bay were shocked when fortress Louisbourg was returned to the French in 1748 in exchange for Madras, India, as the colonists believed that a strong presence on Nova Scotia was vital to the security of the entire region, and the British had no other fortress or major city in the area. The French had sent a fleet containing 11,000 men to reinforce fortress Louisbourg and still controlled much of the area, so it was clear that the French were not done fighting for control of the region – the land or the waters. Parliament agreed that a British presence was needed, and on June 21, 1749, the city and fortress of Halifax was established. Unlike most North American colonies, Halifax was fully funded by the Crown. But this new and substantial British presence on Nova Scotia brought new problems. Regulations regarding trading with French persons and vessels had existed but could hardly be enforced in a place so removed from the British establishment, but now with British courts and officers firmly established in a middle of the region, regulations would become more than mere suggestions. Trade with France – the enemy – would now bring an entirely new level of antagonism and friction to the region, particularly to those merchants and shippers who had previously traded freely with anyone who could pay in hard currency.
Otis’s involvement in the Halifax case likely began on August 31, 1754 when Captain Lott Hall arrived in Boston from Halifax with newspapers that reported a “melancholy Affair.” The Halifax Gazette story was reprinted without comment in the Boston Evening-Post two days later, and it told the tale of murder on the seas: two crewmen of the H.M.S. Vulture, a Sloop-of-War, were killed by the crew of a Boston trading sloop, John Harris’s Nancy and Sally, in a remote cove on the north shore of the Bay of Fundy. The Boston crew members were in the cold, dark Halifax jail awaiting trial for murder. Captain Hall requested immediate legal assistance. John Harris, the small trader in Boston who owned the Nancy and Sally, had no known connection with Otis, but William Bourne, a Halifax merchant and justice of the peace, was a Harvard classmate and Cape Cod neighbor of Jemmy Otis; and the Halifax merchant firm of Ewer and Webb were clients of Otis in a case pending in the Superior Court against Benjamin Faneuil. Thus, Bourne or Ewer and Webb likely recommended Otis. Jemmy and a second lawyer, possibly Oxenbridge Thacher, sailed for Halifax on their mission impossible in early October 1754; the slow motion calamity that was the Vassall case probably seemed tidy and winnable compared to the imbroglio that awaited them. Concurrent with Otis’s arrival, a ship from England docked and delivered Jonathan Belcher, Jr, the son of former Governor of Massachusetts and now a barrister with orders to establish a new Supreme Court of Judicature in the Province of Nova Scotia, ominous circumstances for anyone soon to attempt to win a case in provincial courts.
The events surrounding the Nancy and Sally and her seven man crew characterize a facet of the War for Empire that soon erupted in its concluding chapter, the Seven Years War. The Treaty of Aix-la-Chapelle of 1748 offered but a brief intermission for the principal antagonists, England and France, and not even that for the English settlers and soldiers in Nova Scotia or for the French trappers, settlers, and Jesuit priests of New France. The prickly question of boundaries between these provinces was to be settled by a committee in Paris, including Governor Shirley of Massachusetts, and the predictable lack of progress at these negotiations made much of Nova Scotia a somewhat lawless hinterland, particularly the north shore of the Bay of Fundy and the strategic neck that joined the area to the mainland. The English claimed the Bay of Fundy and its surroundings, but the territory was inhabited and controlled by people who were French in nationality and sympathy.
The situation was so tense and laden with unresolved problems that the colonists of New England had long concluded that another war with France was imminent; despite that, New England merchants were quick to place pounds above principles and carried on a profitable trade with all the French settlements. As the publisher of the Boston Evening Post explained: “By the vast Quantity of Provisions carried to Louisbourg from this Continent, one would be tempted to think, that the English take more notice of Saint Paul’s Advice to the Romans, Chap. XII., ver. 20. than any other part of his writings, viz.--If thine Enemy hunger, feed him; if he thirst, give him Drink.” The British governor of Nova Scotia was more pungent in his report to the Lords of Trade: “We have long suffered great inconveniences by the Boston Vessels trading so much with the French in the Bay of Fundy.” In an attempt to stamp out this “iniquitous Commerce,” the energetic governor had a Royal Navy vessel under his control cruising the Bay of Fundy to discourage Boston interlopers. Captain John Hovey of the Nancy and Sally had a Boston clearance, but he had posted no bond covering the enumerated sugar and tobacco he carried as cargo, and, in addition, he carried a number of hats that were absolutely forbidden commodities, even in intercolonial trade. Captain Hovey surreptitiously traded much of his cargo to the French at Beausejour at the head of the bay, and then attempted to evade the wrath of the H.M.S. Vulture by means of a feigned sale of the ship to the French, but on July 27, 1754, Commander William Kinsey of the Vulture trapped the Nancy and Sally, forcing it to duck into Musquash Cove, a haven near St. Johns too shallow for the much larger sloop-of-war. Kinsey ordered his sailing master, Joseph Marriott, and a midshipman, George Phillips, to take the Vulture’s “barge” with a crew of nine men, and seize the elusive Boston sloop that was hiding in the back of the cove. As the Vulture’s barge approached the Nancy and Sally, it fired a volley of musket shots in the air as a warning signal. Renegade Captain Hovey first ordered one of the sloop’s swivel guns fired wide of the approaching barge as a return warning, but when the gunner took direct aim at the English boat, Hovey panicked and hide in his cabin with his fourteen year old son, the French pilot, and one of the crew. Three of Hovey�
�s men took to fighting; Ben Street, Sam Thornton and John Pastree loaded the swivels and broke out muskets and muskatoons, which were muzzle loading guns that fired a variety of shot in a wildly inaccurate spread that was rarely lethal at its maximum range of about 50 yards, sort of a colonial version of a sawed-off shotgun. After threats and counter threats, the barge pulled alongside the sloop, and one of the Boston men fired his muskatoon at close range, killing one English sailor and mortally wounding another. In archetypal Royal Navy tradition, the Vulture’s remaining able-bodied men stormed the sloop with cutlasses drawn and subdued the rebellious New Englanders. Unfortunately for the Boston men, the usually non-lethal musaktoon proved quite lethal.
H.M.S. Vulture, with the Nancy and Sally in tow and her crew in irons, sailed to Halifax where lawyers took over. The Halifax Vice-Admiralty Court seized the sloop and her cargo for violation of the Acts of Trade and put it all up for auction. William Bourne, Otis’s classmate, bought the sloop “together with all her Guns Tackle, Apparel Ammunition [and] Furniture” for £75. Ewer and Webb, Otis’s clients, bought the 1280 beaver pelts that Hovey had picked up in trade at Beausejour for £350 – half their London market value. The governor first wanted to try them as pirates before a special “commission” as provided by the English statutes governing pirate trials in the colonies, which provided for fast and brutal justice, but fortunately for the “pirates” the governor discovered that such a trial was impossible without a special commission issued by the King or the “admiralty in England,” and this vital document had been overlooked in the hasty establishment of the new town a few years prior. There were two alternatives: send the prisoners to England for trial under an older statute, an expensive and time consuming procedure of dubious legality, or try them for common law murder in the province. While the governor was considering the choices, John Duport, a justice of the peace, took sworn depositions from four of the men in the Vulture’s barge, and unsworn statements from Hovey and his crew, before committing the entire Boston crew to jail pending action by the grand jury. Further complicating an already complicated situation, John Hovey, the master of the Nancy and Sally, escaped from jail with outside assistance and disappeared.
Into this mess walked the lawyers and judges. Though the governor and Belcher had their disagreements, the governor was probably glad to cede the pirate case to his new chief justice. On October 29, the first day of the Michaelmas Term, Chief Justice Belcher – in a scarlet robe – members of the Council, the tipstaff, and members of the bar in their gowns, began the first session of the term, which commenced at a tavern “where an excellent breakfast was provided,” and, after heard the required sermon undoubtedly on some variation of justice. Full of food and preaching, they marched to the Court House where Belcher was formally commissioned. Belcher issued “Directions for the Conduct of Practitioners,” and then empanelled the grand jury. Later that day the jury returned with an indictment for John Hovey stating that “not having the fear of God before his eyes … feloniously, willfully and of Malice aforethought and by … his Command … did kill and Murder said Isaac Jolly and John McDermott against the peace of our said Lord the King his Crown and Dignity.” Of course, the absconded captain failed to answer “though thrice called,” and Justice Belcher ordered that he should be prosecuted “to an Outlawry.” This technical procedure for dealing with fugitive felons was of tremendous rarity in the colonies, and in view of the Halifax Court’s failure to prosecute it seems likely that Belcher assumed Hovey would never be seen again. The grand jury declined to indict the French pilot, Hovey’s son, and two other crewmen, but they did indict Street, Thornton, and Pastree for murder. But now the critically significant problem of jurisdiction had to be resolved. Crimes committed “on the seas” were traditionally within the jurisdiction of the Lord High Admiral and his Admiralty Court rather than with the common law court, and Admiralty Court adhered to the civil law wherein juries were optional and the crime of manslaughter was nonexistent; Admiralty Court was about judges and murder.
For a defendant who may plead to manslaughter or may plead for his life to a jury of his peers, the issue was far from a scholarly technicality. Under Henry VIII, a statute against piracy and other crimes on the seas had been enacted that required trial by a commission that included admiralty judges, but which proceeded “in the course of the common law,” which included a full scope of juries. The escalation of American trade and American piracy rendered this system impractical because of the difficulty of transporting defendants and witnesses to England for trial. Thus in 1700 a new practical and efficient statute was enacted that established special commissions for the trial of pirates in the individual colonies, but to avoid the bias of local and sometimes pirate-friendly juries, these commissions were to follow the juryless civil law in the traditional admiralty pattern. The new practical and efficient act proved to be only new as it omitted murder as a specific crime and covered crimes “committed in or upon the sea, or in any haven, river, creek, or place where the admiral or admirals have jurisdiction” without defining “upon the sea,” or “where the admirals have jurisdiction.” These defects were compounded by the provision that the commission’s jurisdiction was exclusive, meaning that only the commission could try cases within its unspecified jurisdiction. The traditional view that the Admiral had jurisdiction over bays and rivers up to the first bridge had been seriously challenged by Lord Coke in the course of his extension of the jurisdiction of the common law courts. By 1754 there was substantial precedent that bays and river mouths behind a line drawn “between the headlands” were “within the county,” thus giving the common law courts at least concurrent jurisdiction in such places – a concurrent jurisdiction that was supposedly not possible. The prospect of a common law trial embittered Commander Kinsey who had lost two sailors and any share in the proceeds of the condemnation of the Nancy and Sally when Henry Newton, Halifax collector of customs, claimed the “informer’s share.” Now he could imagine the opportunity of a local jury acquitting the Boston men. Commander Kinsey wanted the Boston men tried as pirates, so he filed a “Memorial” with Chief Justice Belcher urging that the proceedings be delayed until authorization for a piracy commission could be obtained from England or that the prisoners be sent to England for trial under the statute of Henry VIII. Jemmy Otis argued vigorously in favor of local jurisdiction and a quick jury trial. For a defense lawyer to argue for a speedy trial is risky, but the possible alternatives, all of which entailed the term “pirate” and lacked the term “jury,” were treacherous for defendants who clearly committed the crime. So Jemmy Otis enthusiastically urged Chief Justice Belcher to take jurisdiction, and not surprisingly, Chief Justice Belcher took jurisdiction.
Under common law each defendant was granted twenty peremptory juror challenges, which gave the Boston lawyers sixty opportunities to challenge jurors without cause. Since Halifax had been founded in 1748 in order to create a fortified port to counterbalance Louisbourg, Whitehall encouraged discharged English army personnel to settle there and fueled this encouragement with direct Parliamentary grants. But New Englanders were not immune to the prospect of free land, no taxes, and the proximity of the fish rich Grand Banks; a vigorous advertising campaign in the Boston newspapers informed the general population of this new Eden. The peremptory challenges permitted Jemmy Otis to cull relocated Bostonians from the discharged English army personnel. The number of peremptory jury challenges exercised is not known, but the effect was documented by Commander Kinsey when he commented indignantly that the twelve-man jury finally selected included ten New Englanders. Jemmy had done his work.
Acting Attorney General William Nesbitt made his opening statement and paraded the crown witnesses to the stand where they recited the now well-known story of the Battle of Musquash Cove. The clerk did not record the questions asked on cross examination, but the recorded answers divulge the theory of the defense. It was incontestable that men were killed. It was therefore necessary to establish some justifi
cation for the killing. The jury had to be persuaded that a barge sailing from a sloop-of-war flying the Royal Ensign and manned by a crew of Royal sailors was a pirate or Indian attack or doubt had to be fomented in the minds of the jurors about the legality or motivation of Commander Kinsey’s mission. Doubt lurked in the questions was the H.M.S. Vulture visible from the Nancy and Sally? how were the English sailors clothed? had Kinsey ordered the seizure in his capacity as a Royal Navy commander or as a customs officer? who fired the first shot?
According to common law criminal procedure, the indicted could not testify in his own behalf, so Jemmy Otis called the French pilot and the seamen who had not been indicted to the stand, and the questions were asked. At the point that the waters were muddied to his satisfaction, Jemmy rested for the defense sending the jury to decide the fate of the three men. They returned quickly with a verdict of guilty – of manslaughter. Chief Justice Belcher was incensed but helpless. Without delay, the convicted prisoners “beg’d they might be allowed the benefitt of the Clergy which was allowed them.” The “benefitt of the Clergy ” was a remnant of the middle ages originally designed to protect the clergy from the King’s courts; by the 18th century it had become a significant ingredient in English criminal law by providing leniency for first-time offenders. Had the men been tried as pirates, “benefitt of the Clergy” would have been unavailable to the convicted Bostonians since it was specifically excluded by the statutes. As it was, all Chief Justice Belcher could do was “to pass Sentence, that they … should be burned in the Hand, and that they should remain in Prison for the space of Nine Months.” And the court record concludes: “Pursuant to which Sentence the said Benjamin Street, Samuel Thornton, and John Pastree were in open Court, burned in the Left Hand with the Letter ‘M’ and … given in Charge to the Goaler.” Since a convict could only plead “benefitt of the Clergy” once in his life, pleading “benefitt of the Clergy” entailed being branded on the hand so that “clergy” couldn’t be used again.
