24 John Adams and the Whale
ANDREW LEWIS (LONDON)
John Adams, second President of the USA, was a lawyer by profession. Like other self-taught eighteenth century lawyers his preparation for practice had been based upon reading and amongst his books were civilian texts.[627] His diary records his forays into Vinnius as well as Wood’s Institutes.[628] There was little scope for the direct application of Roman law learning in contemporary Massachusetts but the one forum that did expect its practitioners to show some familiarity with it was the Vice Admiralty Court established in Massachusetts following the passing of the Navigation Acts 1696.[629] Procedure in the court folÂlowed that in the English Admiralty and a copy of the 1727 edition of the stanÂdard text, Francis Clerke’s Praxis Curiae Admiralitatibus Angliae, now in the Harvard Law Library, is thought to have once been in Adam’s possession.
For the most part the Vice Admiralty Court was treated with reserve and its main business was the litigation of seamen’s wages: other cases were tried at common law if at all possible. This may have been because the Admiralty court was too closely associated with the customs for colonial sensibilities though this sensiÂtiveness must have been reinforced by the typical lawyer’s preference for known over unfamiliar procedures.In 1766 Adams was retained for the plaintiff in a whaling case, Doane v. Gage, which was brought in the Admiralty court. Doane and Gage were the capÂtains of two whalers whose boats had gone after the same whale. A harpoon from one of Doane’s boats struck the whale which immediately sounded, drawÂing line out after it. When the whale surfaced it was struck by a second harpoon, thrown by Gage himself from his boat. At some point, about which there was conflicting evidence, Doane’s line ceased to be attached to the whale.
On this the case depended, Gage claiming that at the point when his harpoon went home Doane was no longer “fast” to the whale. Gage had a good prima facie title: he had been able to land the whale and sell its proceeds. To succeed in his claim, Doane had to show that the whale had been his at the time of the second strike and that in the ensuing confusion he had been unfairly deprived of possession.There was no doubt but that by long-standing whaling custom a whale belonged to the first to strike it, even if others had been instrumental in killing it or bringing it to land, so long as the first to strike remained fast or attached. Once a whale was loose, and no longer attached, it was again open to the first taker. This custom formed the basis of many a judgment in the Massachusetts common law courts where most whaling disputes were pursued, the litigation mostly depending, as in Doane v. Gage itself, upon conflicting testimony as to the sequence of events.
Not surprisingly the whaling custom mirrors the ius commune on the capture of wild animals. The position adopted by Justinian is stated in his Institutes:
“Illud quaesitum est, an, si fera bestia ita vulnerata sit ut capi possit, statim tua esse intellegatur. quibusdam placuit statim tuam esse et eo usque tuam videri, donec eam persequaris: quodsi desieris persequi, desinere tuam esse et rursus fieri occupantis. alii non aliter putaverunt tuam esse, quam si ceperis. sed posteriorem sententiam nos conÂfirmamus, quia multa accidere solent, ut eam non capias.” (Inst. 2.1.13)
“The question was raised whether wild animals, which have been so wounded that they could be captured, forthwith become yours. In the opinion of some, it is held to be yours at once, so long as you pursue it: but, should you give up the chase, it is no longer yours and is again open to the first taker. Others held the view that it becomes yours only if you actually take it. We give our authority to the second view, for many factors may arise by reason of which you do not take it.”][630]
The Digest reveals the origin of the divergent view.
An extract from Gaius’ res cottidianae quotes the opinion proffered by Trebatius writing in the time of Augustus:“Illud quaesitum est, an fera bestia, quae ita vulnerata sit ut capi possit, statim nostra esse intellegatur. Trebatio placuit statim nostram esse et eo usque nostram videri, donec eam persequamur, quod si desierimus eam persequi, desinere nostram esse et rursus fieri occupantis: itaque si per hoc tempus, quo eam persequimur, alius eam ceperit eo animo, ut ipse lucrifaceret, furtum videri nobis eum commisisse. pleriqui non aliter putaverunt eam nostram esse, quam si eam ceperimus, quia multa accidere possunt, ut eam non capiemus: quod verius est.” (D.41.1.5 Gaius 2 rerum cottidia- narum sive aureorum)
“The question has been asked whether a wild animal, so wounded that it may be capÂtured, is already ours. Trebatius approved the view that it becomes ours at once and that it is ours so long as we chase after it; but, if we abandon the chase, it ceases to be ours and is open to the first taker. Hence, if, during the period of our pursuit, someÂone else should take the animal, with intent to profit thereby, he is to be regarded as stealing from us. The majority opinion was that the beast is ours only if we have actuÂally captured it because many circumstances can prevent our actually seizing it. And that is the sounder opinion.”[631]
It is of some interest that Gaius thought Trebatius' view worth recording, though he may have disagreed with it. It is possible that the concluding phrase of the Digest passage quod verius est is a compilatorial interpolation preparing the way for the final resolution of the problem in the Institutes.[632] Still more interÂestingly, when Justinian's compilers came to compose this section of the Institutes, using as elsewhere material from Gaius, they chose to preserve Trebatius' aberrant opinion though attributing it to “certain persons”. They even attribute to “some” what Gaius considered was the view of “most people” (plerique).
It is possible that the compilers had access to texts which revealed that Trebatius' view was more widely canvassed in classical law than would appear.[633] A more cynical view would be that they artificially created the impresÂsion of a dispute so as the more clearly to settle it.[634] [635]Adams had read his Justinian on the capture of wild animals. In his earliest diary there are notes of his reading in van Muyden's Tractatio Institutionum Justiniani (Utrecht, 1707) which include Inst. 2.1.12.9 The “Notes of Authorities” which he prepared for Doane v. Gage show that he then read deeper into the civilian authorities, quoting the two Roman texts set out above as well as extracts from Grotius.[636]
Trebatius' opinion was certainly in Doane's favour. There was no dispute but that he struck the first blow. His boat, whether towed along by the whale or no, remained in close pursuit up to and beyond the point where Gage’s harpoon struck home. So long as the pursuit lasted, for Trebatius, Doane’s initial acquiÂsition entitled him to the whale and any interference by others amounted to a theft of his property. Such an argument, based entirely upon a Roman authorÂity, would stand little chance in a common law court. In Admiralty, used to citaÂtions of Roman texts, it might do better. Perhaps here we have the explanation for the plaintiff’s initial decision to sue in the Admiralty Court. It is unlikely that Doane himself took this decision, he had previously litigated whaling cases at common law. It was seemingly Adams’ first Admiralty case (though he had othÂers after) so it was not his familiarity with that tribunal which founded the deciÂsion. One of the consequences of the decision to sue in the Admiralty was the creation of a large archive of depositions from witnesses, seventy-four in all, taken by commission in the usual civilian way. These have been preserved and enable us to see that, unsurprisingly given the confusion of the circumstances and the partiality of all involved, the evidence was contradictory.[637] What Adams needed was an argument which would succeed even if what Gage’s witÂnesses said was true.
He must have been persuaded that the Roman material offered such an arguÂment. Coquillette has suggested that he was misled by Grotius, offering as demonstration a quotation from the English translation of De Jure Belli ac Pacis Adams was using. According to Coquillette “Adams’ key point—rather conÂtrary to the whalers’ custom—was that once an animal was acquired by possesÂsion (presumably by being hit with his client’s harpoon) that â€?Property acquired by Possession does not cease with the Loss of Possession’ ”.[638] But nothing in Adams’ papers suggests that he misread Grotius in this way: on the contrary he cited an extended quotation in which Grotius paraphrases the effect of Inst. 2.1.12: “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”.[639] Adams cannot have so simply misled himself from reading Grotius giving Justinian’s solution. Rather he must have hoped to do something with Trebatius’ very difÂferent opinion that in the case of wild beasts it was possible by maintaining the chase to support an initial taking even in the absence of continued possession and control.
Did Adams initially misunderstand his Roman authorities? If he thought that Trebatius’ argument offered his client an argument bypassing the usual appliÂcation of the whaling custom in the common law courts this would explain the unusual decision to take the case to Admiralty. If so he cannot have remained of this opinion for long. Careful consideration of the texts cited in his “Notes of Authorities”, will have led him to the realisation that Trebatius' view was only preserved in the Roman sources as a contrast to the accepted one. No court, even of Admiralty, could have been persuaded to adopt as authority an opinion so categorically rejected by Justinian.
In the end the case did not come before the Vice-Admiralty Court.
Adams accepted for his client a proposal to go to arbitration. The result of the arbitral proceedings, which must have depended upon a weighing of the evidence of the seventy-four witnesses, is not known. We might suppose that we would have heard of it if Adams had won for Doane. The most likely explanation of Adams' willingness to accept arbitration is the realisation that he had no substantial argument to offer his client whether in Admiralty or elsewhere and that this was the only way to rescue what was, and had always in truth been, a fairly hopeless case.If this makes sense of the course of proceedings in Doane v. Gage it also throws some light on Adams' view of the potential of civilian learning. He was in the end wrong to think that civilian arguments about wild animals would lead to a different result from the established whaling custom, and this reveals the limitations of his understanding of the course and influence of the ius commune. But he had been willing to consider the possibility that Roman law would reach a conclusion different from that prevailing in the common law courts and the narrow professional world of whaling. Such a willingness to seek and adopt a wider, more universal, solution, fits well with Coquillette's thesis that Adams, influenced by Gridley, saw in the civilian learning an intellectual world wider than that offered by the common law.[640] Such a humanistic perspective is entirely in keeping with the traditions of Roman law learning in the USA, not least in the practice and thought of our honorand, Alan Watson.