Journey to the Jones Act, U.S. Merchant Marine Policy 1776-1920

Traces the history of U.S. merchant marine policy culminating in the “Jones Act” which is in the current news every day, as told through the characters and events that shaped that policy.   U.S. merchant marine policy dominated in the early years of the United States because of the importance of the industry then and was fought over bitterly by the political parties in the late 19th century and early 20th century.  The “Jones Act” in 1920, although not widely known today, was mainly about what to do with the huge fleet of vessels built by the U.S. Government for World War I, the largest national industrial effort to that time and not surpassed until World War II.

[Excerpt]

Chapter 3 – Setting the American Maritime Policy Stage

          The English Navigation Acts played an uncertain role in the American Revolution.  The Declaration of Independence included as a “cause” for seeking independence the “cutting off our Trade with all parts of the world,”[i] which is exactly what the Navigation Acts were designed to do.  This reflects the view that the colonies chaffed under the Navigation Acts and saw those Acts as part and parcel of overbearing English rule.[ii]

Another view is that the Navigation Acts did little overall economic harm to the American colonies and bound the colonies to the mother country in ways that were mutually beneficial.[iii] It was only when England started on a path of heavy-handed regulation meant to raise revenues in 1764 that the seeds of revolution were sown.

That regulation accelerated with the arrival of newly appointed Commissioners of Customs in Boston in 1767 who were charged with enforcing British customs laws.[iv]  The case of the sloop Liberty, owned by Founding Father John Hancock and seized by British authorities in 1768, is a good example of this new level of enforcement.  The episode fomented rebellion setting the colonies on a course of independence.

The Sloop Liberty[v]

The Navigation Acts required that all goods shipped to the colonies had to travel via England where they were landed, inspected, and applicable duties paid before being shipped to the colonies.[vi]  Thus England became by law the entrepôt of the colonial trade.  Certain items were exempted from this requirement such as “Servants or Horses” from Scotland or Ireland and “Medera’s Wines.”  This latter exemption may have had a connection to the 1662 marriage of King Charles II to Catherine of Braganza who was from Portugal.  The exemption more likely arose from the fact that the islands of Medeira were a natural stopping point for vessels sailing across the Atlantic Ocean.

Madeira wine, which was fortified with alcohol so as not to spoil during the long sea voyage, became very popular in the colonies especially after it was discovered that a long sea voyage in wooden barrels in warm temperatures improved the wine according to the tastes of the time.[vii]  George Washington, among others, was fond of madeira and regularly ordered it for his estate and then during his service in the Continental Army.

England incurred a substantial debt in fighting the Seven Year’s War against the French (the “French & Indian War”) and sought revenue from the colonies to help repay it.  The first revenue act was the famous Sugar Act of 1764 (also known as the American Revenue Act of 1764).[viii]  Although the Act reduced the tax on molasses, it also contained tax increases, including a new stiff tax on madeira wine.[ix]

The colonials reacted by evading the tax through even more smuggling or by bribing customs officials than they had done before.  A typical ruse was to declare only part of the actual cargo upon arrival and to bribe the customs official to ignore the undeclared portion.   Britain reacted with a series of stringent enforcement regulations including the Townsend Acts.  One of those Acts, the Commissioners of Customs Act of 1767,[x] created a Customs Board of five customs commissioners to be headquartered in Boston to oversee enforcement for all the American colonies.

When the commissioners first arrived in Boston in November 1767, Sir Francis Bernard, Governor of the Province of Massachusetts Bay, requested that the corps of cadets, the Governor’s ceremonial bodyguard commanded by John Hancock, act as the guard of honor for the commissioners.[xi]  Hancock refused.  Later he also refused to attend a ceremonial dinner where the commissioners were present – both calculated acts of opposition to stepped-up customs enforcement.

An unruly group of Bostonians actually met the commissioners at the dock wearing messages which said “Liberty, Property, and no Commissioners.”[xii]  The commissioners, expecting they may need military assistance to enforce the customs laws, requested that warships be sent from Halifax, and the substantial man-of-war H.M.S. Romney (possibly the largest vessel to enter Boston to that point) and two armed sloops were sent.[xiii]  All were in Boston harbor when the authorities seized the Liberty on June 10, 1768.

The 90-ton Liberty owned by Hancock, arrived in Boston from Madeira on May 9, 1768.  Twenty-five casks of madeira were declared, and the duties paid.[xiv]  That was a cargo size much smaller than the vessel’s capacity.  In later litigation, it was alleged that the vessel had in fact had a cargo of 100 “pipes” of madeira, which was a standard shipping measurement holding about 110 gallons.[xv]  Hancock let it be known at the time that he intended to evade customs with his cargo of madeira.[xvi]  The two customs officials who boarded the vessel did not report, however, anything untoward — at the time.

A new cargo of 200 barrels of whale oil and 20 barrels of tar were later loaded onto the vessel.  On June 10, customs officials showed up at the dock unannounced, searched the vessel and had the vessel seized by members of the Romney crew who towed her out into the harbor.  One of the British Navy officers who participated in the operation recorded in his journal that the “Towns people . . . pelted us severely with Stones.”[xvii]

The seizure pretext was the failure to post a bond before such cargoes were loaded onto the vessel.[xviii]  The long-standing practice had been the posting of a bond after the vessel was fully loaded but before the vessel departed.  In other words, the seizure arose from the new cargo, not the cargo of madeira.  The commissioners were technically correct in the application of the law – but contrary to everyone’s reasonable expectation as evidenced by the fact that this was the first such seizure.[xix]

A riot started motivated by the knowledge that if the seizure of the vessel and its cargo resulted in a forfeiture and it held up in court, Governor Bernard would get a third of the proceeds, the customs officials involved would get a third as the “informants,” and the British Government a third.[xx]  Adding to the mob’s anger was the fact that the Romney was forcibly taking men from inbound vessels at the time to serve as British Navy sailors.  Lt. Gov. Thomas Hutchison writing to a colonial agent in England on June 16 said that “it is unfortunate that in the midst of these diff. the Romney has been pressing Seamen.”[xxi]

In the same letter, Hutchison described the scene as the Liberty was taken from the pier — a “Mob presently gathered and insulted the Custom H Offic and carried them in triumph as trespassers up the Wharffe tore their cloaths and bruised and otherways hurt them until one after another they escaped.”[xxii]  The mob also hauled the Collector of Customs’ private boat out of the water and burned it.

The commissioners fled for their lives to the Romney and later to Castle Williams in Boston harbor and did not return to Boston until November when there were three British Army regiments in Boston.[xxiii]  The presence of British Army troops in Boston would lead to other problems regarding quartering and later the Boston Massacre in 1773.

After the Liberty was condemned and sold in September, a related case was brought against Hancock in Admiralty Court where the case would be tried without a jury.  The charge was smuggling madeira.  One of the customs officials who had boarded the Liberty in May and had not reported anything amiss immediately after that visit changed his story.  In early June, he claimed that he had been manhandled, offered a bribe, and locked in a cabin so as not to see what other cargo was being unloaded.[xxiv]

The claimed penalty amount was substantial based on the treble damages provision in the Sugar Act[xxv] – more than enough to make the Governor and customs officials rich and possibly financially ruin Hancock and his co-investors.

Hancock hired John Adams as his lawyer who ably defended Hancock arguing that the treatment of Hancock had put him “below the Rank of an Englishman.”[xxvi]  Due to that defense, or perhaps because the evidence against Hancock was flimsy (including the changed, arguably perjured, story), or maybe because it had become clear in Britain that the colonial officials were engaged in a shake-down of Hancock, the charges were dropped in March 1769.[xxvii]

The role of the Liberty in colonial dissatisfaction was not, however, over.  She had been seized, condemned, and purchased by British customs officials and converted into a customs enforcement vessel – the H.M.S. Liberty.  Her commander, William Reid, became notorious in Connecticut and Rhode Island for his zealousness.[xxviii]  On July 17, 1769, the Liberty brought to Newport, Rhode Island two detained vessels — a brig commanded by Joseph Packwood and a sloop, the Sally, commanded by Edward Finker.

It turned out that Capt. Packwood had filed all his necessary paperwork and so the seizure was unwarranted.  While his paperwork was being checked, Packwood went back to his vessel anchored in the harbor to retrieve his sword and clothing.  The officer then in command of the Liberty “refused to let him bring away, and ‘tis said, offer’d him Violence; which reduced Capt. Packwood to the necessity of drawing his Sword, to force his Way into his Boat, whereupon the Officer call’d to the Liberty’s People to fire on Capt. Packwood as he was going ashore.”[xxix]

According to subsequent government public notices, then “a great Number of People, riotously and tumultuously assembled together, in the Evening of the 19th of July last, and having, by Force and Arms, attacked and secured the said Captain Reid and his Men, and taken Possession of both Vessels; they set Fire to, and sunk the Liberty.”[xxx]   The two small boats of the Liberty were also burned after being taken to the site of what is now Equality Park in Newport, and the Sally escaped during the tumult.  Capt. Reid, who was ashore with his wife, was unharmed.[xxxi]

A plaque was placed in 1949 where the boats were burned which says that – “On this old common the boats of HMS Liberty were burned July 19, 1769 by the citizens of Newport who had previously fired upon and destroyed the sloop.  This was the first overt act of violence against Great Britain in America.”[xxxii]

In the war of independence that followed, the colonies had to deal with the possibility of no longer being within the British navigation act system if they achieved independence.  Revolutionary leaders had to anticipate a period of commercial disengagement and re-engagement as an independent nation into the international economic system.  Such re-engagement would occur on a country-by-country basis with France as the test case.

[i] Available at www.archives.gov/founding-docs/declaration-transcript.

[ii] Larry Sawers, “The Navigation Acts Revisited,” The Economic History Review 45 (May 1992): 262-284.

[iii] For example, Oliver M. Dickerson, The Navigation Acts and the American Revolution (New York: Octagon Books, 1974), reprint.

[iv] Ibid., 208.

[v] Two of the classic works describing the circumstances of the seizure and forfeiture of the sloop Liberty and the subsequent suit against Hancock are:  George G. Wolkins, “The Seizure of John Hancock’s Sloop ‘Liberty,’” Proceedings of the Massachusetts Historical Society 55 (1921-1922): 239-284; and Oliver M. Dickerson, “John Hancock: Notorious Smuggler or Near Victim of British Revenue Racketeers,” The Mississippi Valley Historical Review 32 (Mar. 1946): 517-540.  There is also a description in:  the “Adams Papers – Digital Edition,” Massachusetts Historical Society, masshist.org/publications/adams-papers; Dickerson, The Navigation Acts and the American Revolution 231-250; and John Philip Reid, In a Rebellious Spirit – The Argument of Facts, the Liberty Riot, and the Coming of the American Revolution (University Park, Pennsylvania and London: The Pennsylvania State University Press, 1979).

[vi] 15 Car. II, c. 7.

[vii] A discussion of the madeira trade and its American consumption is contained in David Hancock, Oceans of Wine – Madeira and the Emergence of American Trade and Taste (New Haven: Yale University, 2009).

[viii] 4 Geo. 3, c. 15.

[ix] Wolkins, “The Seizure of John Hancock’s Sloop ‘Liberty,’” 240.

[x] 7 Geo. III, c. 41.

[xi] Dickerson, “John Hancock: Notorious Smuggler or Near Victim of British Revenue Racketeers?”, 527-528.

[xii] Dora Mae Clark, “The American Board of Customs, 1767-1783,” The American Historical Review 45 (Jul. 1940): 777-806, 785.

[xiii] The Commissioners requested navy support on February 12, 1768.  Wolkins, “The Seizure of John Hancock’s Sloop ‘Liberty,’” 278 (Letter from Commissioners of Customs to Commodore Samuel Hood).

[xiv] Dickerson, “John Hancock: Notorious Smuggler or Near Victim of British Revenue Racketeers,” 517-528.

[xv] Hancock, Oceans of Wine – Madeira and the Emergence of American Trade and Taste, 20.  The later “Information” against John Hancock charged that the Liberty unlawfully put ashore without paying the duty on 100 “pipes” of wine.  Legal Papers of John Adams, Vol. 2, Mass. Historical Society Digital Edition, available at masshist.org/publications/adams-papers.

[xvi] Opinion of William DeGrey (Jul. 25, 1768) reprinted in Wolkins, “The Seizure of John Hancock’s Sloop ‘Liberty,’” 272-275.

[xvii] James C. Brandow and William Senhouse, “Memoirs of a British Naval Officer at Boston, 1768-1769, Proceedings of the Massachusetts Historical Society 105 (1993): 74-93, 80.

[xviii] Dickerson, “John Hancock: Notorious Smuggler or Near Victim of British Revenue Racketeers,” 518-520 (“The riot was undesired by the Boston leaders and unfortunate; but it was such a plain case of public plunder . . .”.).

[xix] Dickerson, “John Hancock: Notorious Smuggler or Near Victim of British Revenue Racketeers?”, 519-520; Dickerson, The Navigation Acts and the American Revolution, 219-221.

[xx] Ibid., 520-521.

[xxi] Wolkins, “The Seizure of John Hancock’s Sloop ‘Liberty,’” 283.

[xxii] A similar description appears in a letter from Gov. Bernard to Wills Hill, Earl of Hillsborough, dated June 11, 1768.  Available at colonialsociety.org/node/2861 (Vol. 86: The Papers of Francis Bernard, vol. 4: 1768, No. 623).

[xxiii] Clark, “The American Board of Customs, 1767-1783,” 787.

[xxiv] Wolkins, “The Seizure of John Hancock’s Sloop ‘Liberty,’” 251-252.

[xxv] David S. Lovejoy, “Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764-1776, The William and Mary Quarterly 16 (Oct. 1959): 459-484, 479.

[xxvi]  Josiah Quincy, Junior, Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, Between 1761 and 1772 (Boston: Little, Brown, and Company, 1865), appx. I, p. 460.

[xxvii] Dickerson, “John Hancock: Notorious Smuggler or Near Victim of British Revenue Racketeers?”, 538-540.

[xxviii] Constance D. Sherman, “An Account of the Scuttling of His Majesty’s Armed Sloop Liberty,” The American Neptune 20 (Oct. 1960): 243-249.

[xxix] “Newport, July 22,” Connecticut Journal (Jul. 28, 1769), 4; “Newport, July 22,” Connecticut Currant (Jul. 31, 1769), 3.

[xxx] “Advertisement by the Commissioners of his Majesty’s Customs,” Newport Mercury (Aug. 21, 1769), 1; “A Proclamation by the Honorable Joseph Wanton, Esquire, Governor, Captain-General, and Commander in Chief, of and over the English Colony of Rhode Island, and Providence Plantations, in New England, in America.” Newport Mercury (Jul. 24, 1769), 3.

[xxxi] Sherman, “An Account of the Scuttling of His Majesty’s Armed Sloop Liberty,” 248.

[xxxii] Brian M. Stinson, Newport Firsts – A Hundred Claims to Fame (Charleston: The History Press, 2018), ch. 13.

Constantine G. Papavizas, who goes by Charlie, is a leading practicing maritime attorney in the international law firm of Winston & Strawn LLP who has written extensively on the Jones Act as it works today in a variety of magazines and scholarly publications and is frequently quoted in the press on maritime subjects.