Maine's first federal justice instructs a Grand Jury on piracy and taxes (1793)
Sewall, David (1735 – 1825). Charge to the Grand Jury, United States District Court of Maine. Docketed June [and] September, 1793, holograph manuscript, unsigned. 8 pp. 7 x 8 in, bound in string. Creases, light wear to margins, very good or better condition.
The manuscript of a lengthy address to the Grand Jury by David Sewall, one of the first justices appointed under the Judiciary Act of 1789, which established the federal court system. Among the several intriguing features of the document is Sewall’s discussion of piracy – a crime which came before his court in 1790.
A Harvard graduate (1755), David Sewall read law with Judge William Parker in Portsmouth, New Hampshire before opening his own practice in York, Maine, in 1760. As his biographer notes, “His law practice was an immediate success because the only other lawyer in the county was not a college graduate.” Sewall was admitted to the bar in 1763, and received appointments as register of probate in 1766, and Justice of the Peace in 1767. He served on the Massachusetts Council from 1776 to 1778, and sat on the Superior Court (renamed the Supreme Judicial Court) from 1779 to 1789. In 1789, George Washington nominated Sewall to serve as the first justice of the district court of Maine, probably at the recommendation of his college classmate John Adams. He would occupy the post until 1818.
David Sewall (1790), by John Johnston (Bowdoin College Museum of Art)
This document opens with a homily of praise for the Constitution, happily contrasted with the political systems “on the other side of the Atlantic.”
May we Individually and Collectively, so prize and improve the civil and Religious Freedom We enjoy; as to have a reasonable Hope and confidence, that the great Ruler of the university, who setteth up and putteth down the kingdoms of the Earth, as best answereth, the great and important purposes of his Uner[r]ing Wisdom & Will yet more and more enlarge, confirm, and perpetuate them.
For the next several pages, Sewall continues with a discussion of the role of Grand Juries, which he notes are uniquely "adapted for avoiding all the inconveniences, & abuses, which would otherwise arise, from malice, from negligence or partiality in the prosecution of Crimes."
"Piracy is a crime against the universal law of Society, and a Pirate is an Enemy to all the human race, by declaring war against all mankind."
Over the subequent pages, Sewall offers definitions and legal rationales for the delineation of particular crimes, including treason, murder, robbery, and piracy. The latter he discusses at length, in language evocative of John Locke. Piracy, he explained, was less a crime against persons than a profound violation of the social contract:
Piracy is robbery, and depredation upon the high seas. Piracy is a crime against the universal law of Society, and a Pirate is an Enemy to all the human race, by declaring war against all mankind – he has laid all mankind under the necessity of declaring War against him. – He has renounced the benefits and protection of Government and Society. He has abandoned himself to a Savage State of nature; In consequence of which by the laws of self defense, every Community has a right to inflict that punishment upon him, which in a State of nature every individual would be [e]ntitled to inflict for an Invasion of his Person or property.
The matter of piracy was not an abstraction for Judge Sewall. Several years before this document was docketed June 1793, he had presided over the trial of Thomas Bird. It was one of the first criminal cases to be tried in a federal court. It was also the first case of piracy – and the first capital case – to come before the bar in the new nation. Bird, a British mariner, had killed his commanding officer on the sloop Mary around May 1788. The Mary was a slave trader. When the ship docked in Portland in July 1789, Bird and his codefendants were arraigned for piracy by murder on the high seas. They initially appeared before a Massachusetts court presiding in Portland (Maine was administered as a district of Massachusetts until 1819), but the case was transferred to the federal district court. The jury convicted Bird on June 5, 1790, and Sewall sentenced him to death. After an unsuccessful appeal to President Washington for clemency, Bird was executed in Portland on June 25. Sewall's charge to the jury here recapitulates the reasoning underlying his decision.
"To defeat our own revenue laws will be to destroy our Government."
As historians have noted, admiralty cases and cases of debt comprised the primary business of the federal courts in the earliest years. Sewall’s charge to the Grand Jury offers some perspective on what might seem a minor matter to a generation of revolutionaries. Between 1791 and 1794, farmers and distillers in Pennsylvania staged violent protests against the tax on distilled spirits. Sewall drives home the point that impeding Federal officials in the execution of their duties, and attempting “to defraud the Revenue of the U.S. … without [which] it cannot exist” is illegal and unpatriotic. Customs duties, he explains, have a very different valence than they did in the days when James Otis decried the evils of taxation without representation.
Before the American Revolution, when the regulation of our trade was in the hands of a government, in which we had no share … The Revenue Laws were considered by some as a grievance, and an Evasion of them was tho[ugh]t by many to be a venial or trial offence. But if We reflect but a moment, that to defeat our own revenue Laws will be to destroy our Government, a Government that has attracted the notice, attention and admiration of all civilized nations, a Government the most happily adapted to promote and Establish Liberty, Civil and Religious, no one can hesitate in the least to declare; that it is the duty of all good citizens to Observe and Support these laws.
Two paragraphs are appended at the end of the document. One is on the use of evidence, the other notes that there appear to be “no very flagrant violations committed” by the defendants presently before the court. The quality of the ink and the width of the nib suggest not only were these two paragraphs written later than the main text, but that also that they were written on two different dates. This suggests that Judge Sewall likely used the present document for multiple sessions of the Maine district court.
A key document in the history of jurisprudence in Maine (and Massachusetts), and a fascinating window into the federal courts during the earliest years of the American Republic.
General records, including dockets and case files, 1790-1794, Records of U.S. District and Other Courts in Maine 1789-1970, Record Group 21.21.1, National Archives, Boston.
Ingram, Scott. “Presidents, politics and pardons: Washington’s original (mis?)use of the pardon power,” Wake Forest journal of law & policy 8:2 (2018) 259-318
Cushing, John D. First laws of the Commonwealth of Massachusetts (Wilmington, DE: Michael Glazier, 1981)
Genesio, Jerry. Portland Neck: the hanging of Thomas Bird (CreateSpace, 2010)
Hoffer, Peter Charles, Williamjames Hoffer and N. E. H. Hull, The Federal courts: an essential history. Oxford University Press, 2016.
Shipton, C. Kenyon., ed. Sibley's Harvard graduates. Boston: Massachusetts Historical Society 13:638-45
Willis, William. A History of the Law, the Courts, and the Lawyers of Maine, from Its First Colonization. Portland, Bailey & Noyes, 1863.