Opinion of Attorney General Jonathan Sewall of Massachusetts in the Case of the Lydia

Abstract

Formal opinions of colonial courts or of colonial attorneys general are rare. Probably they were announced orally by the judges and other legal advisers and lived on only as traditions among the practicing attorneys. If written, they have generally perished with the personal papers of the officials. The opinions of Jonathan Sewall, Attorney General of the Province of Massachusetts Bay from I767 to I769, are almost unknown. He had an outstanding reputation as a member of the Massachusetts bar, but very few of his papers have survived to justify that reputation. However, in a careful search of the in-letters of the Treasury Board in London one such opinion of Attorney General Sewall was found. It is the only formal full opinion of any colonial attorney general on a legal question connected with the enforcement of the British revenue laws in America that has come to light. Quite possibly it is the only one in existence. This opinion, printed below, is of great interest to students of American constitutional development and legal interpretation. Sewall had been directed by the Commissioners of Customs to institute an immediate prosecution of John Hancock on a criminal charge by an Information because Hancock would not permit tidesmen with no legal authority to wander at will over his vessels. This attempt to bring legal action against Hancock was part of a definite political plot by Governor Bernard and the Commissioners to get the Boston merchant. It is the first and only serious attempt to use an information filed by an attorney general instead of an indictment by a local grand jury as the basis for beginning a criminal prosecution. Sewall's refusal to adopt such a novel procedure in the case against Hancock was echoed many years later in the Fifth