On the 250th anniversary of the Stamp Act, UVA Law Library staff opened an uncataloged collection of Scottish Court of Session papers and unwittingly discovered new materials on this momentous event in American history. The case of Scrimgeour & Son v. Alexander & Sons quickly caught our eye since North Carolina and Virginia appeared on the first pages of case documents. Stamp Act protests rocked North Carolina’s Cape Fear River in 1765 and 1766, halting trade and trapping the Scottish ship Duke of Athol in Wilmington. In a subsequent suit before the Court of Session, the Scottish merchants who owned and freighted the ship quarreled over who would pay for the vessel’s lengthy delays. The case summaries and petitions they drew up now form part of the Court of Session Collection at the UVA Law Library. The wealth of detail included in these documents provides a new perspective on the Stamp Act, revealing the disruptive power of colonial protests on both a local and transatlantic level.

John Cowan, captain of the Duke of Athol, found himself caught in the midst of this imperial crisis in October 1765 with the Stamp Act set to take effect on November 1 and his ship readying to depart North Carolina for Scotland. Cowan needed a paper clearance to avoid seizure by the British navy patrolling the entrance to the Cape Fear River. The Stamp Act placed a new tax on these customs forms, as on all newspapers, legal documents, and most printed papers. Cowan would owe four pence per sheet, and an embossed paper stamp would be affixed to the clearance as proof of payment. These impending stamp duties drew outrage from American colonists, however, who targeted for public attack anyone who accepted stamps.

Uprisings against the Stamp Act broke out just one day after Cowan’s arrival in Wilmington, along the Cape Fear River. On the night of October 19, 500 people converged near the Wilmington court house to hang an effigy of an “Honourable Gentleman” who had voiced support for the new tax. Protestors visited every house in Wilmington and gathered all of the town gentlemen. Once assembled, the crowd burned the effigy in a bonfire of tar barrels and gave toasts to “Liberty, Property, and no Stamp-Duty.”¹

Cowan was practiced in the unpredictability of trade, and these Stamp Act protests were one delay among many that the Duke of Athol had already experienced in its transatlantic journey. Owned by the merchant house of James Scrimgeour & Son in Borrowstounness, Scotland and freighted by Edinburgh merchants Alexander & Sons, the ship had originally sailed for Grenada—after considering a trip to Maryland and Virginia— with a cargo of herring, staves, and green linens. When no sugar was available by the time of her arrival, the Grenada agent for Alexander & Sons finally convinced then-captain William Dicks to sail instead for Carolina after supplying Dicks with a letter of indemnification “to remove your scruples” for the diversion.² Dicks died on the next passage, elevating mate John Cowan to ship master. Cowan would receive two additional guineas for a hat from Alexander & Sons, “providing he behaves properly, and gives the proper assistance to our people for procuring dispatch.”³ He had believed trade in Carolina would be quick after his arrival there. On October 19, 1765, mere hours before the first protests commenced, he wrote to Scrimgeour & Son that he was hopeful the vessel would depart for Scotland no later than the end of November.⁴

Growing popular unrest destroyed Cowan’s hope of a timely departure, and he took action to protect his interest against the certain disappointment of the merchants back in Scotland. On October 30, with the ship still waiting for a return cargo, Cowan took a legal protest against “all concerned” for the delays the ship had already suffered and for future delays Cowan expected from the Stamp Act.⁵ Protesters gathered again in Wilmington on October 31 and processed through the town with a coffin containing an effigy of Liberty. Accompanied by doleful town bell, the burial march eventually proclaimed that the effigy’s pulse still beat. They returned Liberty to the town center to sit aside a bonfire that burned through the evening. Shortly after the Stamp Act went into effect on November 1, hundreds surrounded the home of the region’s stamp collector and compelled his resignation. With no officer to accept the stamps when they arrived in North Carolina on November 28, the stamps remained aboard a British naval vessel in Brunswick.⁶

 

In mid-December, stamps remained unavailable as the Duke of Athol finally began loading a cargo of tar. When William Tryon, the newly installed North Carolina Governor, arrived in Wilmington on December 19 to publically announce his commission—a spectacle met by public protest—Cowan took the opportunity to join with other ship captains and petition Tryon for legal clearances. Tryon returned the petition and directed the captains to customs officials. Customs officers referred the captains back to the Governor. Both refused to grant clearances.⁷ Amid the standstill, Cowan remained in port with a full cargo of tar finally on board the Duke of Athol. Meanwhile the naval blockade in the Cape Fear River seized three arriving merchant ships for sailing with unstamped papers.

As customs officials dithered over the seized ships, Attorney General Robert Jones, Jr. released a statement that these vessels were liable to prosecution due to the “great neglect” of their captains.⁸ Jones outlined proper procedures for ship captains to follow to avoid forfeiture at trial, and Cowan immediately followed suit. On January 29, with a notary public and a witness, he proceeded to the Wilmington customs collector, offered the proper fees, demanded a clearance, but heard in reply that the collector could only provide him with common, unstamped papers.⁹ These efforts might protect Cowan’s ship from condemnation, but not from seizure, and trials would be carried out in faraway Halifax, Nova Scotia. “I am now lying here loaded this four weeks,” Cowan wrote to Scrimgeour on January 31, 1766, “but cannot get out for want of a proper clearance.”¹⁰

In February 1766, new armed protests broke out around the Cape Fear River over the seized ships, forcing troops at nearby Fort Johnston to spike their guns before they could be turned on naval vessels. A crowd of nearly 700 men, most of them armed, compelled all public officers, including the customs collector, to swear that they would not uphold the Stamp Act, and the river opened for trade without stamped paper.¹¹ On March 18, 1766, Parliament repealed the Stamp Act, and Cowan, who may have heard word that a bill to repeal had come before that body, departed Wilmington on March 31, 1766. On April 15, the Duke of Athol cleared Cape Fear for Scotland and arrived at Leith that summer.

Scottish Court of Session Papers at UVA Law

Contained within these legal documents from the highest level of Scottish courts are rich details about how people lived, traded, farmed, managed risk, and moved through the 18th- and 19th-century British Empire. Cowan’s story is one of many contained within the UVA Law Library’s Court of Session collection of printed case materials presented before the Court from 1759 to 1834. As a court of appeal and of first instance and the highest civil court in Scotland at the time, the Court of Session held jurisdiction over contract and commercial cases, matters of succession and land ownership, divorce proceedings, intellectual property and copyright disputes, and contested political elections. In addition to petitions and memorials, many of which include annotations, the collection includes color maps and copies of correspondence, wills, financial accounts, and census reports. The Court provided copies of these papers to all litigants and judges for each case, and it was common practice in this period for lawyers and judges to retain these papers for their personal library or legal practice. Session papers thus exist in various collections around the world, with complete copies at the Scottish National Archives and Signet Library. In 1767, James Boswell, renowned Scottish biographer and one-time lawyer before the Court aptly wrote that these case materials would provide researchers with “a treasure of law reasoning and a collection of extraordinary facts.”¹²

The rich historical and biographical information contained within these records is one of the main reasons the UVA Law Library began cataloging this 2,000-item collection in 2015. Scrimgeour case files, for example, include lengthy sections on legal reasoning and point to the legal texts on which parties framed their arguments (including Molloy, De jure maritimo et navali and Rhodes, Treatise of the Dominion of the Seas, both available at UVA Law Special Collections), but the depth of detail these documents provide on people, life, and law in the 18th- and 19th-century British Empire makes them promising new sources for multidisciplinary research. The Stamp Act delay is just one episode among many from the ship’s broader journey from Borrowstounness, Scotland, to Grenada, St. Christopher’s, North Carolina, and back to Leith that these documents illuminate. Early modern legal materials that originated as manuscripts, like these Session Papers, rarely exist in printed forms that can be so easily harvested for digital searching, visualization, and analysis. Further, approximately half of the documents in the UVA collection originated from cases not reported in contemporary printed digests.

In 2017, the UVA Law Library hopes to digitize this entire collection for free, open access on the web. For questions about this collection contact Special Collections at lawarchives@virginia.edu.

– Randi Flaherty, Post-Doctoral Fellow in Digital Humanities  

1. North Carolina Gazette, November 20, 1765, printed in William S. Powell, ed., The Correspondence of William Tryon and Other Selected Papers, Volume 1, 1758-1767 (Raleigh: North Carolina Department of Cultural Resources, Department of Archives and History, 1980), 162. ⤴

2. Alexander Lockhart, “Answers for James Scrimgeour and Son, merchants in Borrowstounness, to the Petition of Mess. William Alexander and Sons, merchants in Edinburgh,” April 24, 1769, Scottish Court of Session Papers, UVA Law Library [hereafter cited as SCOS], 9-10. ⤴

3. Last quote from Alexander & Sons to James Scrimgeour & Son, March 23, 1765, printed in Jo. Maclaurin, “Unto the Right Honourable, the Lords of Council and Session, the Petition of William Alexander and Sons Merchants in Edinburgh,” January 15, 1772, SCOS. ⤴

4. John Cowan to James Scrimgeour & Son, October 19, 1765, printed in “Proof in the Process, Mess. James Scrymgeour and Son, Merchants in Borrowstounness, Against Mess. William Alexander and Sons, Merchants in Edinburgh,” 1771, SCOS, 6-7. ⤴

5. Lockhart, “Answers,” 19-20. ⤴

6. Lindley Butler, North Carolina and the Coming of the Revolution, 1763-1776 (Raleigh: North Carolina Department of Cultural Resources, Department of Archives and History, 1976), 20. ⤴

7. Lockhart, “Answers,” 19-20. For Tryon’s arrival in Wilmington see accounts in Powell, Correspondence, 169-171, 218-219. ⤴

8. Robert Jones to William Dry, February 3, 1766, printed in Lockhart, “Answers,” 20-21. ⤴

9. Lockhart, “Answers,” 21. ⤴

10. Printed in “Proof,” 7. ⤴

11. William Tryon to Henry Seymour Conway, February 25, 1766, printed in Powell, Correspondence of William Tryon, 254-259. ⤴

12. Quoted in W.H. Bond and Daniel Whitten, “Boswell’s Court of Session Papers: A Preliminary Checklist,” in W.H. Bond, ed, Eighteenth-Century Studies in Honor of Donald F. Hyde (New York: The Grollier Club, 1970), 232. ⤴