Chapter XX: Part 20

[Footnote 90: An error of the quartermaster's in copying.
There is no Cape Roman on the north coast of Cuba. The
captain had no doubt written Cayo Romano. Cayo Romano is a
small island, one of the "Jardines del Rey" that fringe the
north coast of eastern Cuba, bordering on the Old Bahama
Channel.]

[Footnote 91: Shroud.]

We have Sent You the Sloop, Commanded by John Webb, Loaded
with Sundry Goods that has Rec'd some damage, which must
desire You to Unload directly and take Care to Gett them
dryed. there is also a Negro Boy that is Sickly, a Negro Man
said to be taken off of Barmudas by the privateer as he was
a fishing, and a Mollatto belonging to Some of the Subjects
or Vassalls of the King of Spain, all which We Recomend to
Your Care that they may not Elope. the Number of Spanish
prisoners taken on board is 48, out of which is Eleven of
the blood of Negroes, The Capt. Included, for which we dont
doubt having his Majestys bounty mony, which is L5 Ster. per
head. We also desire that the Vessell may not be Condemned
till Our Arrivall but only Unloaded and a Just Acct. taken
of what on board. As to the Brigantine, the Capt. of her,
whom we put in again out of Civility, has Used Us in a Very
Rascally manner, for he Run away with the Vessell from Us in
the Night and no doubt with a design to Cheat Us of Our
Salvage, which is the one half of Brig and Cargo, the Enemy
having had possession of her 22 days. As she is a Vessell of
Value, hope You'l do Your Endeavours to Recover Our Just
dues and Apply to the Owners who are, as we are Credibly
Informed, Messrs. Lee and Tyler of Boston, both Under the
State of Conviction Since the Gospell of Whitefield and
Tennant [h]as been propagated in New England,[92] So that we
are in hopes they will Readily Give a Just Acct. of her
Cargo and her true Value and Render to Caesar the things
that are Caesars, which is the Moral preachd by Whitefield.

[Footnote 92: An allusion to the "Great Awakening", and to
the revivalist preaching of George Whitefield in Boston in
the autumn of 1740 and of Gilbert Tennent in the ensuing
winter. Tyler at any rate (John Tyler of Boxford and Boston)
seems certainly to have been affected by the "New Light"
movement, for in 1745 the Second Church in Boxford suspended
him, among others, for "receiving into their houses
Itinerant Preachers and holding meetings in opposition to
the repeated entreaties of their Brethren". _The Tyler
Genealogy_, I. 43.]

As this will Require a Law Suit I hope You'l Gett the best
Advice You possibly Can and Gett her Seized if att Boston or
Else Where and Gett her Condemned. She was designed to be
Consign'd to You and the Master Sent on board to take
possession and Gett things in Order to Sail, whilest we were
Getting Letters wrote and bills of Lading with a hand to Go
with him, but he Gave Us the Slip. So Relying on Your Care
we don't doubt but you'll Recover her and add her to the
privateer prize. The Brig'ne was Called the _Sarah_,
Commanded by Thos. Smith, had on board 11 hhds. of Rum, 23
hhds. of Sugar and 12 bags of Cotton. she was Well fitted
with 4 Swivells, one Gun and other Stores, a New pink
Stern[93] Vessell. One of Our hands he Carryed with Us[94]
whose Name is Jerem'h Harman, who no doubt will Acquaint You
of the whole Affair. We hope you'l Shew no favour to the
Capt. for his ill Usage and Gett a Just Acct. of his
Venture, which one half is our due. This Affair is
Recomended to You by all the Company and hope that you'll
Serve to the Utmost of Your powers, not doubting in the
least of Your Justice and Equity.

[Footnote 93: Sharp-sterned.]

[Footnote 94: Error for, with him.]

Inclosed You'l Receive Capt. Frankland['s] 2 Bill of Exchg.
on his Brother for L540, also a List of what Vessells taken
by Fransoiso Loranzo Since he first went out on his Cruize,
which You may Use att pleasure Either to publish or
Conceal. We are still Cruizing on the No. side of Cuba and
are in hopes of Getting something worth while in a Short
time. all in Good health. So having no more to add but My
Kind Remembrance to all friends, I Remain

S'r, Y'rs, BN.

_Munday 5th._ Fine moderate Weather. the Comp'y Gave the Capt. a Night Gown, a Spencer Wigg[95] and 4 pair of thread Stock'gs, to the Lieut. a pr. of Buck skin Breeches, the Doctor bot. a Suit of broad Cloth which Cost him 28 ps. of 8/8 which is Carried to his Acct. in the Sloops Leidgers. Six men that had been prisoners Signed Our Articles, Viz. Patterson taken out of the Sloop, and John Greenshaw, Thos. Sinclair, Lawrence Willson, James Hadle, Jno. Bruman, prisoners on board the Ship. the whole Vandue this day amounted to 9 ps. 8/8 4 R.

[Footnote 95: A variety of periwig named after Charles Spencer, better known as the second earl of Sunderland. A night-gown in 1741 was a dressing-gown.]

Expended this month: 7 bb. beef, 3 bbs. of pork, 6 bbs. flour, 2 tierces of bread.

_146. Account of the Crew with the Owners. October 30, 1741._[1]

[Footnote 1: Massachusetts Historical Society. It is hard to interpret this account. It will be seen that L1776 16s. 9d. New England currency is reckoned as equal to 1972-1/8 pieces of eight or Mexican dollars. That would be reckoning 18s. of New England paper money to the dollar, or about 20s. 6d. to the ounce of silver. But in 1741 the rate of depreciation was certainly much higher. In January of that year Governor Ward of Rhode Island reports to the Board of Trade, "that for these six years last past, bills have continued to be equal to silver at twenty-seven shillings per ounce". _Col. Recs. R.I._, V. 13. And the Massachusetts rate was twenty-nine or more.]

Comp'y of the Sloop _Revenge_ their Acct. Curt. with the Owners.

Dr. New Eng'd Cur'y Ps. 8/8. R.

To the first Out sett for provisions
etc. bot. att Rhode
Island and New York, being L1698. 6.3 1886.4

To Rum and Sugr. bot. att
provid'ce. 39.12. 44.

To cash paid Mr. Stowe per
B.N. 19.11.6 20.1

To do. for prison fees for a Negro
and Mollo. Slaves. 4.19. 5.4

To John Wright for frock and trowsers. 1. 7. 1.4

To Cash paid for Storedge of the provisions. 7. 4. 8.

To a bb. of Pork. 5.17. 6.4
-------------------------
L1776.16.9 Ps. 8/ 1972.1

Cr.

By Cash Recd of Mr. Moon L137. 5. 152.

By a bill of Exchg. of Capt.
Frankland 540. 600.

By ditto pd. per the Compy. Qr.
Mr. 3 mens Share who were
discharged 8. 2. 9.

By a bb. of tarr 2.14. 3.

By Cash for three mens share of
the provs. Expended 16. 4.9 18.

By Cash Recd of Mr. Stone for
part of a Negro Sold to him 21.12. 24.

By Cash Shipt per Capt. Pittman,
Vizt.
Gold--54-3/4 Moidrs.[2] at 7-1/2
Ps. 8/ 368.17.9 409.7
38 pistoles 153.18. 171.
2-1/2 Johannes 45. 50.
In Silver L3. 5. Ster.
Advce. 13.[3] 16. 5 NECy 16. 5 18.1
139 mild[4] ps. of 8/8 166.16. 139.
------------------------
1476.14.6 1594.

By ball'ce due per Acct. by the
Comp'y 300. 2.3 378.1
-------------------------
L1776.16.9 1972.1
-------------------------

Errors Excepted October the 30th, 1741 Per P. Vezian Capt. Qr. Mr.

133 Mild ps. 8/8
5 Piller ps. 8/8[5]
1 french Crown[6]
L3. 4s. 0d. English Mony.

Sent by Robert Griffin to New York

133 Mild ps. of Eight L53. 4.0
54 Moydores in Gold at 44s.[7] 118.16.0
---------
New York Mony L172. 0.0

[Footnote 2: The moidore and the johannes were Portuguese coins, the pistole Spanish. The moidore was worth six pieces of eight, the pistole four, the johannes eight. Here they are reckoned at 7-1/2, 4-1/2, and 20, respectively; but perhaps the last were "double joes".]

[Footnote 3: "Advance 13", _i.e._, add four times the amount (or multiply by five) to bring the sum from sterling to New England currency, at the rate here assumed; L3. 5s. sterling was really worth only about 15 pieces of eight.]

[Footnote 4: Milled.]

[Footnote 5: Spanish dollars on which appeared pillars symbolizing the Pillars of Hercules.]

[Footnote 6: An ecu of six livres, = $1.08.]

[Footnote 7: The moidore is here reckoned at 44s. New York money; it is reckoned above at 135s. New England money.]

_147. Petition and Complaint of John Freebody. November 5, 1741._[1]

[Footnote 1: Records of the Admiralty Court held in Boston, "vol. V.", kept in the Suffolk County Court-house. These supplement effectively the papers given to the Massachusetts Historical Society by Professor Norton.]

At a Court of Admiralty holden at Boston before the Hono'ble Robert Auchmuty, Esq'r., Judge of said Court, December the Seventh, Anno. Dom. 1741.

Province of the } To the Hono'ble Robert Auchmuty, Massachusetts Bay SS. } Esqr., Judge of Vice } Admiralty in Boston.

The Petition and Complaint of John Freebody of Newport, Merchant, in behalf of himself and Benjamin Norton, Owners of a Privateer Sloop Called the _Revenge_, and as Agent for and in behalf of the Officers and Mariners Belonging to sd Sloop, Humbly Sheweth to your Honour that the Said Vessell, Under the Command of said Benjamin Norton, Manned With Sixty Men, Officers and Marriners, Sailed Out on a Cruize from Newport in Rhode Island Against the Spaniards in June last, and in the Latitude of Thirty Degrees North, About Twenty Leagues from the Havannah, near the Island of Cuba, they met with a Spanish Privateer of Six Carriage Guns and ten Swivel Guns, with men Answerable, On or about the 26th day of September last, which Privateer had About Fourteen days before that taken a Briganteen called the _Sarah_, with her Cargo, Consisting of Ten Hogsheads of Barbadoes Rum, Sixteen Hogsheads of Brown Sugar, Sundry Bales of Cotten, Being in all about One Ton and a half, together with Ten Barrells of Sugar and About Twenty barrells of Limes, Altogether of the Value of Five thousand Pounds in Publick Bills of Credit Usually Current here, which Vessell was Owned by John Tyler and Thomas Lee, Subjects of the Crown of Great Britain and now Resident in this Place, as was also part of the said Cargo as Enumerated, the Rest belonging to Other Subjects Liveing also at Boston but Unknown to the Complainant, and the said Sloop _Revenge_ Engaged and took the said Spanish Privateer and at the Same time Retook the said Briganteen And Cargo and Redeemed the master, whose name is Thomas Smith, and his Hands, from the Power of the Spaniards, and for that the said Briganteen And Cargo had been at Such time a fortnight in the hands of the Spaniards as their Prize, the said Benjamin Norton put one of his hands aboard and Order'd the said Vessell to proceed directly to Newport To be Restored to the Owners upon paying as Salvage One Moiety of said Briganteen and her Cargo, pursuant to an Act of Parliament Made and Passed in the 13th year of the Reign of his Present Majesty King George the Second Entituled an Act for the more Effectual Secureing and Encourageing the Trade of His Majesties ---- British Subjects to America and for the Encouragement of Seamen to Enter into his Majesties Service,[2] Whereby Amongst Other things It is Provided and Enacted to the following purpose and Effect, vizt. that the Vessells and Goods of British Subjects Surprized and Retaken from the Enemy, if by a Private man of War Commissioned properly thereto, In Case the Vessell and Cargo had been Above Ninety Six hours in the Possession of the Enemy that took the same, then to be Adjudged To be Restored to the Owners, they paying for and in Lieu of Salvage One full Moiety or half part of said Vessell and Goods so taken And Restored, without any deduction Whatsoever, as in and by the said Act, Reference thereto being had, more fully may Appear. Now So it is that notwithstanding said Briganteen and Cargo had been taken as A Prize by said Spanish Privateer and in their possession as such For twelve or Fourteen days before she was Retaken by the said Benjamin Norton, who was properly Commissioned thereto in said Sloop _Revenge_, yet the said Thomas Smith, to Defeat the said Act And deprive the said Compl't[3] together with said Norton and Crew of their Right and due as Abovesaid, Contrary to the mind of One Jeremiah Harman who was on purpose left in said Briganteen to Proceed therein and Assert their Right that Surprized and Retook her, Yet the said Thomas instead of Proceeding to Newport as intended Came in said Vessell and with the Aforesaid Cargo to this Port of Boston, Where they Arrived in Safety in said Briganteen and with the Aforesaid Cargo on or about the 23d day of October 1741, and haveing turned the Said Jeremiah on shore have Unladed and Delivered the said Briganteen Of her Cargo and Effects and is now Preparing to send with the Owners Consent Or go with the said Briganteen on a New Voyage Directly, without haveing Obtained Any Decree of this Court as the Act directs or made Application therefore, nor will the said Master Thomas Smith and Owners, tho' requested, pay and give the said Moiety of the Vessell and Cargo so Retaken or any part thereof to the Complainant For the Uses and purposes abovesaid. Wherefore this being of a Maratime nature and regarding a Vessell and Cargo retaken on the High Seas, Expressly falls within the Jurisdiction of this Hono'ble Court. It's therefore pray'd your honour will cause the said Vessell and Cargo so Retaken to be Seized and Kept in the hands of the Marshall till a final Decree may be made on the premises Pursuant to Said Act, and that the said Thomas Smith, John Tyler and Thomas Lee may be Summoned in Case they or any of them see fit to Appear and Answer this Complaint, and that the Complainant may Obtain for the Uses and Purposes aforesaid your Honours Decree for One Full Moiety or half part of said Brigantine and her Cargo or be Otherwise Relieved in the Premises, as your Hon'r shall Judge meet. And as In duty Bound the Complainant shall always--

[Footnote 2: 13 Geo. II. ch. 4.]

[Footnote 3: Complainant.]

JOHN FREEBODY for himself and Benja. Norton, Owners, and as Agent for and in behalf of said master, Officers and Seamen belonging to the Sloop _Revenge_.

1741 Nov'r 5th filed and Allow'd and Ordered that the Vessell and Cargo be Arrested and Kept in the Marshalls Custody untill Security be given to Abide the Event of the Case, and that the Aforesd Owners and Master Be Cited to Answer this Libel on Monday next at three aClock p.m.

ROB'T AUCHMUTY, Judge Ad'y.

_148. Deposition of Jeremiah Harriman. November 25, 1741._[1]

[Footnote 1: Records of the Admiralty Court, Boston, "vol. V."]

Jeremiah Hariman of Lawfull Age Testifyeth and saith that on or about the latter end of June or the beginning of July last he sailed from New York In a Privateer Sloop Called _The Revenge_ Commanded by Capt. Norton on a Cruize Against the Spaniards and in the month of Sept'r last in the Old Streights of Bahama[2] they saw a Sloop laying too with a Jib Sheet to Windward And the Goose wing[3] of her mainsail hauled up and her foresail hauled down, Upon which We gave her Chase and upon Comeing within Gun shot of us she Hoisted a Spanish Flagg upon her Topmast head and fired a shot which went thr'o the Rigging, upon which we stood After her and upon Comeing within Muskett shot of said sloop she fired at us again, upon which we hoisted An English Pendant Upon the Topmast head and then we Engaged her, And in about two hours and half we took her and found a Spanish Commission On board her and then we took Out of the Spanish Privateer about fourteen Spaniards and put them on board Our Sloop and put some of Our men aboard The Spanish Sloop and then both Sloops gave Chase to the Brigantine and In about three or four hours Our sloop came up with the Briganteen and fired One or two Guns, upon which she brought too and struck and then we took possession Of her, at which time this Depon't was Credibly Informed as well by Capt. Smith as his men and all Concern'd that she had been taken as a Prize by The Spaniards and Kept in their Custody Eleven days before she was Retaken By them, Whereupon the Quarter master and One hand more went on board the Said Briganteen to take possession of her as a Retaken Vessell. Capt. Norton Then Ordered Capt. Smith on board his Own Brig't with his Company, and This Depon't was also Ordered by the Quarter master and Company of the _Revenge_ Sloop to go on board said Briganteen to Secure and look after their Interest, With Orders to keep them Company Untill some farther Disposition shou'd be Made, which was Intended to be done the next day, but so it happened by Some Misadventure or Contrivance to this Depon't unknown they never Coul'd come up with the Sloops again (th'o they had Severall times sight of Them), Whereupon the said Smith and Company Alledging they shou'd be short Of Provisions Steer'd their Course towards Rhoad Island and in About Eight days After, in the Gulph of Florida,[4] we Came up with a large Merchant man as deep Laden as she Cou'd well Swim, she Standing in For the Westward and we being very near the florida shore Cou'd not Weather her and when she came up with us she fired a shot Over us, Upon which we brought too and then Ordered us to Come on board them In Our boat, but upon our telling them we had no boat they sent their Boat on board us with their Pilot and Severall Others, who staid on board That night and the next day. about the midle of the Afternoon they Left us After haveing plundered the Brig't of One barrell of Sugar, three Small Sails, a Sheet and Small Anchor, the sheet Cable[5] and Sundry Small Stores of little or no Value. Whereupon Capt. Smith took upon him to Order The Brigantine to Boston, Capt. Smith at the same time telling this Depon't He shou'd have mates Wages, And upon their passage Comeing near Block Island, Capt. Smith refus'd to go into Rhoad Island th'o Requested by the Depon't And Afterwards they put into Martha's Vineyard, where Capt. Smith Sold Rum and Other things to Cloath his people and then made his best Way for Boston where they arrived on or about the 23d of October last When they discharged this Depon't as soon as they well Cou'd and gave him Some money and told him to Go about his business.

JEREMIAH HARIMAN.

[Footnote 2: Commonly called the Old Bahama Channel, lying between the Jardines del Rey, or north coast of Camaguey province, Cuba, and the Great Bahama Bank.]

[Footnote 3: Lower corner.]

[Footnote 4: The part of the Atlantic Ocean east of northern Florida.]

[Footnote 5: The cable used with the sheet-anchor.]

1741 Nov'r 25 Jeremiah Hariman Appearing in the Registers Office made Oath to the Truth of the Aforegoing Deposition Before Me

ROB'T AUCHMUTY Judge Ad'y.

_149. Deposition of Thomas Smith. November 30, 1741._[1]

[Footnote 1: Records of the Admiralty Court held in Boston, "vol. V."]

The Deposition of Thomas Smith of Boston Mariner, Master of the Briganteen _Sarah_ as follows vizt. That on the 17th day of Septem'r last he being Master of said Brigantine in her Passage from Barbadoes, in the Lat. of 28 Degrees and 38 min's North and the Long. of Bermuda, said Briganteen Was Surprized and taken together with her Cargo Consisting of Rum, Sugar, Cotton and money to the Value of About Eighty Six Pounds Sterling by divers Subjects of the King of Spain in a Privateer Sloop mounted with Sixteen Guns Commanded by One Capt. Ponch[2] manned with upwards of Forty men, who took Out of the said Briganteen all the Aforesaid Money and Continued all the Rest Of the Cargo on Board of her, and the said Spanish Privateer Ordered the Depon't And four of his men on board the said Sloop and put some of their men on board The said Briganteen and turned her Long boat adrift and the said Sloop and Briganteen were Ordered to Keep Company with One Another and Steer for the Havannah and the Spaniards plundered said Briganteen both of Rum and Sugar And on the 26th of said Septem'r, said Briganteen being in the Old Streights of Bahama, Capt. Benjamin Norton in a Privateer Sloop from Rhoad Island Came up with the Aforesaid Spanish Privateer and the Depo'ts Briganteen, Took the Privateer and Retook the Brig't and Cargo and the said Norton took All the Spaniards out of said Sloop and Brig't and put them on board his Own Sloop and the Depon't Saith that Capt. Norton's Quarter master took out of his Brig't Some Cloaths, a Rug and Blankett, which was upon freight, Contrary to this Depo'ts Request, who told him said things were upon freight, and said Quarter Master also took from this Depon't forty pieces of Eight. Capt. Norton then Ordered this Depon't on board his Own Brig't with his own men and ordered the Depo't to keep him Company and Proceed to Rhoad Island. at The same time One Jeremiah Hariman, one of Capt. Norton's men, came on board The said Briganteen, but the wind being fresh and a very strong Current Setting Capt. Norton Outsailed the Brig't, who fell to Leward on the Bahama Banks[3] In About five fathom water and lost Sight of Capt. Norton for twentyfour Hours and then Stood for the Gulph,[4] designing for Rhoad Island, but in their Passage thither on the fourth day of October at Ten a Clock in the morning, being in the Lat. of 27 Deg's and 6 min's, the Depon't met with a Spanish Merch't Ship mounted with about Six Guns and Navigated with About Twenty five Men in the Gulph, Commanded by one Barnard Espinosa who was also Owner of said Ship, who came from the Havannah and was bound for the Canaries, Who took and made Prize of this Depon'ts Vessell and Cargo, put this Depon't and His men on board the said Spanish Ship and put his Own men on board the Briganteen to plunder her, and the said Ships Crew took Away the said Briganteens Jib, forestaysail, Sheet Cable and Anchor, five Great Guns, four small Arms, Maintopstaysail, Runners and [_illegible_] Stream Anchor,[5] two crows and all the Iron they could remove, and also some Sugar, Rum, Cotton, Wool, two coils of Rigging, and Sundry Stores Particularly mentioned in a Schedule, Lodged in Court, and also took of the said Briganteens Cargo five packets of Cotton, two hogsheads and half of Rum, One hogshead and four barrells of Sugar and Seven hundred weight of Loaf Sugar, and also Carried with Him in said Ship the mate, one hand and a Boy belonging to said Brig'n, In Order to Carry them into the Territories of the King of Spain to Shew That the Vessell and Cargo so Plundered belonged to British Subjects, and On the 5th of said October the said Espinosa gave this Depon't his said Briganteen at the Request of a Spanish Priest he had on board (he Haveing at first determined to set her on fire) as also the Remains of her Cargo, vizt. five hogsheads and half of Rum, four hogsheads and Eight Teirces of Sugar, belonging to the Owners of said Briganteen, which he has Since delivered to them, and nine hogsheads of Sugar, five Packets of Cotton and a Teirce of Rum which were Laden Upon freight, which he has since delivered to the Respective Owners, vizt. the nine hogsheads of Sugar to Wentworth and Monk, the five Packets of Cotton to Mr. John Woodhouse, and the Teirce of Rum to Capt. Foresyth, who paid him Freight for the same.

THOS. SMITH.

[Footnote 2: See doc. no. 145, note 83.]

[Footnote 3: The Great Bahama Bank lies southwest of the chief islands, toward Cuba. The vessels were proceeding northwestward toward the Florida Channel.]

[Footnote 4: Of Florida.]

[Footnote 5: A runner was a rope rove through a block. A stream anchor was an anchor of middle size, between a bower and a kedge.]

and this Depon't further adds that when he met With the said Spanish Ship he Ordered the aforesaid Jeremiah Hariman to Fire a Gun, he haveing a Hot Poker in his hand, who Refus'd to do it But Instead of that he let go the Main Halliards and lowered the Mainsail, And After the said Briganteen was taken by the Spanish Ship the said Harriman desired to enter on board said Ship, Giveing for reason that he Was a Roman and had a wife at St. Augustine,[6] and this Depon't also heard The Pilot of the Spanish Ship ask the Captain whether he would receive the said Jeremiah Hariman as a hand on board his ship but the Capt. Told said Pilot that he would not take him. this Depon't further declares that he for Severall years has Understood the Spanish language and that the hands on board the Spanish Ship were all of them Spaniards except the Pilot, who was an Englishman, and the Captain of her Showed this Depon't a Paper which he Called a Letter of Marque and this Depon't believes The same really was so.

THO. SMITH.

[Footnote 6: It is to be hoped that Captain Smith is misrepresenting Harriman, for Jeremiah Harriman was married to Mary Johnson in Trinity Church, Boston, on Apr. 29, 1744, the intention of marriage having been filed on Aug. 15, 1743. Boston Record Commissioners, _Reports_, XXVIII. 275, 342.]

1741 Nov'r 30th Thomas Smith made Oath to the truth of the Aforegoing in Open Court.

Att'r JOHN PAYNE, D.Reg'r.

_150. Decree of Vice-Admiralty Judge. December 7, 1741._[1]

[Footnote 1: Records of the Admiralty Court, Boston, "vol. V."]

The Case was then fully debated by the Advocates[2] on both sides and on the Seventh of Decemb'r Aforesaid his Honour the Judge gave the following Decree, vizt.

[Footnote 2: In English admiralty courts the two classes of lawyers--roughly, those who appeared in court and those who prepared the papers--were called advocates and proctors, corresponding to barristers and attorneys in the common-law courts.]

This Case on the Evidence Appears to me shortly to stand thus: On the 17th day of Sept'r last the Briganteen _Sarah_ in her Passage from Barbadoes to Boston was taken by a Spanish Privateer. on the 26th of said Month Capt. Norton in an English Privateer took the Spaniard and his said Prize, puts one of his hands on board of the Briganteen and Continues Mr. Smith the Master and his Crew belonging to her on board, Ordering him to keep him Company and Proceed to Rhoad Island, but the Briganteen Not being Able to keep up with the English Privateer lost sight of her, And in her Passage for Rhoad Island on the 4th of October was again taken By a Spanish ship, who plundered her the second time and Carrying with them the Mate, One hand and a Boy, on the 5th of October Aforesaid was prevail'd upon to Give the Briganteen with the Remains of her Cargo, etc. to the said Smith the Master, who brought her to Boston, and now the Owners of the English Privateer and Capt. Norton and his Crew demand one half for Salvage according to the Stat. In that Case (as they say) provided, and if they are Entitled to the Same is the Sole Question. In determining of which I shall Premise

1st. Its a Rule in Law that the Right of Changeing Property by force of Arms is so Odious that in the takeing of Goods if by any Possibility The Right Owner may have Restitution the same shall be done, and th'o a Larger time than twenty four hours happen between the Capture And Recapture, and so may pernoctare[3] with the Captor yet Restitution may be made.

[Footnote 3: Continue through the night.]

2 ly. The Sense and Understanding the Law hath of Privateers, vizt. That they Are such as receive no pay but go to war at their Own charge, and Instead of pay leave is granted to Keep what they can take from the Enemy, and alth'o such License is Granted yet may they not of their Own heads Convert to their Private use Prizes before the same have Been Adjudged by Law Lawfull to the Captors.

3 ly. There are Two Adjudged Cases that may Contribute to the Clearing up this Point. The First is in the War between England and Holland.[4] a Dutch man of war takes an English Merchant man and Afterwards an English man of war Meets the Dutchman of war and his Prize and in Aperto Prelio[5] regains the Prize. there Restitution is made, the Owners paying Salvage, _for had it been a Lawfull Prize to the Recaptor the Admiral wou'd have had a Tenth_. The Second is where a Ship Chartered in his Voyage happens to be taken By An Enemy, and Afterwards in Battle is Retaken by Another ship in Amity, And Restitution is made and she proceeds on her Voyage. the Contract is not Determined. th'o the taken[6] by the Enemy divested the Property out of the Owners, Yet by the Law of War the Possession was defeazable, and being Recovered by battle Afterwards, the Owners became Reinvested, so the Contract by [fiction] of Law became as if she never had been taken and so the Entire freight Became due.

[Footnote 4: It is difficult to identify these cases, for volumes of reports of admiralty decisions were not published until the beginning of Christopher Robinson's _Reports_ in 1798, and not many earlier decisions have since been reported; but the first of the cases here referred to may be one of the two, those of the _Laurel Tree_ and the _Palm Tree_, on which Sir Leoline Jenkins rendered, in 1672, opinions which are printed in Wynne's _Life of Sir Leoline Jenkins_, II. 770.]

[Footnote 5: Open battle.]

[Footnote 6: Taking.]

Lastly, I Observe the Words of the Stat. in the Case of Recaption[7] Agree with the Words of the Law in the Cases put, for the words In the Act are _shall be adjudged to be Restored to Such former Owner, etc. Paying in Lieu of Salvage, etc._

[Footnote 7: 13 Geo. II. ch. 4, sect. 18.]

These things thus Premised I Come to the Consideration of the Point before me, and am of Opinion the Prepon'ts are Not Entituled to Any Salvage, for that the Owners were never Absolutely Divested of their Property, as may fairly be Collected from what has been Before mentioned. Its true the Prepon'ts had a Right or Claim to Salvage On the Recaption, but before that right Cou'd be Adjudged lawfull to the Recaptors the Briganteen was again taken by a Spaniard, which puts an Entire End to Salvage for a former Recaption, because Retakeing and Restitution begets Salvage but the Prepon'ts Retakeing is lost by the Enemies Again takeing the Brig't, and in Fact its the Enemy that made the Restitution. Therefore I decree the said Libel to stand dismist, but inasmuch as the Prepon'ts have been in Part Instrumental towards the Preservation of the said Briganteen and th'o not Strictly Speaking by Law Entituled to Salvage and the Case being New, I decree the Def'ts to pay all the Costs.[8]

ROB'T AUCHMUTY, Judge Ad'y.
7 Decem'r 1741.

[Footnote 8: From this decree of Judge Auchmuty the owners of the _Revenge_ appealed (see docs. no. 151-158), but in vain. Opinions might well differ, as did those of the civilians consulted in London, doc. no. 153. High authorities declared that when a prize had been taken into firm and secure possession, the title of the original proprietor was completely extinguished, and was not revived by a recapture (The _Ceylon_, 1 Dodson 105). But as to English practice, the civilians of Doctors' Commons certified in 1678 that the custom of the High Court of Admiralty was to restore the recaptured vessel to the first proprietor, with salvage of one-eighth to the recaptors (Marsden, _Law and Custom of the Sea_, II. 102, _cf._ also 168, 193), and the statute 13 Geo. II. ch. 4, sect. 18, so provides, with enlargement of salvage when the enemy's possession had lasted longer; see doc. no. 145, note 61. But this present case was, or purported to be, a case of a _second_ recapture. A note in 4 Chr. Robinson 217 shows three cases in 1778, 1780, and 1781, of British prizes recaptured by the French, then captured again by the British; in one case the House of Lords awarded the vessel to the first captor, in the other two to the last. Justice Story, in one of his notes in 2 Wheaton, app., p. 46, says, "Where a hostile ship [_e.g._, Smith's brigantine when first encountered by Norton, in Spanish hands] is captured, and afterward is recaptured by the enemy, and is again recaptured from the enemy, the original captors [_e.g._, Norton] are not entitled to restitution on paying salvage, but the last captors [_e.g._, Smith] are entitled to all the rights of prize, for, by the first recapture, the whole right of the original captors is devested"; and he refers to the _Astrea_ (1 Wheaton 125), where Marshall in 1816 so decided, with as much emphasis as Sir Leoline Jenkins laid on an opposite doctrine in 1672. In 1741 doctrine was in transition from the earlier to the later view.]

_151. Appeal in Prize Case. December 8, 1741._[1]

[Footnote 1: Records of the Admiralty Court, Boston, "vol. V". From 1628 to 1708 appeals in prize cases from the sentences of vice-admiralty courts in the colonies had been heard in England by the High Court of Admiralty; since that date, they had, in accordance with 6 Anne ch. 37, sect. 8, been addressed to a body of persons specially commissioned for the purpose, called the Lords Commissioners of Appeal in Prize Causes. See the memorandum of Strahan and Strange (1735) in F.T. Pratt, _Law of Contraband of War_, p. 295. A commission (1728) for the trial of such appeals is printed in Marsden, _Law and Custom of the Sea_, II. 267-270.]

1741, Decem'r the 8. John Overing, Esq'r,[2] Advocate for the Propon'ts, Appeared In Open Court and Demanded an Appeal from the aforegoing Decree, Which the Judge Allow'd of Upon Securitys being given as the Act requires.

Att'r JOHN PAYNE, D.Reg'r.

[Footnote 2: Attorney-general of the province of Massachusetts Bay 1722-1723, 1729-1749.]

_152. Bond for Appeal in Prize Case. December 19, 1741._[1]

[Footnote 1: _Ibid._ The law required the appellant to give bond to prosecute. A similar bond (Rhode Island, 1756) is printed in Professor Hazeltine's monograph on "Appeals from Colonial Courts", in _Annual Report_ of the American Historical Association for 1894, pp. 344-345.]

On the nineteenth day of Decem'r Anno Dom 1741 Personally Appeared at Boston in New England John Overing, Esqr., and John Homans, Merchant, both of Boston Aforesaid, who Submitting themselves to the Jurisdiction of the High Court of Admiralty of England Obliged themselves, their Heirs, Executors and Admin's to Thomas Lee, Merch't, and John Tyler, Brazier, both of Boston Aforesaid, Owners of the Brig't _Sarah_, Thos. Smith Mas'r, In the Sum of Three hundred Pounds of Lawfull money of Great Brittain To This Effect, That is to say, Whereas John Freebody of Newport in the Colony of Rhoad Island, Merchant, Exhibited a Libel in the Court of Vice Admiralty for the Province of the Massachusetts Bay in behalf of Himself and Benja. Norton, Owners of a Privateer Sloop called the _Revenge_, And as Agent for and in behalf of the Officers and Mariners of said Sloop, Against the Aforesaid Brig't _Sarah_ for Salvage, etc. as per Libel on file More fully sets forth, And whereas by decree of said Court of Vice Admiralty Dated the Seventh day of Decem'r instant the said Libel was dismist, And the said Freebody haveing Appealed from said decree or Sentence to the Commissioners Appointed or to be Appointed Under the Great Seal Of Great Brittain for Receiveing, hearing and determining Appeals In causes of Prizes, now in Case the said John Freebody shall not Prosecute the said Appeal to Effect within twelve months from the Date hereof or in Case the Aforesaid decree Shall not be Revers'd By the said Commissioners, then they do both hereby Severally Consent That Execution shall Issue forth Against them, their Heirs, Executors, Admin'rs, Goods and Chattels, wheresoever the same shall be found, to the Value of the said Sum of Three hundred Pounds before mentioned, or Treble such Costs as shall be Taxed in the said Court of Vice Admiralty, But in Case the said decree be Reversed by the said Commissioners Then this Bail shall be Void and of none Effect, and in Testimony of The Truth thereof they have hereunto Subscribed their names.

Att'r JOHN PAYNE, D. Reg'r. J. OVERING.
JNO. HOMANS.

Exam'd per JOHN PAYNE, D. Reg'r.

_153. Case (Freebody c. Sarah) and Opinions of Civilians. May 17, July 10, 1742._[1]

[Footnote 1: Massachusetts Historical Society.]

CASE.

The English Brigantine called the _Sarah_, Thomas Smith Master, together with her Cargo, consisting of Rum, Sugar, Cotton and money on Board, was in her Passage from Barbadoes taken and Seized by a Spanish Privateer mounted with Sixteen Guns and Manned with upwards of Forty Men, who took out of the said Brigantine all the Money, but Continued all the rest of her Cargo on board of her, and the Spanish Privateer ordered and Caused the Master and Four of the Brigantine's Men to be put on Board the Privateer and put some of the Privateers Men on Board the Brgt. and turned her Long Boat adrift and the Brigantine was Ordered to keep Company with the Privateer and Steer for the Havannah. About Twenty Leagues from the Havannah, near the Island of Cuba, an English Privateer Sloop called the _Revenge_ (Benjamin Norton Commr.) came up with the said Spanish Privateer in Company with the said Brigantine, Engaged and took the Said Spanish Privateer and at the same time retook the said English Brigantine and Cargo on board, and Capt. Norton then took all the Spaniards out of the said Spanish privatr. and English Brigantine and put them on board his own Privateer, and Ordered Thomas Smith, the Master, and Crew of the said English Brigantine from on Board the Spanish Privateer to be put on Board the said Brigantine, and at the same time put on Board her Jeremiah Harimen, One of his own Privateer's Crew, to keep Possession of her until Salvage Shd. be paid for the Recapture, at the same time with Orders to keep the Privateer Company and proceed to Rhode Island.

Soon after, either by the Contrivance of Thos. Smith, the Master of the Brigantine, or by the Wind blowing fresh, the Brigantine was Seperated or lost Sight of the Privateer.

The Brigantine met with a Spanish Ship Mounted with six Guns and Navigated with about 25 Men, who boarded the Brigantine and Plundred her and took out of her part of her Rigging, Sails, Cables and Anchors, and part of her Lading, and the next day they quitted her, but first took out of her the Mate, One hand and a Boy, and put them on Board their Spanish Merchant Ship and carried them away.

Capt. Smith afterwards proceeded with the said Brigantine and in her Passage coming near Block Island was desired by Jeremiah Harimen (who was put on board to keep Possession of her as a fore said) to go into Rhode Island but refused the same and proceeded to Boston, where upon her arrival the said Jeremiah Harimen was put out of possession of her, and Thos. Smith, the Master, Caused her Cargo to be unloaded and delivered and afterwards to be refitted, without the Least offering to pay any Salvage, under pretence that the Master of the Spanish Mercht. Ship after plundering the Brigantine gave the same to the said Thos. Smith the Master.

Thereupon the Commr. and Owners of the English Privateer caused the said Ship to be arrested in the Vice Admiralty Court of Boston to Answer the said Salvage.

Pleas were given and Admitted and Several Witnesses Exd. on both sides, and the Judge of Vice Admiralty dismissed the Cause without giving any Salvage whatsoever, from which Decree it is Appealed on the behalf of the Comr. and Owners of the said English Privateer.

_Observe._ By the Depo[sitio]ns of the Witnesses there Appears to be some Variation relating to the Seizure of the Brigantine by the Spanish Mercht. Ship. Thos. Smith, Master of the Brigantine, and his Mariners Swear that the Spanish Mercht. Man after seizing and plundering her gave him the Ship.

Jeremiah Hariman, who was put on board by the English Privateer in Order to keep Possesn. of her, differs from them in his depo[sitio]ns.

_Q._[2] Are not the Owners and Comr. of the English Privateer intitled to a Moiety of the said Brigantine and her Lading for Salvage by reason the Brigantine was in Possessn. of the Spanish Privateer above 96 hours before she was retaken, and whether they have not Just Cause of Appeal.

[Footnote 2: For query, on which the London agents of Freebody and Norton (see doc. no. 154), or an admiralty proctor acting for them, sought the opinion of eminent civilians at Doctors' Commons--Dr. Strahan, Dr. Paul, and Dr. Andrews--for all the practitioners in the admiralty and ecclesiastical courts were doctors, of the civil law (D.C.L., Oxford) or of the civil and canon law (LL.D., Cambridge).]

If Capt. Norton, the Commander of the English Privateer, after having retaken the Brigantine from the Spanish Privateer, had kept possession of her, and Carried her safe into a British port, he and his Owners would have been entitled to Salvage, According to the Directions of the Act of Parliament. But as the Brigantine was afterwards taken by another Spanish Ship, before she got into Port, and not protected against the Enemy by Capt. Norton, it seems to me very doubtful whether he can Claim the Salvage According to the Act of Parliament, For Salvage is understood to be a Reward to the Recaptor, who has not only rescued the Ship and Cargo out of the hands of the Enemy, but has also effectually Secured the same for the benefit of the Owners, till the safe Arrival of the Ship in a British Port, Which not having been done in the present Case, makes me doubt of Success in an Appeal from the Sentence.

WILL. STRAHAN.[3]

DOCTRS COMMONS, May 17, 1742.

[Footnote 3: An eminent advocate, of Scottish origin, M.A. Edinburgh 1686, D.C.L. Oxford 1709, an advocate from 1710, advocate to the admiralty 1741-1748. As to Doctors' Commons, see doc. no. 102, note 2.]

According to the Evidence given in this Case I am of Opinn. that the Brigantine the _Sarah_, being taken the 17th of Septemr. 1741 by a Spanish Privateer in a voyage from Barbados, and retaken on the 26th of Septemr. 1741 by the Privateer the _Revenge_ from Rhode Island, commanded by Capt. Norton, and convey'd to Boston, The Captain of the Privateer the _Revenge_ will be well entitled to Salvage for the Brigantine and her cargo, and the said vessel having been 96 Hours in possession of the Spaniards, the _Revenge_ Privatr. will be well entitled to a Moiety of the value of Ship and Cargo.

The said Brigantine being seiz'd on the 4th of October by a Spanish Merchant Ship and plunder'd will not abate the _Revenge's_ Right to Salvage. If the Spanish Merchant Ship did actually give the Brigantine (on the 5th of October at the request of a Spanish Priest) to Mr. Thomas Smith, that will not barr the Salvage because such Ship could have no property in the Brigantine. I therefore think that there's good Reason for an appeal if this Case be truly stated.

G. PAUL.[4]

DR. COMMONS, July 10th 1742 Copy

[Footnote 4: George Paul, fellow of Trinity Hall, Cambridge, a foundation specially devoted to the civil law, LL.D. Cambridge 1704, vicar-general to the archbishop of Canterbury 1714-1755, king's advocate 1727-1755.]

The Right of Salvage acquir'd by the Recapture of the _Sarah_ Brigt. was not, I conceive, extinguished by its being taken again by the Spanish Merchant Ship, she not being carried _intra praesidia_,[5] but only plundered and let go. The Pretence of a Gift thereof to Captn. Smith can have no weight, for the Spanish Mercht. acquir'd no property by the Capture and could transfer none to Smith, who has deliver'd the Cargo to the Owners and Freighters, to which he would have had as much right as to the Ship. As the pretended Gift could transfer no property, it could extinguish no right which had been acquir'd by the _Revenge_, Except as to such part of the Cargo as was taken away by the Spaniard. But the Owners and Company of the _Revenge_ are intitled to a Moiety of the full Value of the Ship and Cargo, as she arriv'd at Boston, without any Deduction, and I am of Opinion that there is just ground of Appeal from the Sentence given in the Court of Admiralty there.

J. ANDREWS.[6]

Copy.

[Footnote 5: "Within the places of safety", such as ports or fleets. "Movable goods carried _intra praesidia_ of the enemy become clearly and fully his property, and consequently, if retaken, vest entirely in the recaptors. The same is to be said of ships, carried into the enemy's ports, and afterwards recaptured". Bynkershoek, _Quaestiones Juris Publici_, lib. 1, ch. 5.]

[Footnote 6: For Andrew; John Andrew, fellow of Trinity Hall, LL.D. Cambridge 1711, chancellor and judge of the consistory court of the diocese of London 1739-1747. He must have had a profitable practice, for he left L20,000 to Trinity Hall.]

_154. Letters to Owner from London Agents. June 10, July 17, 1742._[1]

[Footnote 1: Massachusetts Historical Society. Such were the uncertainties of transatlantic correspondence that letters were often sent in duplicate, as here, where a copy of the letter of June 10 is enclosed in that of July 17. The London agents of Freebody were the firm of Wilks, Bourryau, and Schaffer, merchants.]

LONDON June 10th 1742.
Mr. John Freebody. Copy per Capn. Jones.

_Sr._

We have receiv'd yor. favours of the 7th and 11th Decemr. inclosing sundry Papers and proceedings, relating to a Tryal in the Court of Admiralty at Boston between the Owners of the Privatr. _Revenge_ and one Capn. Smith which we have delivered to Mr. Everard Sayer, an eminent Proctor in the Commons,[2] who has perus'd them and taken the opinion of Doctr. Strahan, one of the best Civilians we have, of which we inclose you a Copy, which does not seem in yor. favour, but we shall get anor. Doctor's Opinion on it and see what he says.[3] the Store Bill you mention to have sent to Mrs. Harris[4] has never reach'd her hands, which we have formerly advis'd you of, we shall do all in our power to serve you in this Affair abot. the Appeal and hope to receive yor. farthr. Commands, remaing. with due Respect--

[Footnote 2: _I.e._, in Doctors' Commons.]

[Footnote 3: See doc. no. 153.]

[Footnote 4: Daughter of Wilks; see note 5, _post_.]

LONDON 17 July 1742.

_Srs._

Since the above Copy of our Last have recd. yr Favors of the 22d April. we are very Sorry to have occasion to inform you that our good Friend and Partner Francis Wilks, Esqr., departed this Life the 5th instant.[5] he had been in a very ill State of health for above two years past and the whole business of the house has been transacted by us for that time and we hope to the Satisfaction of all our Friends, who we Flatter our Selves will Continue their Favors to us and we Shall [be] ready to Serve you and promote yr. Interest to the best of our Capacity and assure you with great fidelity. we have taken Doctr. Paul's opinion ab't yr. Case which you have inclosed. it seems to be quite the reverse of what Dr. Strahan gave and is intirely for you; our Proctor has persuaded us to have yet another eminent Civilian's opinion, which if in our Favor he thinks we ought to pursue the appeal, of which shall acquaint you more hereafter. we have received the Certificate for the Snow _St. John_, Samll. Waterhouse, which have laid before the Navy board but have not as yet obtained a bill for the payment of it. at this Warr time there is so much hurry at the Navy office that we can not get any Satisfactory acct. relating to the head Money of the Spanyards taken by yr. Privateer. we are concerned at yr. Loss in the Man of Warr taking 15 of yr. Men.[6] it is an abominable practice yet it is what they frequently have done and go on with. there has been representations made abt. it at our Admiralty office but no redress has been obtained, only a few good Words that they would give orders to the Contrary. are pleased you got a litle ---- in her Way home. hope you will have greater Success hereafter which Shall be glad to hear. we Shall have a just regard to all yr Concerns under our Managemt. as if your own, and remain with due respect

Sir,

Yr. Most oblgd. h. Sts.,

BOURRYAU[7] AND SCHAFFER.

Mrs. Harris desires to be remembred to you. She is left sole [heiress of?] Mr. Wilks.

[Footnote 5: "Francis Wilks, esq., a director in the South Sea Company, died July 5." _Gentleman's Magazine_, XII. 387. He had been agent in London for the Massachusetts House of Representatives since 1728, and for Connecticut since 1730. Hutchinson, _Mass. Bay_, II. 353, describes him as a "merchant in London who ... was universally esteemed for his great probity as well as his humane obliging disposition".]

[Footnote 6: Impressment of seamen.]

[Footnote 7: Zachariah Bourryau, merchant, of Southampton Row, London, and Blighborough manor, Lincolnshire. He was of a French family settled in St. Christopher, W.I. He died in 1752, leaving an estate of about L40,000. _Caribbeana_, III. 251-252.]

_155. Decree of Vice-Admiralty Judge. July 7, 1742._[1]

[Footnote 1: Massachusetts Historical Society.]

Colony of Rhode Island, etc. }
Curia Admiralitatis }

James Allen, etc. proponents } against the Schooner _St. Joseph_ } _de las Animas_ for Gunns, Ammunition, } One Slave and Cargo etc. }

Having maturely considered the Evidence in this Case as well as the examination of Francisco Perdomo Capt. of the Spanish Privateer who being duly notified of the Trial and here in Court and being asked what he had to offer why sentence of Condemnation should not be passed against the said Schooner, her Gunns, Ammunition, Rigging, Tackle, Apparel and Furniture, etc. To which he Answered he had taken several prizes and had had them condemned and his Vessel, etc., according to the Laws of Nations and Rules of War was a good prize and therefore he had nothing to gainsay the Condemnation.

I therefore adjudge and Decree the said Schooner and her Gunns, Cables, Anchors, Rigging, Sails, Tackle, Apparel, with the Slave and her Cargo, etc. mentioned in the Libel, to be Condemned as good and lawful Prize to and for the Use of the Captors and Owners of the said Sloop _Revenge_ to be divided according to the Articles made between them.

I further Decree the Owners of the _Revenge_ and the Captors to pay the lawful Charge of Condemnation and all incident Charges.

S. PEMBERTON, D. Judge.[2]

NEWPORT July 7th 1742.

The above is a true Copy taken from the original and Compared by me.

[Footnote 2: Samuel Pemberton, merchant of Boston, son of Rev. Ebenezer Pemberton of the Old South Church, was deputy judge of the admiralty court in Rhode Island for a brief period in 1741 and 1742. In the archives of Rhode Island, in a volume lettered "Admiralty Papers, 1726-1745", there is a libel of James Allen, captain of the sloop _Revenge_, privateer, against the Spanish sloop _St. Joseph_, captured Mar. 1, 1743, on the north side of Cuba. But that was another incident; the _St. Joseph de las Animas_ was a schooner.]

_156. Letters to Owner from London Agents. July 27, August 13, 1742, February 16, 1743._[1]

[Footnote 1: Massachusetts Historical Society. A continuation of the correspondence in doc. no. 154.]

LONDON 27th July 1742.
Mr. John Freebody 1 p.c.
Copy per Ellis

_Sir_