Nichols, _Argument in Peele vs. Merchants Insurance Co._ (Boston, 1826), pp. 127-132. Various extracts are in Mr. n.o.ble's article, pp.

170-184. War with Spain had been declared Oct. 23. Instructions to privateers were of course issued in every war. Parts of those put forth in 1693, 1705, 1706, and 1744 are printed in F.T. Pratt, _Law of Contraband of War_ (London, 1856), pp. 264-269, 257. Others are in R.G. Marsden, _Law and Custom of the Sea_, II. 404-435. Of acts of Parliament on privateers and prizes, the latest in force at this date was that of 9 Anne ch. 27, but a fresh act was under discussion in Parliament at this date, and on Dec. 20 the royal a.s.sent was given to the act 13 Geo. II. ch. 4, "for the encouraging of seamen to enter into his Majesty's service".]

Instructions for the Commanders of such Merchant Ships and Vessells as may have Letters of Marque or Commissions for Private Men of War against the King of Spain, his Va.s.sals and Subjects or others Inhabiting within any of His Countries, Territories or Dominions, by Vertue of Our Commission Granted under the Great Seal of Great Britain, bearing Date the Thirtieth Day of November 1739.[2] Given at our Court at St. James's the 30th Day of November 1739, in the Thirteenth Year of Our Reign.

[Footnote 2: Commission to the Lords of the Admiralty authorizing them to provide for the issue of privateering commissions or letters of marque; see doc. no. 127.]

I. That it shall be Lawful for the said Commanders of Merchant Ships and Vessells, Authorized by Letters of Marque or Commissions for Private Men of War, to set upon by force of arms and to subdue and take the Men of War, Ships and other Vessells whatsoever, as also the Goods, Moneys and Merchandizes, belonging to the King of Spain, his Va.s.sals and Subjects, and others Inhabiting within any of his Countries, Territories or Dominions, and such other Ships, Vessells and Goods, as are, or shall be, liable to Confiscation, pursuant to the Treaties between Us and other Princes, States and Potentates: But so as that no Hostility be committed, nor Prize Attacked, Seized or taken within the Harbours of Princes and States in Amity with Us, or in their Rivers or Roads within Shott of their Cannon.

II. That all Ships of what Nation soever carrying any Soldiers, arms, Powder, Ammunition or any other Contraband Goods, to any of the Territories, Lands, Plantations or Countries of the King of Spain shall be seized as Prizes.

III. That the said Commanders of such Merchant Ships and Vessells shall bring such Ships and Goods, as they have Seized or shall so seize and take to such Port of this Our Realm of England, or some other Port of Our Dominions as shall be most convenient for them, in order to have the same Legally Adjudged in Our High Court of Admiralty of England, or before the Judges of such other Admiralty Courts, as shall be Lawfully authorized within Our Dominions: But if such Prize be taken in the Mediterranean or within the Streights of Gibraltar, then the Captor may if he doth not think fit to bring the same to some Port of England, or other Our Dominions, carry such Ship and Goods into the Ports of such Princes or States as are in alliance or amity with us.

IV. That after such Ships shall be taken and brought into any Port the Taker shall be Oblig'd to bring or send, as soon as possible may be, Three or Four of the Princ.i.p.al of the Company (whereof the Master and the Pilot to be always two) of every Ship so brought into Port, before the Judge of the Admiralty of England, or his Surrogate, or before the Judge of such others Admiralty Courts, within our Dominions, as shall be Lawfully Authorized as aforesaid, or such as shall be Lawfully Commissioned in that behalf, to be sworn and examined upon such Interrogatories as shall tend to the Discovery of the Truth,[3]

touching the Interest or Property of such Ship or Ships, and of the Goods and Merchandizes found therein: and the Taker shall be further obliged at the Time he produceth the Company to be Examin'd, to bring and deliver into the hands of the Judge of the Admiralty of England, his Surrogate, or the Judge of such other Admiralty Courts within Our Dominions, as shall be Lawfully Authorized, or others Commissioned as aforesaid, all such Pa.s.ses, Sea Briefs, Charter-Parties, Bills of Lading, c.o.c.kets, Letters and other Doc.u.ments and Writings as shall be Delivered up, or found on board any such Ship; the said Taker or one of his Chief Officers, who was present, and saw the said Papers and Writings Delivered up, or otherwise found on board at the time of the Capture, making Oath, That the said Papers and Writings are brought and Delivered in as they were received or taken, without any Fraud, Addition, Subtraction or Embezilment.

[Footnote 3: See doc. no. 183.]

V. That all such Ships, Goods and Merchandizes taken by Vertue of Letters of Marque or Commissions for Private Men of War, shall be kept and preserved, and no part of them shall be sold, spoiled, wasted, or diminished, and that the Bulk thereof shall not be broken before Judgment be given in the High Court of Admiralty of England, or some other Court of Admiralty Lawfully Authorized in that behalf, that the said Ships, Goods and Merchandizes are Lawful Prize; and that no Person or Persons, taken or Surprized in any Ship or Vessell as aforesaid, tho' known to be of the Enemy's Party, shall be in Cold Blood killed, maimed, or by Torture and Cruelty Inhumanly Treated, contrary to the Common Usage and just Permission of War: and whoever shall offend in any of the premises shall be severely punished.

VI. That the said Commanders of such Merchant Ships and Vessells, who shall obtain the said Letters of Marque, or Commissions, as aforesaid for Private Men of War, shall not do or attempt anything against the true meaning of any article or articles, Treaty or Treaties depending between Us, or any of Our Allies, touching the freedom of Commerce in the Time of War, and the Authority of the Pa.s.s Ports or Certificates under a certain Form in some one of the Articles or Treaties so depending between Us and Our Allies as aforesaid, when produced and shewn by any of the Subjects of Our said Allies, and shall not do or attempt anything against Our Loving Subjects, or the Subjects of any Prince or State in Amity with Us, nor against their Ships, Vessells or Goods, but only against the King of Spain, his Va.s.sals and Subjects, and others Inhabiting within His Countries, Territories or Dominions, their Ships Vessells and Goods,--except as before Excepted; and against such other Ships, Vessells and Goods, as are or shall be liable to Confiscation.

VII. That after Condemnation of any Prize, it shall or may be Lawful for the Commanders of such Merchant Ships or Vessells or the Owners of the same, to keep such and so many Ships, Vessells Goods and Merchandizes as shall be Condemned to them, for Lawful Prizes, in their own Possession, to make Sale or Dispose thereof in Open Market or Otherwise, to their best Advantage in as ample manner as at any time heretofore has been Accustomed in Cases of Letters of Marque, or of Just Prizes in Time of War; other than wrought Silks, Bengalls, and Stuffs mixed with Silk or [Herbs] of the Manufacture of Persia, China or East India, or Callicoes painted, dyed, printed or stained there, which are to be deposited for Exportation, according to the Directions of an Act made in the Eleventh Year of the Reign, of the late King William, Ent.i.tuled _An Act for the More Effectual Employing the Poor by Encouraging the Manufactures of this Kingdom_:[4] And that it shall be Lawful for all manner of Persons as well Our Subjects as others, according to Law, to buy the said Ships, Vessells, Goods and Merchandizes, so taken and Condemned for Lawful Prize, without any Damage or Molestation to Ensue thereupon to the said Byers, or any of them, by reason of the Contracting or Dealing for the same.

[Footnote 4: 11 and 12 Will. III. ch. 10.]

VIII. That if any Ship or Vessell, belong'g to Us or Our Subjects, or to Our Allies or their Subjects, shall be found in Distress, by being in fight, set upon, or taken by the Enemy, the Captain, Officers and Company, who shall have such Letters of Marque or Commission, as aforesaid, shall use their best Endeavours to give aid and Succour to all such Ship or Ships, and shall to the utmost of their power Labour to free the same from the Enemy.

IX. That Our Subjects and all other Persons whatsoever, who shall either in their own persons serve, or bear any Charge or Adventure, or in any sort further or set forward the said Adventure, according to these Articles, shall stand and be freed by vertue of the said Commission; and that no person be in any wise reputed or challenged for an offender, against Our Laws, but shall be freed, under Our Protection, of and from all Trouble and Vexation that might in any wise grow thereby, in the same manner as any other Our said Subjects ought to be by Law, in their Aiding or a.s.sisting Us, either in their own persons, or otherwise, in a Lawful War against Our declared Enemies.

X. That the said Commanders of such Merchant Ships and Vessells or their Owners or Agents before the taking out Commissions, shall give Notice in Writing, Subscribed with their hands, to Our High Admiral of Great Britain, for the Time being, or Our Commissioners for Executing the Office of Our High Admiral or the Commissioners for Executing that Office for the Time being, or the Lieutenant or Judge of the said High Court of Admiralty, or his Surrogate, of the Name of their Ship, and of the Tunnage and Burthen, and the Names of the Captain, Owners or Setters out of the said Ship, with the Number of Men, and the Names of the Officers in her, and for what Time they are Victualled, as also of their Ordnance, Furniture and Ammunition; To the End the same may be Registered in the said Court of Admiralty.

XI. That those Commanders of such Merchant Ships and Vessels, who shall have such Letters of Marque or Commissions as aforesaid, shall hold and keep, and are hereby Enjoyn'd to hold and keep a Correspondence, by all Conveniences, and upon all occasions, from Time to Time, with Our High Admiral of Great Britain for the Time being, or Our Commissioners for Executing the Office of Our High Admiral, or the Commissioners for Executing that office for the Time being, or their Secretary, so as from Time to Time to render and give unto him or them not only an account and Intelligence of their Captures or Proceedings by vertue of such their said Letters of Marque, or Commissions as aforesaid; but also of whatsoever else shall Occur unto them, or be discovered or declared unto them, or found out by them, by Examination of, or Conference with, any mariners or Pa.s.sengers, of or in the Ships or Vessells taken, or by any other ways or means whatsoever, touching or concerning the designs of the Enemy, or any of their Fleets, Ships, Vessells or Parties; and of the Stations, Seas, Ports and Places and of their Intents therein; and of what Merchant Ships or Vessells of the Enemy, bound out or Home, as they shall hear of; and of what else Material in these Cases may arrive to their knowledge, to the End such Course may be thereupon taken, and such Orders given as may be requisite.

XII. That no Commander of a Merchant Ship or Vessel who shall have a Letter of Marque or Commission as aforesaid, shall presume, as they will answer it at their Peril, to wear any Jack, Pendant or any other Ensign or Colour, Usually born by Our Ships, but that besides the Colours born Usually by Merchant Ships, they do wear a Red Jack with the Union Jack described in the Canton at the Upper Corner thereof near the Staff,[5] and that One third part of the whole Company of every such Ship or Vessel so fitted out as aforesaid shall be Land Men.

[Footnote 5: Like the present red flag of the British merchant marine.]

XIII. That such Commanders of Merchant Ships and Vessels who shall Obtain such Letters of Marque or Commissions, as aforesaid, shall also from Time to Time, upon due Notice being given them, observe all such other Instructions and Orders as We shall think fit to direct for the better carrying on of this Service.

XIV. That all Persons who shall Violate these Instructions shall be severely punished, and also required to make full Repairation to Persons Injured contrary to these Instructions for all Damages they shall sustain by any Capture, Embezilment Demurrage or otherwise.

XV. That before any such Letters of Marque or Commissions issue under Seal, Bail with Sureties shall be given before the Lieutenant and Judge of Our High Court of Admiralty of England, or his Surrogate, in the Sum of Three thousand Pounds Sterling, if the Ship carries above One hundred and fifty Men; and if a Lesser Number, in the Sum of Fifteen hundred pounds Sterling; Which Bail shall be to the Effect, and in the form following:

Which Day, Time and Place Personally Appeared ---- Who submitting themselves to the Jurisdiction of the High Court of Admiralty of England, Obliged themselves, their Heirs, Executors and Admin'rs to Our Sovereign Lord the King, in the Sum of ---- Pounds of Lawful Money of Great Britain, to this Effect, That is to Say, Whereas ---- is Authorized by Letters of Marque, or a Commission for a Private Man of War, to Arm, Equip, and set forth to Sea, the Ship called the ---- of the burthen of about ---- Tons whereof he the said ---- goeth Captain, with Men, Ordnance, Ammunition and Victuals, to set upon by force of Arms, and to Subdue, Seize and Take the Men of War, Ships and other Vessells whatsoever together with the Goods, Monies and Merchandizes, belonging to the King of Spain, or to any of his Va.s.sals and Subjects, or others Inhabiting within any of His Countries, Territories or Dominions whatsoever, and such other Ships, Vessels and Goods, as are or shall be liable to Confiscation, excepting only within the Harbours or Roads within Shot of the Cannon of Princes and States in Amity with His Majesty, and whereas he the said ---- has a Copy of certain Instructions Approved of and Pa.s.sed by His Majesty in Council, delivered to him to Govern himself therein, as by the Tenour of the said Commission, and of the Instructions thereto relating, more at large appeareth. If therefore nothing be done by the said ---- or any of his Officers, Mariners, or Company, contrary to the true meaning of the said Instructions, but that the Commission aforesaid and the said Instructions shall in all particulars be well and truly performed and Observed as far as they shall the said Ship, Captain and Company any way concern: and if they or any of them, shall give full Satisfaction for any Damage or Injury which shall be done by them, or any of them, to any of His Majesty's Subjects or Allies or Neuters, or their Subjects: and also if the said ---- and his officers and Mariners shall duly and truly pay or cause to be paid to His Majesty, or to such Person or Persons as shall be by His Majesty Authorized to receive the Same, the Just Tenths or Tenth part, according to the due and Legal Appraizement of all such Ships and Goods as shall be by them or any of them taken or Seized, and shall be by due Course of Law Adjudged to be good and Lawful Prize: And also shall duly and truly pay or cause to be paid to His Majesty, or the Customers or Officers Appointed to receive the same for His Majesty, the Usual Customs due to His Majesty of and for all Ships and Goods so as aforesaid taken and Adjudged for Prize: And moreover if the said ---- shall not take any Ship or Vessel, or any Goods or Merchandizes belonging to the Enemy, or otherwise liable to Confiscation, thro' Consent or Clandestinely, or by Collusion, by Vertue, Colour or pretence of his said Commission; that then this Bail shall be Void and of None Effect and unless they shall so do, they do all hereby Severally Consent that Execution shall Issue forth against them, their Heirs, Executors and Administrators, Goods and Chattels, wheresoever the same shall be found, to the value of the said Sum of ---- Pounds, before mentioned. And, in Testimony of the Truth thereof they have hereunto Subscribed their names.

By His Majesty's Command.

HARRINGTON.[6]

A True Copy Exam'd per JOHN PAYNE D. Reg'r.[7]

[Footnote 6: William Stanhope, lord Harrington, afterward earl of Harrington, was one of the two secretaries of state from 1730 to 1742, and from 1744 to 1746.]

[Footnote 7: Deputy register of the vice-admiralty court in Boston.]

_127. (Draft of) Warrant to Governors to issue Letters of Marque.

April 26, 1740._[1]

[Footnote 1: Public Record Office, Admiralty 1:3674.]

By the Commissioners for executing the Office of Lord High Admiral of Great Britain and Ireland, etc.

Whereas by an Act pa.s.sed this present Session of Parliament (int.i.tuled, an Act for the more Effectual securing and encouraging the Trade of his Majesty's British subjects to America, and for the Encouragement of Seamen to enter into his Majesty's service)[2] it is, amongst other Things, therein enacted "That any Person or Persons in any part of America or elsewhere, by us impowered and appointed, shall, from and after the fourth Day of January, one thousand seven hundred and thirty nine, at the Request of any British Owner or Owners of any Ship or Vessel, giving such Bail and Security as have been usually taken upon granting Commissions, or Letters of Marque (except only for the payment of the Tenths of the Value of Prizes which shall be taken, to the Lord High Admiral, or Commissioners for executing the Office of Lord High Admiral for the time being) cause to be issued forth in the usual manner, one or more Commission or Commissions, to any Person or Persons whom such Owner or Owners shall nominate to be Commander; or in case of Death, successively Commanders of such Ship or Vessel, for the attacking, surprizing, seizing and taking, by and with such Ship or Vessel, or the Crew thereof, any Place or Fortress upon the Land, or any Ship or Vessel, Goods, Ammunition, Arms, Stores of War, or Merchandizes, belonging to or possessed by any of his Majesty's Enemies, in any Sea, Creek, Haven, or River",

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

These are therefore to impower you, Edward Trelawny, Esquire, Governor of Jamaica,[3] and by these Presents we do impower and appoint you the said Edward Trelawny, Esquire, to cause to be issued forth, pursuant to the said Act, by Warrant under your Hand, and the Seal of the said Island, directed to the Judge of the Admiralty of the said Island of Jamaica, Commissions or Letters of Marque, at the Request of any British Owner or Owners of any Ship or Vessel, to any Person or Persons whom such Owner or Owners shall nominate to be Commander; or in case of Death successively Commanders of such Ship or Vessel; and to cause such Bail and Security to be taken as is directed by the said Act, and moreover to cause that, in granting such Commissions or Letters of Marque, all other Things be had and done conformable to, and as the said Act requires. For which this shall be your Warrant.

Given under our Hands and the Seal of the Office of Admiralty this ---- Day of ---- 1740.

[Footnote 3: Governor of Jamaica from 1738 to 1752.]

To ----

_May it please your Lordships,_

This contains a Draught of an Instrument submitted to your Lordships, as proper to be signed, and issued out to the Governors of his Majesty's Colonies and Islands in America, prepared by me; pursuant to your Lordships Order of the 15th of April 1740.

E. ISHAM.[4]

April 26th 1740.

[Footnote 4: Edmund Isham, advocate general of the Admiralty.]

DUMARESQ VS. THE _AMSTERDAM POST_.

_128. Record of the Admiralty Court, and Libel. July 23, August 30, 1740._[1]

[Footnote 1: Records of the admiralty court, Boston, Suffolk County Court-house, vol. V.; see doc. no. 126, note 1. It is to be understood that the libel, and the other doc.u.ments which follow, nos. 129-143, are to be found imbedded in the record of the case in the volume named, not separate. The case is interesting as showing some of the deceptions which might be, and often were, resorted to in time of war.

War existed between Great Britain and Spain; the Dutch were neutrals.

Briefly, the _Amsterdam Post_ was provided with two sets of papers, one Spanish, to be used in case she were overhauled by a Spanish war-vessel or privateer, one Dutch, to be used in case she fell into British hands. Robert Auchmuty was judge of the admiralty court in Boston from 1733 to 1747.]

At a Court of Admiralty holden at Boston before the Hono'ble Robert Auchmuty Esq., Judge of said Court, the 30th day of August A.D. 1740.

New Engl'd } Prov. of the Ma.s.sa's Bay } Boston, July 23, 1740.