To the Hono'ble Robt. Auchmuty, Esqr., Jud. of Vice Adm'ty.

The Libel of Philip Dumaresq,[2] Commander of the Private Man of War Sloop _Young Eagle_ of Boston, Sheweth,

[Footnote 2: Philip Dumaresq, son of Elias Dumaresq, seigneur des Augres in the island of Jersey, and of Frances de Carteret, came to Boston before 1716, and died there in 1743 or 1744. He was one of the first vestrymen of Trinity Church.]

Whereas on the 23d of Octob'r last his Majesty Caused Publick Proclamation to be made of an Open War with the King of Spain, requiring all his officers and Soldiers to do all Acts of Hostility in prosecution of this War against the King of Spain, his Va.s.sals and subjects, and afterwards on the 15th of January last the said Philip, Commander of the sloop aforesaid, and her men, being duly Commissioned with Letters of Marque and Reprisals against the King of Spain, his Va.s.sals and Subjects,[3] to attack, Seize, Take and make Prize of their Ships, Vessells and Goods, met with the Sloop the _Amsterdam Post_ about three or four Leagues off of the Grand Canary Island, standing in for Santa Crux in Teneriffe[4] in the King of Spains Dominions, Commanded by AEneas Mackay, a British Subject but made free of Amsterdam, man'd with British Subjects and furnished with various Papers and Evidences to make her seem to be either an English or Dutch Sloop, as might best suit the occasion, and upon Examination finding that she was the Property of certain Subjects of the King of Spain or Inhabitants of the Canaries within his Dominions, and by them during this present War sent from Teneriffe aforesd to Cork in Ireland and there Laden with thirty nine Barrells of Beef, Forty Barr'ls of Pilchards, eighty nine BBlls of b.u.t.ter, fifty four boxes of Candles, a hundred eighty nine Hides of Leather, five Bar'ls of Hatts, two Boxes of Soap and five Bar'ls of Wax for acco't of the same owners and was then returning directly to Teneriffe for their Supply, He the said Philip therefore Seized and Took the sd Sloop _Amsterdam Post_ and her Cargo as a Lawfull Prize, as he Lawfully might do, Wherefore the said Philip Dumaresq prays the consideration of this Hono'ble Court upon the premises properly and only in their Cognizance, that a Short Day[5] may be a.s.signed to Hear and pa.s.s upon this Libel and Matters therein contained and that the said Sloop and Cargo may be Decreed and declared a Lawfull Prize, etc.

JNO. READ.

W. BOLLAN.[6]

[Footnote 3: The commission from Governor Belcher, Aug. 24, 1739, is printed in [Augustus Thorndike Perkins], _A Sketch of the Family of Dumaresq_ (Albany, 1863), pp. 15-16.]

[Footnote 4: The harbor of Santa Cruz is on the side of Teneriffe toward the Grand Canary.]

[Footnote 5: An early date.]

[Footnote 6: Two of the leading lawyers of the province. Read had been attorney general and was now a member of the council. Bollan, Governor Shirley's son-in-law, was for many years agent of Ma.s.sachusetts in London.]

1740, July 23d, filed and allowed, and ordered that Publick Notifications be Posted upon the Sloop _Amsterdam Post_ and at the Town House, for all Persons Claiming Property in the said Sloop to Appear at a Court of Admiralty to be holden at Boston on Friday next at 10 a Clock A.M. To Make out their Property.

ROBERT AUCHMUTY, Judge Ad'y.

Accordingly at the time appointed the Court was opened and the Libel Read, at which Time Collonel Wendell[7] appeared and offered some Papers to be Lodged in Court, which he rec'd from the Owners of the Sloop, which the Judge refused to admit of, But told him he might Claim the Vessell and Cargo if he wou'd do it as the Act of Parliament requires, which he refus'd and said he Intended to put the Bonds[8] in Suit when he had proper Powers.

[Footnote 7: Col. Jacob Wendell (1691-1761), great-grandfather of Dr.

Oliver Wendell Holmes. Born in Albany, of Dutch descent, he might naturally be invoked to aid Amsterdam owners.]

[Footnote 8: _I.e._, the bonds of the privateer; see doc. no. 126, sect. XV.]

Publick Proclamation was then three Times Solemnly Made for all Persons claiming Property in the Sloop _Amsterdam Post_ and Cargo to make their appearance and they shou'd be heard, but none appeared; The Court was then Adjourn'd to Wednesday the 13th of August next at ten a Clock a.m., and the Judge ordered notifications to be Posted up as before for all persons claiming property to appear if they see cause.

The Court was opened on the 13th of August according to adjournment, and Proclamation Three Times Solemnly made for any Claimer to appear, whereupon Collo. Wendell Appeared in Court and Claim'd the said Sloop in behalf of Mr. Peter Devernet of Amsterdam, Merchant, which the Judge allow'd of upon his giving Security as the Act requires. The Court was then Adjourned to Wednesday morning at Seven a Clock, at which Time it was opened and the Libel Read, and Jacob Wendell, Esqr., in behalf of Peter Devernet of Amsterdam, Merch't, and his son Isaac Devernet of Santa Crux, Merch't, Claimed the said Sloop's Cargo as their Property. The Court was then adjourned to Monday the 18th Curr't at Seven a Clock a.m., at which Time it was Opened, when Jacob Wendell, Esqr., in Open Court made oath that he verily believed that Peter Devernet of Amsterdam, Merch't, in behalf of whom he claims the sd Vessell, was at the time of the Capture sole owner thereof, and also that the Cargo on board said Sloop was owned by the said Peter Devernet and his son Isaac, then Resident at Santa Crux in the Island of Teneriffe, Merch't. At the same time Collo. Wendell gave the following Bail, viz....

John Rous,[9] Late Lieuten't of the Sloop _Young Eagle_, Commanded by Capt. Philip Dumaresq, being Examined upon oath before the Hono'ble Robt. Auchmuty, Esqr., Judge of his Majestys Court of Vice Admiralty, as to the following Interrogatorys made the following answers.

[Footnote 9: This privateer subsequently became a captain in the royal navy. He distinguished himself in both the naval expeditions against Louisbourg, in 1745 and in 1758. Charnock, _Biographia Navalis_, V.

412-414. See also doc. no. 160, note 1.]

_Interro. The First._ Was the Sloop called the _Amsterdam Post_, aeneas Mackay Master,[10] taken as a Prize, by whom, when and where?

[Footnote 10: The connection of the Scottish Mackays with Holland has been long and important. Aeneas Mackay, son of the Scottish Lord Reay, entered the military service of the Dutch Republic in 1684, and rose to be general of the Scots Brigade; and for a hundred years, as long as that organization continued to exist (_The Scots Brigade in Holland_, Scottish History Society, _pa.s.sim_) there was always at least one Aeneas Mackay among its officers. In our own time Baron Aeneas Mackay was prime minister of the Netherlands. This shipmaster would be some humble member of the clan.]

_answer._ on the 15th day of January last this Depon't, who was Lieutenant of the Sloop _Young Eagle_ but at that Time Commander thereof in the absence of Philip Dumaresq the Captain, about three or four Leagues off the Grand Canary Island took the Sloop in this Interro. mention'd, standing in for Santa Crux in Teneriffe, and came last from Corke, and as the Master thereof said to this Depon't was bound to Madera,[11] but then going into one of the Canary Islands to get water, whereupon this Depon't sent his then Lieuten't on board, who Inform'd this Depon't that there was one Cask full of Water and another runing out and that he stopt the same and afterwards they found water sufficient to serve them in their Pa.s.sage to Madera which was ab't three Weeks.

[Footnote 11: _I.e._, to a Portuguese, neutral, port.]

_Interro. 2d._ What was the Lading of the Sloop _Amsterdam Post_?

_Answer._ She was Loaded with Beef, b.u.t.ter, Hatts, Shoes, Candles, Soap, Hides and some Pilchards, and for greater Certainty this Depon't referrs himself to the Bills of Lading.

_Interro. 3._ Are the Papers now produced before you and now Lodged in this Court, the Papers that were taken on Board the said Sloop as you know, or have heard, how, and in what manner?

_a._ This Depon't did not go on board said Sloop when taken and therefore can't say of his own knowledge that these are the Papers taken on board, but verily believes they are, for these Papers were sent to this Depon't by his Lieuten't from said Vessell some short Time after she was taken, and two of the Papers, namely, an English Mediterranean Pa.s.s[12] and a Paper in Spanish Importing a Clearance, as this Depon't was Inform'd by his officers whom he sent on board, was found between two Bed Bottoms belonging to the Master of said Sloop, and afterwards this Depon't saw the very place where they sayd the Papers were Concealed.

[Footnote 12: See doc. no. 141. A pa.s.s from the Admiralty, which, in accordance with the treaties between Great Britain and the Dey of Algiers, English vessels entering the Mediterranean had to carry in order to be exempt from search by the Algerine corsairs. Such a pa.s.s, of 1750, is printed in Marsden, _Law and Custom of the Sea_, II.

347-348. A full set of ships' papers seems to have consisted, at least in Dutch practice, of a bill of health (see doc. no. 197), a sea-letter or let-pa.s.s (docs. nos. 129, 130), a muster-roll (_role d'equipage_) or shipping-articles of the crew, and a clearance for the cargo.]

_Interro. 4._ Did you hear the sd Master of the Sloop aforesd Declare where he took in his aforesaid Loading?

_A._ This Depon't at Divers times heard the said Master Acknowledge and Declare that he took in his aforesd Loading at Corke in the Kingdom of Ireland, and also that he went from Teneriffe to Corke, where he purchased sd Loading, and was to return with the same immediately to Teneriffe, where two of his owners were Inhabitants and one other owner an Inhabitant of Holland.

_Interro. 5._ What was done with the Cargo after the Vessell and Cargo was thus taken?

_A._ All the Cargo with the Vessell was Carried into Madera and all or the greatest part of sd Cargo was Landed there.

_Interro. 6._ Is the Sloop now under Seizure the same Sloop that was thus taken?

_A._ Yes.

_Interro. 7._ What became of the hands belonging to said Sloop?

_A._ Two of them went on board the Man of War there, and two others went on board this sd Privateer, and the Mate was carried to Gibraltar, where he heard he ran away.

_Interro. 8._ Do you know or have you heard what Nation those hands were of?

_A._ The Master, Mate and one hand more he understood to be Scotch, two hands more to be Irish, one Boy belonging to London and a Portugueze or Spanish negro man.

_Lastly_, Do you know anything further relating to sd Vessell and Cargo or any other former Voyages the said Vessell had made and where to?

_A._ He heard the Master acknowledge he had been upwards of two years Master of said Vessell, during which Time he always used the Canary Trade, and always acknowledged his Vessell belonged to England till the last Voyage.

JOHN ROUS.

1740, August 12th. John Rous, the Subscriber to the aforegoing, made oath to the Truth thereof Before Me.

ROB'T AUCHMUTY, Judge Ad'y.

Captain Rous being Sworn in Court acknowledged his Examination already taken was the Truth. He also Declared there was Water enough on board the Sloop _Amsterdam Post_ to carry her into Madera, and actually served them for that purpose, viz. three of said Sloop's Crew and five belonging to the Privateer, which was one more than was on board at the time of the Capture; That Capt. Mackay was summoned by a Portugueze officer from the Consul[13] at Captn. Dumaresqs request, as Capt. Mackay told him, to go in the Privateer Sloop to Gibraltar in order for a Tryal; that Capt. Mackay told him he sailed from Holland to the Canaries two years as an English Man, and that he never sailed under Dutch Colours till the War with Spain; That Capt. Mackay told him that the Sloop at the time of the Capture belong'd to Mr. Devernet of Amsterdam and his two sons who lived at Teneriffe, who were all Frenchmen. That to his knowledge he never saw any of the Cargo Landed at Madera; that his Lieu't Immediately upon the Capture brought the Papers of the said Vessell to him, who having first perused them Sealed them up; that some short time after the said Mackay exprest to him his Desire, in case a certain Paper was found on board, that it would be useless to this Depon't, and that he would have it Concealed, whereupon this Depon't asked him what the Paper was and where in the Vessell it could be found, but the said Mackay would not inform him, and this desire of the said Mackays he repeated several times, and in about two Days after there was brought to this Depon't by John Teit, who acted as Mate on board the said Prize, two Papers from on Board, viz. an English Mediterranean Pa.s.s wherein the said Master and Sloop was named, and a Spanish Clearance as of an English Vessell, which was found as he said as mentioned by this Depon't in his former Examinat'n, and afterwards the said Mackay repeated his Desire in case a certain Paper, not naming it, should be found not to show it to any--Whereupon this Depon't Informed him that he had got what he meant and shew'd him the said Pa.s.s and Clearance, and then the said Master again pressed him not to shew the same to the Consul. That upon his arrival at Madera he Delivered the Papers so found and Seal'd up, together with the said Pa.s.s and Spanish Clearance, to Capt. Dumaresq in the Consul's House, that Capt. Dumaresq then delivered them to the Consul, who broke open the Seal and perused the Papers together with Capt. Dumaresq; and that he verily believes the Papers now in Court are all the Papers he so delivered up, excepting the said Pa.s.s.

[Footnote 13: The British consul at Funchal, Richard Baker; see docs.

nos. 140, 141.]

The Court was then adjourn'd to the 21st of Aug't Curr't at 7 a Clock a.m., at which time it was opened, when Michael Dumaresq being first Sworn Declar'd that his Examination already taken was the Truth. He further Declared that when Capt. Dumaresq arrived at Gibraltar he heard him say he wou'd go to the Govern'r,[14] to the Admiral,[15] and to the Judge of the Admiralty, that accordingly he saw the Captain go to Sir Chaloner Ogle, who was the Admiral, and to the Governour; that he heard Capt. Dumaresq Say the Admiral told him he believ'd the Vessell would be condemn'd; and that the Person called the Judge of Admiralty at Gibraltar, upon Capt. Dumaresq application to him for a Tryal, told him he had no Commission or Instructions to Try any Capture but expected the same from England every Day; That upon the arrival of the Sloop _Amsterdam Post_ at Madera there was an officer put on board her from the Provedore[16] and Judge of the Poor, that he remain'd on Board till other officers came on Board and unladed the Vessell and that Capt. Dumaresq paid the officer two Bitts[17] a Day and his Victuals during his Stay on Board.

[Footnote 14: Lieut.-Gen. William Hargrave.]

[Footnote 15: Rear-Adm. Sir Chaloner Ogle, afterward distinguished in the Cartagena expedition, and admiral of the fleet. See doc. no. 117, note 14.]