[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 cla.s.ses 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 Pa.s.sage 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 Pa.s.sage 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 Ent.i.tled 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 Rest.i.tution 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 Rest.i.tution 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 Rest.i.tution 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 Rest.i.tution 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 Ent.i.tuled 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 Rest.i.tution 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 Rest.i.tution. 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 Ent.i.tuled 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 t.i.tle 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 ent.i.tled to rest.i.tution on paying salvage, but the last captors [_e.g._, Smith] are ent.i.tled 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 Ma.s.sachusetts 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 a.s.sociation 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 Ma.s.sachusetts 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: Ma.s.sachusetts 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 Pa.s.sage 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 Pa.s.sage 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.