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 int.i.tled 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 pract.i.tioners 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 ent.i.tled 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 ent.i.tled 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 ent.i.tled 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 int.i.tled 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 20,000 to Trinity Hall.]

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

[Footnote 1: Ma.s.sachusetts 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 a.s.sure 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 Ma.s.sachusetts House of Representatives since 1728, and for Connecticut since 1730. Hutchinson, _Ma.s.s. 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 40,000. _Caribbeana_, III. 251-252.]

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

[Footnote 1: Ma.s.sachusetts Historical Society.]

Colony of Rhode Island, etc. } Curia Admiralitatis }