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.]