Part 63 (1/2)
[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 s.h.i.+p 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 s.h.i.+p the said Harriman desired to enter on board said s.h.i.+p, 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 s.h.i.+p ask the Captain whether he would receive the said Jeremiah Hariman as a hand on board his s.h.i.+p 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 s.h.i.+p 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 s.h.i.+p, 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 s.h.i.+p Chartered in his Voyage happens to be taken By An Enemy, and Afterwards in Battle is Retaken by Another s.h.i.+p 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._