Part 63 (2/2)

[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 s.h.i.+p [_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 s.h.i.+p 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 s.h.i.+p 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.

s.h.i.+p after plundering the Brigantine gave the same to the said Thos.

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