that he was a Roman and had a wife at St. Augustine, 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.

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

2

The Case was then fully debated by the Advocates on both sides and on the Seventh of Decemb'r Aforesaid his Honour the Judge gave the following Decree, vizt.

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 Com

"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. *Records of the Admiralty Court, Boston, "vol. V."

*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.

pany 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

Ist. 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.

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 Lawful 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. a Dutch man of war takes an English Merchant man and Afterwards an Eng

Continue through the night.

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.

5

lish man of war Meets the Dutchman of war and his Prize and in Aperto Prelio 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 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.

7

Lastly, I Observe the Words of the Stat. in the Case of Recaption 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.

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 awfull to the Recaptors the Briganteen was again taken by a Spaniard, which puts an Entire End to Salvage for a forner 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 nade the Restitution. Therefore I decree the said Libel to tand dismist, but inasmuch as the Prepon'ts have been in art 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.

151. Appeal in Prize Case. December 8, 1741.

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.

"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.

1Records 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.

2

Attorney-general of the province of Massachusetts Bay 1722-1723, 1729

152. Bond for Appeal in Prize Case. December 19, 1741.1

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 Law full 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 Massachusetts 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

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.