James Allen, etc. proponents } against the Schooner _St. Joseph_ } _de las Animas_ for Gunns, Ammunition, } One Slave and Cargo etc. }
Having maturely considered the Evidence in this Case as well as the examination of Francisco Perdomo Capt. of the Spanish Privateer who being duly notified of the Trial and here in Court and being asked what he had to offer why sentence of Condemnation should not be pa.s.sed against the said Schooner, her Gunns, Ammunition, Rigging, Tackle, Apparel and Furniture, etc. To which he Answered he had taken several prizes and had had them condemned and his Vessel, etc., according to the Laws of Nations and Rules of War was a good prize and therefore he had nothing to gainsay the Condemnation.
I therefore adjudge and Decree the said Schooner and her Gunns, Cables, Anchors, Rigging, Sails, Tackle, Apparel, with the Slave and her Cargo, etc. mentioned in the Libel, to be Condemned as good and lawful Prize to and for the Use of the Captors and Owners of the said Sloop _Revenge_ to be divided according to the Articles made between them.
I further Decree the Owners of the _Revenge_ and the Captors to pay the lawful Charge of Condemnation and all incident Charges.
S. PEMBERTON, D. Judge.[2]
NEWPORT July 7th 1742.
The above is a true Copy taken from the original and Compared by me.
[Footnote 2: Samuel Pemberton, merchant of Boston, son of Rev.
Ebenezer Pemberton of the Old South Church, was deputy judge of the admiralty court in Rhode Island for a brief period in 1741 and 1742.
In the archives of Rhode Island, in a volume lettered "Admiralty Papers, 1726-1745", there is a libel of James Allen, captain of the sloop _Revenge_, privateer, against the Spanish sloop _St. Joseph_, captured Mar. 1, 1743, on the north side of Cuba. But that was another incident; the _St. Joseph de las Animas_ was a schooner.]
_156. Letters to Owner from London Agents. July 27, August 13, 1742, February 16, 1743._[1]
[Footnote 1: Ma.s.sachusetts Historical Society. A continuation of the correspondence in doc. no. 154.]
LONDON 27th July 1742.
Mr. John Freebody 1 p.c.
Copy per Ellis
_Sir_
Since the foregoing Copy of our last have not recd. any of your favours. this serves to inclose you Dr. Andrews Opinion[2] relating to your Capture of Smiths Brigt. which as it is of your side and agreable to that of Dr. Paul we shall proceed in the Appeal and hope for Success, but as their Lordships in Councill[3] will not sitt to hear Appeals till February Next, you will have time En"o to give us your farther Directions about it and you may depend on our Serving your Interest as if our own. there is lately an Order come to the Navy Office for making out bills for the hire of American transports, which the Commrs. have promised to Comply with, so hope this will soon be ended and we shall hearafter acquaint you with our farther proceedings. we are with offers of Service--
[Footnote 2: See doc. no. 153.]
[Footnote 3: The commission to hear appeals generally included at this time the whole Privy Council.]
LONDON 13 Augt 1742.
_Sir._
Confirming the foregoing Copy of our Last, are not Favd. with any of yours. this Serves to inclose you Copy of yr Case abt. the Brigt.
_Sarah_ and the opinion of the 3 Doctors of the Civill Law. we have given 50 Security in the Commons[4] to prosecute the affair in the appeal before the King and Councill. we Shall in a few Days have a Navy bill made out for the hire of the Certificate of the Snow _St.
John_ when Shall acquaint you with the neat proceeds. We are with due respect
Sir
Yr. most hb. Servts.,
BOURRYAU AND SCHAFFER.
[Footnote 4: _I.e._, in the office of the registrar of the Lords Commissioners of Appeal in Prize Causes, in Doctors" Commons.]
LONDON Febry 16th 1742/3.
Mr. John Freebody Copy per Capt. Turner
_Sir_
We have recd. your favors of the 20th Octo. and 14th Decemr. with your Power of Attorney, also copy of Condemnation and Certificate for recovering the Kings bounty of 5 per head for the Spanish prisoners taken by Capn. Norton on board the Spanish Sc.o.o.ner Privateer called the _Joseph de las Animas_, which we have laid before the Navy Board, but have not as yet been able to get any Satisfactory answer to this nor the other for the _Divino Pastor_ and _Ynvincible_ Sloop which was left with them some Months agone. these great Men in office particularly in Warr time think themselves so much engaged in Governmt. Affairs that they Postpone every thing else, just at their own pleasure. We shall keep plying Constantly about "em and hope to Succeed one time or other. there is not as yet a day appointed for hearing the Appeal about the Brigt. _Sarah_. We shall Vigorously prosecute the affair and Acquaint you, in due time, with our Success.
we have Acquainted Dr. Paul and Andrews, with what you have further mention"d about Smith the Master of the Brigt., Capt. Norton and Compa. and Jeremiah Harriman, which hope may be of Service at the hearing. its certain you have been very unjustly dealt by in the proceedings of your Court of Admiralty, and are in great hopes you will meet with redress here at home. inclosed we send you Sales of the Freight Bill recd. on your Accot. for the hire of the _St. John_ Snow, Capt. Waterhouse, Net proceeds being 120.18.6, have Carried to your Credit. We heartily wish you further Success with Capt. Norton. Shure he"s a Gentn. of a fine Gallant behaviour and a just Scourge to these Jack Spaniards and deserves publick rewards from all Merchts. and traders that use the Seas. We are sorry to Acquaint you that Mrs.
Harris departed this Life in Octo. last after a Lingering Illness. we have not to add but to a.s.sure you that we shall in all Concerns observe your Interest as if our own, remaining with due respect
Sir
Yr. Most hb. Servts.
BOURRYAU AND SCHAFFER.
_157. Account rendered by a Proctor in London. February 10, 1744._[1]
[Footnote 1: Ma.s.sachusetts Historical Society. It will be observed that an appeal was an expensive process; that advocates" fees were expressed in guineas, multiples of 1. 1s.; that the proctor felt that he had to have a coach whenever he went to attend one of the sessions of the court; and that "the law"s delays" were abundantly exemplified.
The Lords Commissioners sat in the Council Chamber at the c.o.c.kpit in Whitehall. Their procedure can be gathered from the printed briefs, for appellant and respondent, which are preserved in a few American libraries, often bearing ma.n.u.script annotations by the lawyers for whom they were prepared. The Library of Congress has a collection of such briefs, some 200 in number, 1751-1764, bound in four huge folio volumes, and still ampler collections for the later wars of the century, American and French. The library of Brown University has two such volumes, embracing briefs in forty or fifty cases, 1780-1782.
Another collection, also bound in two volumes, formerly belonging to Mr. Gordon L. Ford, but now to the New York Public Library, is described by the late Paul L. Ford in the _Proceedings_ of the Ma.s.sachusetts Historical Society, XXV. 85-101, with full data respecting the twenty-five American cases.]
John Freebody and Benja. Norton, Commander of the private Ship of War Called the _Revenge_, the Owners of the said Ship, Ag[ains]t Thomas Lee and John Tyler, Owners of the Ship Called the _Sarah_, whereof Thomas Smith is Mas[te]r, the Goods therein Lately Retaken by the sd.
private Ship of War Called the _Revenge_,
In a Certain Cause of Appeal from the Vice Admiralty of the province of Ma.s.sachusets Bay.
_May 1742_
For proctors fee consulted 0. 5.
For perusing the whole proceedings 13. 4 For drawing a State of the Case for Counsel 16. 8 For a Copy thereof for Dr. Strahans Opinion 5.
For Dr. Strahans fee giving his Opinion in Writing 2. 2.
For Attending on him 6. 8 For a Copy of the Case for Dr. Pauls Opinion 5.
For his fee giving his Opinion in Writing 2. 2.
For Attending on him 6. 8 For a Copy of the Case for Dr. Andrews Opinion 5.
For his fee giving his Opinion in Writing 2. 2.
For Attending on him 6. 8 For Interposing a protocal of Appeal before a Notary 6. 8 For the Caution[2] entred into to prosecute the Appeal and Stamps 7. 6 For the Marshalls Report 8.
For Entring into Bail 5.
For the Proctors fee praying an Inhibition and Monition and Surrogates fee[3] 6.
[Footnote 2: Security or bond.]
[Footnote 3: On application, the Lords Commissioners of Appeal, or their deputy the _surrogate_, would issue an _inhibition_ to the judge of the court from which the appeal had come up, enjoining him to stop all further proceedings, and a _monition_ to transmit all the past proceedings in the cause to them; these latter doc.u.ments const.i.tuted the _transmiss_ or _transmission_ mentioned below. Browne, _Civil and Admiralty Law_ (ed. 1802), II. 439. Clerke, _Praxis Curiae Admiralitatis_, t.i.t. 57.]
_Aug"t 5th 1742_
For the Inhibition and Monition under Seal and Stamps and Extracting 2. 6.10 For the Effect of that Said Inhibition 1.
_Nov"r 11th._