[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]
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.
[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.
[2] Attorney-general of the province of Massachusetts Bay 1722-1723, 1729-1749.
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 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 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 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. |