The Right of Salvage acquir'd by the Recapture of the Sarah Brigt. was not, I conceive, extinguished by its being taken again by the Spanish Merchant Ship, she not being carried intra praesidia,[5] but only plundered and let go. The Pretence of a Gift thereof to Captn. Smith can have no weight, for the Spanish Mercht. acquir'd no property by the Capture and could transfer none to Smith, who has deliver'd the Cargo to the Owners and Freighters, to which he would have had as much right as to the Ship. As the pretended Gift could transfer no property, it could extinguish no right which had been acquir'd by the Revenge, Except as to such part of the Cargo as was taken away by the Spaniard. But the Owners and Company of the Revenge are intitled to a Moiety of the full Value of the Ship and Cargo, as she arriv'd at Boston, without any Deduction, and I am of Opinion that there is just ground of Appeal from the Sentence given in the Court of Admiralty there.
J. Andrews.[6]
Copy.
[1] Massachusetts Historical Society.
[2] For query, on which the London agents of Freebody and Norton (see [doc. no. 154]), or an admiralty proctor acting for them, sought the opinion of eminent civilians at Doctors' Commons—Dr. Strahan, Dr. Paul, and Dr. Andrews—for all the practitioners in the admiralty and ecclesiastical courts were doctors, of the civil law (D.C.L., Oxford) or of the civil and canon law (LL.D., Cambridge).
[3] An eminent advocate, of Scottish origin, M.A. Edinburgh 1686, D.C.L. Oxford 1709, an advocate from 1710, advocate to the admiralty 1741-1748. As to Doctors' Commons, see [doc. no. 102], [note 2].
[4] George Paul, fellow of Trinity Hall, Cambridge, a foundation specially devoted to the civil law, LL.D. Cambridge 1704, vicar-general to the archbishop of Canterbury 1714-1755, king's advocate 1727-1755.
[5] "Within the places of safety", such as ports or fleets. "Movable goods carried intra praesidia of the enemy become clearly and fully his property, and consequently, if retaken, vest entirely in the recaptors. The same is to be said of ships, carried into the enemy's ports, and afterwards recaptured". Bynkershoek, Quaestiones Juris Publici, lib. 1, ch. 5.
[6] For Andrew; John Andrew, fellow of Trinity Hall, LL.D. Cambridge 1711, chancellor and judge of the consistory court of the diocese of London 1739-1747. He must have had a profitable practice, for he left £20,000 to Trinity Hall.
154. Letters to Owner from London Agents. June 10, July 17, 1742.[1]