128. Record of the Admiralty Court, and Libel. July 23, August 30, 1740.[1]
At a Court of Admiralty holden at Boston before the Hono'ble Robert Auchmuty Esq., Judge of said Court, the 30th day of August A.D. 1740.
New Engl'd
Prov. of the Massa's Bay | bracket | Boston, July 23, 1740. |
To the Hono'ble Robt. Auchmuty, Esqr., Jud. of Vice Adm'ty.
The Libel of Philip Dumaresq,[2] Commander of the Private Man of War Sloop Young Eagle of Boston, Sheweth,
Whereas on the 23d of Octob'r last his Majesty Caused Publick Proclamation to be made of an Open War with the King of Spain, requiring all his officers and Soldiers to do all Acts of Hostility in prosecution of this War against the King of Spain, his Vassals and subjects, and afterwards on the 15th of January last the said Philip, Commander of the sloop aforesaid, and her men, being duly Commissioned with Letters of Marque and Reprisals against the King of Spain, his Vassals and Subjects,[3] to attack, Seize, Take and make Prize of their Ships, Vessells and Goods, met with the Sloop the Amsterdam Post about three or four Leagues off of the Grand Canary Island, standing in for Santa Crux in Teneriffe[4] in the King of Spains Dominions, Commanded by AEneas Mackay, a British Subject but made free of Amsterdam, man'd with British Subjects and furnished with various Papers and Evidences to make her seem to be either an English or Dutch Sloop, as might best suit the occasion, and upon Examination finding that she was the Property of certain Subjects of the King of Spain or Inhabitants of the Canaries within his Dominions, and by them during this present War sent from Teneriffe aforesd to Cork in Ireland and there Laden with thirty nine Barrells of Beef, Forty Barr'ls of Pilchards, eighty nine BBlls of Butter, fifty four boxes of Candles, a hundred eighty nine Hides of Leather, five Bar'ls of Hatts, two Boxes of Soap and five Bar'ls of Wax for acco't of the same owners and was then returning directly to Teneriffe for their Supply, He the said Philip therefore Seized and Took the sd Sloop Amsterdam Post and her Cargo as a Lawfull Prize, as he Lawfully might do, Wherefore the said Philip Dumaresq prays the consideration of this Hono'ble Court upon the premises properly and only in their Cognizance, that a Short Day[5] may be assigned to Hear and pass upon this Libel and Matters therein contained and that the said Sloop and Cargo may be Decreed and declared a Lawfull Prize, etc.
Jno. Read.
W. Bollan.[6]
1740, July 23d, filed and allowed, and ordered that Publick Notifications be Posted upon the Sloop Amsterdam Post and at the Town House, for all Persons Claiming Property in the said Sloop to Appear at a Court of Admiralty to be holden at Boston on Friday next at 10 a Clock A.M. To Make out their Property.
Robert Auchmuty, Judge Ad'y.
Accordingly at the time appointed the Court was opened and the Libel Read, at which Time Collonel Wendell[7] appeared and offered some Papers to be Lodged in Court, which he rec'd from the Owners of the Sloop, which the Judge refused to admit of, But told him he might Claim the Vessell and Cargo if he wou'd do it as the Act of Parliament requires, which he refus'd and said he Intended to put the Bonds[8] in Suit when he had proper Powers.
Publick Proclamation was then three Times Solemnly Made for all Persons claiming Property in the Sloop Amsterdam Post and Cargo to make their appearance and they shou'd be heard, but none appeared; The Court was then Adjourn'd to Wednesday the 13th of August next at ten a Clock a.m., and the Judge ordered notifications to be Posted up as before for all persons claiming property to appear if they see cause.
The Court was opened on the 13th of August according to adjournment, and Proclamation Three Times Solemnly made for any Claimer to appear, whereupon Collo. Wendell Appeared in Court and Claim'd the said Sloop in behalf of Mr. Peter Devernet of Amsterdam, Merchant, which the Judge allow'd of upon his giving Security as the Act requires. The Court was then Adjourned to Wednesday morning at Seven a Clock, at which Time it was opened and the Libel Read, and Jacob Wendell, Esqr., in behalf of Peter Devernet of Amsterdam, Merch't, and his son Isaac Devernet of Santa Crux, Merch't, Claimed the said Sloop's Cargo as their Property. The Court was then adjourned to Monday the 18th Curr't at Seven a Clock a.m., at which Time it was Opened, when Jacob Wendell, Esqr., in Open Court made oath that he verily believed that Peter Devernet of Amsterdam, Merch't, in behalf of whom he claims the sd Vessell, was at the time of the Capture sole owner thereof, and also that the Cargo on board said Sloop was owned by the said Peter Devernet and his son Isaac, then Resident at Santa Crux in the Island of Teneriffe, Merch't. At the same time Collo. Wendell gave the following Bail, viz....
John Rous,[9] Late Lieuten't of the Sloop Young Eagle, Commanded by Capt. Philip Dumaresq, being Examined upon oath before the Hono'ble Robt. Auchmuty, Esqr., Judge of his Majestys Court of Vice Admiralty, as to the following Interrogatorys made the following answers.
Interro. The First. Was the Sloop called the Amsterdam Post, Æneas Mackay Master,[10] taken as a Prize, by whom, when and where?
answer. on the 15th day of January last this Depon't, who was Lieutenant of the Sloop Young Eagle but at that Time Commander thereof in the absence of Philip Dumaresq the Captain, about three or four Leagues off the Grand Canary Island took the Sloop in this Interro. mention'd, standing in for Santa Crux in Teneriffe, and came last from Corke, and as the Master thereof said to this Depon't was bound to Madera,[11] but then going into one of the Canary Islands to get water, whereupon this Depon't sent his then Lieuten't on board, who Inform'd this Depon't that there was one Cask full of Water and another runing out and that he stopt the same and afterwards they found water sufficient to serve them in their Passage to Madera which was ab't three Weeks.
Interro. 2d. What was the Lading of the Sloop Amsterdam Post?
Answer. She was Loaded with Beef, Butter, Hatts, Shoes, Candles, Soap, Hides and some Pilchards, and for greater Certainty this Depon't referrs himself to the Bills of Lading.
Interro. 3. Are the Papers now produced before you and now Lodged in this Court, the Papers that were taken on Board the said Sloop as you know, or have heard, how, and in what manner?
a. This Depon't did not go on board said Sloop when taken and therefore can't say of his own knowledge that these are the Papers taken on board, but verily believes they are, for these Papers were sent to this Depon't by his Lieuten't from said Vessell some short Time after she was taken, and two of the Papers, namely, an English Mediterranean Pass[12] and a Paper in Spanish Importing a Clearance, as this Depon't was Inform'd by his officers whom he sent on board, was found between two Bed Bottoms belonging to the Master of said Sloop, and afterwards this Depon't saw the very place where they sayd the Papers were Concealed.
Interro. 4. Did you hear the sd Master of the Sloop aforesd Declare where he took in his aforesaid Loading?
A. This Depon't at Divers times heard the said Master Acknowledge and Declare that he took in his aforesd Loading at Corke in the Kingdom of Ireland, and also that he went from Teneriffe to Corke, where he purchased sd Loading, and was to return with the same immediately to Teneriffe, where two of his owners were Inhabitants and one other owner an Inhabitant of Holland.
Interro. 5. What was done with the Cargo after the Vessell and Cargo was thus taken?
A. All the Cargo with the Vessell was Carried into Madera and all or the greatest part of sd Cargo was Landed there.
Interro. 6. Is the Sloop now under Seizure the same Sloop that was thus taken?
A. Yes.
Interro. 7. What became of the hands belonging to said Sloop?
A. Two of them went on board the Man of War there, and two others went on board this sd Privateer, and the Mate was carried to Gibraltar, where he heard he ran away.
Interro. 8. Do you know or have you heard what Nation those hands were of?
A. The Master, Mate and one hand more he understood to be Scotch, two hands more to be Irish, one Boy belonging to London and a Portugueze or Spanish negro man.
Lastly, Do you know anything further relating to sd Vessell and Cargo or any other former Voyages the said Vessell had made and where to?
A. He heard the Master acknowledge he had been upwards of two years Master of said Vessell, during which Time he always used the Canary Trade, and always acknowledged his Vessell belonged to England till the last Voyage.
John Rous.
1740, August 12th. John Rous, the Subscriber to the aforegoing, made oath to the Truth thereof Before Me.
Rob't Auchmuty, Judge Ad'y.
Captain Rous being Sworn in Court acknowledged his Examination already taken was the Truth. He also Declared there was Water enough on board the Sloop Amsterdam Post to carry her into Madera, and actually served them for that purpose, viz. three of said Sloop's Crew and five belonging to the Privateer, which was one more than was on board at the time of the Capture; That Capt. Mackay was summoned by a Portugueze officer from the Consul[13] at Captn. Dumaresqs request, as Capt. Mackay told him, to go in the Privateer Sloop to Gibraltar in order for a Tryal; that Capt. Mackay told him he sailed from Holland to the Canaries two years as an English Man, and that he never sailed under Dutch Colours till the War with Spain; That Capt. Mackay told him that the Sloop at the time of the Capture belong'd to Mr. Devernet of Amsterdam and his two sons who lived at Teneriffe, who were all Frenchmen. That to his knowledge he never saw any of the Cargo Landed at Madera; that his Lieu't Immediately upon the Capture brought the Papers of the said Vessell to him, who having first perused them Sealed them up; that some short time after the said Mackay exprest to him his Desire, in case a certain Paper was found on board, that it would be useless to this Depon't, and that he would have it Concealed, whereupon this Depon't asked him what the Paper was and where in the Vessell it could be found, but the said Mackay would not inform him, and this desire of the said Mackays he repeated several times, and in about two Days after there was brought to this Depon't by John Teit, who acted as Mate on board the said Prize, two Papers from on Board, viz. an English Mediterranean Pass wherein the said Master and Sloop was named, and a Spanish Clearance as of an English Vessell, which was found as he said as mentioned by this Depon't in his former Examinat'n, and afterwards the said Mackay repeated his Desire in case a certain Paper, not naming it, should be found not to show it to any—Whereupon this Depon't Informed him that he had got what he meant and shew'd him the said Pass and Clearance, and then the said Master again pressed him not to shew the same to the Consul. That upon his arrival at Madera he Delivered the Papers so found and Seal'd up, together with the said Pass and Spanish Clearance, to Capt. Dumaresq in the Consul's House, that Capt. Dumaresq then delivered them to the Consul, who broke open the Seal and perused the Papers together with Capt. Dumaresq; and that he verily believes the Papers now in Court are all the Papers he so delivered up, excepting the said Pass.
The Court was then adjourn'd to the 21st of Aug't Curr't at 7 a Clock a.m., at which time it was opened, when Michael Dumaresq being first Sworn Declar'd that his Examination already taken was the Truth. He further Declared that when Capt. Dumaresq arrived at Gibraltar he heard him say he wou'd go to the Govern'r,[14] to the Admiral,[15] and to the Judge of the Admiralty, that accordingly he saw the Captain go to Sir Chaloner Ogle, who was the Admiral, and to the Governour; that he heard Capt. Dumaresq Say the Admiral told him he believ'd the Vessell would be condemn'd; and that the Person called the Judge of Admiralty at Gibraltar, upon Capt. Dumaresq application to him for a Tryal, told him he had no Commission or Instructions to Try any Capture but expected the same from England every Day; That upon the arrival of the Sloop Amsterdam Post at Madera there was an officer put on board her from the Provedore[16] and Judge of the Poor, that he remain'd on Board till other officers came on Board and unladed the Vessell and that Capt. Dumaresq paid the officer two Bitts[17] a Day and his Victuals during his Stay on Board.
Abraham Martin, being Sworn in Court, Declared that his Examination already taken was true. The Court was then adjourn'd to Saterday the 23d Curr't at half an hour past 2 a Clock p.m., at which time it was open'd and several Papers were produc'd and Read in Court, which are as follows, viz.
[1] Records of the admiralty court, Boston, Suffolk County Court-house, vol. V.; see doc. no. 126, note 1. It is to be understood that the libel, and the other documents which follow, nos. 129-143, are to be found imbedded in the record of the case in the volume named, not separate. The case is interesting as showing some of the deceptions which might be, and often were, resorted to in time of war. War existed between Great Britain and Spain; the Dutch were neutrals. Briefly, the Amsterdam Post was provided with two sets of papers, one Spanish, to be used in case she were overhauled by a Spanish war-vessel or privateer, one Dutch, to be used in case she fell into British hands. Robert Auchmuty was judge of the admiralty court in Boston from 1733 to 1747.
129. Sea-letter of the Amsterdam Post. September 22, 1739 (N.S.).
To all Potent Kings, Queens, Princes, Princesses, Dukes, Lords, etc., who may see this open Letter or may hear it Read, We Magistrates and Rulers of the City of Amsterdam Declare that Æneas Mackay of Amsterdam appeared before us and on Oath Solemnly Declares, That the Vessell named the Amsterdam Post, burthen about Twenty Lasts,[1] of which he is Master, belongs to a House in this Province, and that no Foreign Enemy has any part in her Directly or Indirectly, as he hopes to answer it to Almighty God, and as We are Desirous that the aforementioned Master should follow his Lawfull Calling, it is our Desire of all whom it may concern that the aforementioned Capt'n with his Sloop and Lading may be well received and treated handsomely, and have Liberty to proceed to and from any Port he may chuse, in a Lawful Trade, Which We desire and are willing he should do, and have caused this City Seal to be hereunto affixt. this Done the 22d of Sept'r, Ao. 1739.
P. De la Court.
By the Lords of the Admiralty No. 5649.
Hartunck.[2]
The required Oath is taken in the Passport Sept. 23d 1739.
130. Let-pass of the Amsterdam Post. September 23, 1739 (N.S.).
Lett Pass the Sloop Amsterdam Post, Æneas Mackay Master, with his Passengers, Goods and Merchandizes, without Lett, Hindrance, Searching or Molestation, it appearing to us by good Witnesses that the said Sloop belongs to One under the State of the Netherlands. Given under our Hand and Seal at the Admiralty in Amsterdam this Twenty third Day of Septemb'r In the Year of Our Lord one thousand seven hundred and thirty nine.
P. Fecleloot.[?]
To all Persons whom this may Concern.
Per order of the Lords of the Admiralty.
A. Backer Jan'ry.
131. Tonnage Certificate of the Amsterdam Post. September 24, 1739 (N.S.).
We, underwritten, ordered by the Lords of the Admiralty of Amsterdam to Tax and Visit the Vessells that go to Sea from Texell,[1] Declare by this That Æneas Mackay of Amsterdam, Master of the Sloop Amsterdam Post, has given us the length of his Sloop, being within Board 50½ feet, Breadth 15¾, feet in the Hold 8 feet, and twelve years old, and We Tax her to be Twenty Lasts. Visited her in Amsterdam, Septemb'r the 24th, 1739.
Pieter Kanseboom.
The Last Money[2] paid April 13th 1739.
P. Henkes.Wm. Camper.
132. Aeneas Mackay’s Oath as a Burgher of Amsterdam. September 16, 1739 (N.S.).
You do swear that you will be a good and faithfull Porter[1] of this City and will be obedient to such Rulers, as shall from time to time be appointed, in this Place, in watching and discovering all attempts that may be made against the Rulers or People of this Place, and that you will at all Times Exert yourself in the defence of this City, and do all that becomes a good and honest Porter in Discovering any Designs. So Help you God.
Æneas Mackay of London, Captain, has taken the above Oath and the Lords Thesaurieren[2] have received the Porter money. Dated in Amsterdam, Sept'r 16, 1739.
Joan Thierry.[3]
133. Lease to Aeneas Mackay. October 2, 1739 (N.S.).
On the Second of Octob'r 1739 Thomas Hall Lett a Chamber to Capt. Æneas Mackay, whom also acknowledged to have hired the same, in his House at the Sign of the Bible in New Bridge Street,[1] For one year certain, and went into the same the third Instant, at Fifty Gilders to be paid every year, and in case no one appears in Octo. 1740 then We agree that it shall be in the Power of the Letter,[2] to lett the same to any other Person, and they may View the same. We have each bound ourselves according to the Custom of this Place. In Testimony of the Truth We have each bound ourselves to Each other in those Bonds.
Dated as above 1739.
Thos. Hall.
134. Certificates of Master and Mate and Register. October 8, 1739 (N.S.).
We the underwritten, Master and Mate, Designing by God's help to proceed on a Voyage to the Canaries per the Amsterdam Post, attest and here Declare That We have no other Goods in our Sloop, nor any Wares or Merchandize whatsoever, according to the best of our knowledge, than only such as appears by the Manifest which We have Delivered to this office to be Inspected into, and that according to our knowledge there has been no fraud committed, nor any of our Goods were taken in, till first the Lawfull Dutys were paid, and We further Declare that the Goods We have now given an acco't of is a true and Just acco't, and that we will not receive any more on Board, unless the Persons bring their Passport from this office[1] that they have paid the Dutys, to which have hereunto Signed our Hands October 8th, 1739.
Æneas Mackay.
George Janse.
We the underwritten, Commissioners of the Registers office, Attest and declare that We have Visited the Sloop of Æneas Mackay and the Goods Laden on Board her, and find that the Goods all agree with the Manifest they gave in of the same, and We do acquit the above written Capt'n and Mate, by Declaring the acco't they have given in and which they have signed to be true and Just. Done at Texell the Date and Year above.
J. Tuning.
Mr. John Wendell, Jun'r,[2] who Translated the several Dutch Papers in the Case, made oath that he had Translated the same according to his best skill and Judgement.
135. Extract from Capt. Mackay’s Journal.[1] November 14, 1739.
At two yesterday afternoon We see Cape Clear and the fastnie[2] bearing of us n.e. about two Leagues, at 4 Do. it bore of us N.E.B.E.[3] about 5 Leagues. Tacked and stood to the Eastward. We lay up S.E.B.E. till 8 in the Evening, from 8 to 12 m.n. E.S.E. We had a very hard Gale at S. with a very great Sea. at half an hour past three this morning a sea broke over us and carry'd away our Boom and Mainsail. We layed the Helm to Lee and kept to w't the Jib but the Gale increasing We Try'd Hull to. at 5 in the morning the Breakers seemed close under our Lee and ahead. We hoisted the Jib to try if possible to clear the Danger, but our Endeavours were fruitless, the Jib gave way so that We had no Sail left but the Fore Sail, and nothing appeared in our View but Unavoidable Death. We had the Breakers on each side and an Opening seemed to be ahead. We bore up for it and drop't an anchor, which did not hold, the Rocks and Breakers being all round us and the Night excessive Dark added Dread to the Terrours of Death, But the Mercifull God opened a Door of Safety for us when We were in the utmost Distress, for as We were going Right in among the Rocks We see a small opening on the Larboard hand. We hoisted the Fore Sail and Cut the Cable and Looft[4] into the Opening and were Immediately aground in a very smooth sandy Cove. at seven in the Morning when it cleared for Day We see some People on the Shore. We got the Boat out and brought two of them on Board. They directed Me to Apply to one Col. Townsend of Castle Haven,[5] which is four Miles from Finis Cove,[6] the Place where We are on Shore, etc.
136. Protest of Capt. Mackay. November 15, 1739.
To all Christian People unto whom this Publick Instrum't of Protest doth come or may Concern, Be it known and Manifest that this Day there came and Personally appeared before me, Thomas Lucas, Gent'm, Notary and Tabellion Publick in and throughout the Kingdom of Ireland by Regal Authority, Lawfully Admitted and sworn at Skibbereen[1] in the County of Cork and Kingdom aforesd, George Johnston, Mate, Joseph Hall, Boatswain, William Cromie, Mariner, belonging to the good Ship or Vessell called the Amsterdam Post, burthen Forty Tuns, whereof Æneas Mackay is Master, and Voluntary made oath on the Holy Evangelist That on the Twenty eighth Day of Octo. last they sailed with said Vessell from the Canaries bound to Corke, and met with very bad Weather on their Voyage; that on Thursday the Fifteenth of this Inst. Novemb'r,[2] ab't three of the Clock in the Morning, the Weather being very desperate, they lost their Main Boom and anchor and one third of a Cable of[f] the Stage of Castle Haven, and all the Sails much Damaged; and that about five of the Clock in the morning the Vessell was stranded at Finins Cove near Castle Haven Harbour, where the Vessell now lyes; that by the Violence of the Weather they have reason to Suspect they have Received great Damage. Wherefore the Notary, at the Special Instance and Request of Æneas Mackay, Master, George Johnston, Mate, Joseph Hall, Boatswain, and Wm. Cromie, Mariner, have Protested, as by these Presents I Do Protest against the Seas and Winds for all Losses, Damages, Prejudices or hindrances whatsoever known or as yet unknown which the Ship or Vessell, or the Owners, Freighters or Insurers, or any other Person or Persons has Sustain'd or Received or hereafter may Sustain or receive. In Testimony of which I the Notary aforesaid have hereunto sett my Hand and Seal of Office this Fifteenth Day of November One thousand seven hundred and Thirty nine.
Æneas Mackay.
George Johnston.
Joseph Hall.
William Cromie. | Thos. Lucas,
Notar. Public. |
137. Extract from Capt. Mackay’s Journal. November 16, 1739.[1]
From Yesterday at 6 in the Evening to this Morning at 8 a Clock I have been in continual Dread by reason of some Shabby Gent'n who staid on Board at Night and frequently seem'd to hint Concerning Money, of which I had indeed a large quantity but pleaded Poverty to them, but to my great Surprize at One in the Morning I found my own People Deserting of Me and had already sent one Chest on Shore, thereupon I immediately threatnd to Kill the first that would attempt to leave Me in that Distress. Fear kept them Aboard.
138. Certificate of Clearance. December 4, 1739.
Port Cork,
Know Ye, That Will'm Winthrop[1] enter'd on the Amsterdam Post of Amsterdam, Æneas Mackay Master, for Madera, Sixty Bar'ls Beef,[2] One hundred and ten F'kins cont[aining] Fifty seven hundred wt Butter, Seventy Boxes cont[aining] Thirty five hundred wt Candles, One hundred eighty Tann'd Hides and Forty Ters[3] Pilchers. Custom paid. Witness our Hands and Seals of Office the 4th of Decemb'r 1739.
Rich'd Fenton,
Coll.
Will. Dobbin,
Dep'y [Cudr?] and Coll'r.
Endorsed 1739 Xbr[4] 7th Exam'd per Ben Roberts, Ld. Wt.,[5]
Cove Dec'r 11, 1739 Exam'd per Rich'd Toler, [Scr.][6]
139. Declarations of Sailors. 1740.
I Do Declare that I am a Servant to the Captain of the Sloop Amsterdam and has been about Twenty Months, and in the Mean time has been four Voyages betwixt Canaries and Amsterdam, and the last Voyage We went to Cork and from thence I always thought We was going to Teneriffe, hearing all our Men Say the was Shipped for that Place, and am willing to give my oath if occasion. As Witness my Hand
William Younger.
I Do Declare that I was Shipped in the City of Corke by Capt. Aeneas Mackay in the Sloop Amsterdam Packett, bound to Teneriffe and from thence if the Captain thought proper to Cork and Amsterdam, and to receive Thirty three shillings per month Irish Money, which I will give my oath if occasion, which I have here sett my Hand.
his
Darby signature mark She.
mark
I Do declare that I was Shipt by Capt. Æneas Mackay in the Sloop Amsterdam to the Island of Teneriffe and to receive fourteen Gilders per month. We proceed[ed] our Voyage, but before We Sailed from thence he told us he was bound to Cork, which I consented to go with him, and at our Departure from Corke he told us he was bound again to Teneriffe, St. Cruize, where We came from, which if occasion I will give my Oath and has sett my Hand.
his mark
John X Gording.
140. Certificate of British Consul in Madeira. March 9, 1740 (N.S.)[1]
These are to Certify all whom it may Concern that upon the arrival of the Sloop Amsterdam Post at this Island the Judge of the Poor applyed to Capt. Philip Dumaresq to have her Unloaded, there being no Salt Beef in the Place at that Time for Sale, to which the said Dumaresq answer'd that he could not consent to it till it was first Condemn'd by some English Admiral as good Prize, upon which the said Judge Applyed to the officers of the Chamber at their respective Houses and came back and told him that he should be obliged to it whether he wou'd or no, for that the Island was in great want thereof, and that he would give him a Certificate that they forced him to it, but to this day the said Dumaresq has not been able to obtain it, notwithstanding the said Judge has in my hearing several Times promised to give it to him.
As Witness my Hand in Funchal, Island of Madera, 9th March 1740.
Richard Baker, Consul.
141. Receipt for Mediterranean Pass. May 29, 1740 (N.S.).
Receiv'd from Capt. Philip Dumaresq Command[er] of the Private Man of War Sloop Young Eagle, a Mediterranean Pass No. 2533,[1] Granted by the Hono'ble the Commissioners of the Admiralty of Great Britain the Eleventh Day of July, One thousand seven hundred and thirty eight, to Æneas Mackay, then Master of the Sloop Amsterdam Post, now taken as Prize by the abovesd Capt. Ph. Dumaresq. In Witness hereof I have Signed two Receipts, both of this tenour and Date, in the Island of Madera, the 29th May, 1740.
Richard Baker, Consul.
The Claimant in Court acknowledged the Certificate signed by the Consul touching the Delivery of the English Mediterranean Pass to him by Capt. Dumaresq to be the proper hand writing of Richard Baker, Esq., Consul at Madera, as also the Certificate of the Judge of the Poor's obliging Capt. Dumaresq to Unload.
142. Certificate of British-Dutch Vice-Consul in Teneriffe. April 26, 1740 (N.S.).
I Certify and avouch to all Gent. whom these Present may concern, That Don Peter Dufourd, Vice-Consul General for the French and Britannick Nations,[1] Appeared before Me, as also Don John Delake, John Whitefield and Don Issario Antonio Samer, Merch'ts residing in this Port, who say that the Sloop called the Amsterdam Packett, whereof Capt. Aeneas Mackay is Commander, has usually come to this Port; and that the said Sloop arrived here under Dutch [Colours] the 27 of October the year last past, 1739, and that the said Sloop sailed again for Amsterdam, consigned to the Divernetts, and that the said Sloop wore Dutch Colours, during the time she lay at anchor in this Road, and that said Sloop Sailed and Returned on her Voyage out of this Port under Dutch Colours; and that the said Æneas Mackay brought with him his Dutch Clearance and Passport, and that he the said Mackay is a Resident and Dweller in Amsterdam; and that the Cargo which he had brought and now did bring, did actually belong to Merch'ts in Holland Corresponding with the aforementioned Divernetts herein expressed, and that the aforesaid Don Peter Dufourd, as Vice-Consul General, did pass the Usual Visit of Health in the aforegoing Voyage; and that he[2] brought his Dutch Journal, which was set down in his Book as a Dutchman, and for this purpose he[3] holds his Vice-Consulship as well as being Employed Vice-Consul for the Dutch; and further saith that he the said Dufourd had been in Company with Isaac Divernett in the House of Don Arnold Vansteinfortt,[4] Consul General for the Dutch in these Islands, when the said Æneas Mackay shewed him his Papers, as he was Consul for that Nation, Manifesting his being Naturalized in Amsterdam, and for this reason he brought a Dutch Passport and Wore Dutch Colours; the Truth of which he declares before God, no person being able to say to the contrary, it being a Publick and known Truth, of what has been Declared, Signed by these Presents with the aforesd Vice Consul Gen'l and the afore mentioned Merch'ts of this Port of Santa Crux of Teneriffe, the 26th Day of April 1740. Peter Dufourd, Vice Consul General, John Whitefield, Issario Antonio Samer, John Delake, Joseph Vranes [Vianes][5] of Salas, Publick Scrivener.
Compared with the Original before Me which is in my Power and office, and this I remit as a true Copy, the Day and Year aforementioned. In Testimony of the Truth,
Joseph Vranes of Salas,
Publick Scrivener.
We do Declare and Avouch that Joseph Vranes, who has attested this Copy, is Publick Scrivener, and that full Faith is and ought to be given to all his Instruments of Writing and Dispatches, both here and abroad. Wherefore We have Signed this in Santa Crux of Teneriffe, the 29th of April, 1740.
Joseph Padilla,
Apostollick Notary.
Joseph Antonio Sanches.
Francisco Delgada.
143. Sentence of Admiralty Judge. September 1, 1740.[1]
Capt. Dixon, who Translated the Several Spanish Papers aforewritten, made Oath in Court that he had Translated them according to the best of his Skill and Judgment.
The Court was then Adjourn'd to the 25th Curr't at 8 a Clock A.M., at which Time it was Opened and both Parties fully heard by their advocates, after which the Court was Adjourn'd to the Thirtieth Curr't at 10 a Clock a.m., at which Time the Judge Decreed the Vessell and Cargo a Lawfull Prize, and on the first of September following delivered his Reasons for Adjudication in Open Court, which is as follows, viz.
I have duly Considered the Preparatory Examinations and all the Papers and Writings which were Sworn to be found and taken in and with the Capture (a Mediterranean Pass excepted) and also the Depositions given in Open Court, and likewise with great Deliberation weighed the Arguments of the Advocates, as well on the part of the Captor as on the part of the Claimant, and it appears to Me that the Sloop Libelled against was a British Bottom, Navigated by British Subjects, and that the Master thereof, Æneas Mackay, on the 11th of July, 1738, had Granted to him for said Sloop by the Right Hono'ble the Lords Commissioners for Executing the Office of Lord High Admiral of Great Britain a Mediterranean Pass No. 2533, which was found on board the said Sloop at the Time of the Capture. It also appears to Me that the said Master, on the 16th Septr., 1739, by the Name of Æneas Mackay of London, Captain, took the usual Oath of a Porter of the City of Amsterdam; that on the 22d of said Month the said Master before the Magistrates and Rulers of that City made oath that the Vessell aforesd., of which he was then Master, belonged to a House in that Province and afterwards the said Vessell in Holland as to her Clearing, Passport, Visiting, Taxing, etc., was Treated as a Dutch Bottom; that on the 2d of Octobr. following the said Master hired a Chamber in Amsterdam for one year, But in case no one appeared in October following then it should be in the power of the Lessor to Lett the same to another, and he Enter'd the Day following, and shortly after sailed in said Vessell to Teneriffe, from whence in a few Days he and his hands, British Subjects, and after the Proclamation of War, with Two Passes, viz. the said Mediterranean Pass and a Dutch Pass, sailed to Cork in the Kingdom of Ireland, having a Great quantity of Money, as appears by his Journal; there he purchases a Loading, Chiefly Provisions, Clears out for the Maderas, and accordingly had one Sett of Bills of Lading for that Port, to be delivered to William Callanach or to his assigns, who to Me appears to be a fictitious Person, and one other Sett of Bills of Lading for said Cargo to be Deliverd at the Port of C——[2] unto Divernett Freres, who plainly appeard to me then to be two Merch'ts Settled Inhabit'ts at Teneriffe, one of them since dead, the other there still Inhabiting; that on the 15th of January, 1739, the said Vessell was taken, as set forth in the Libel, with the said Papers and the Books of Acco'ts of the said Master, and by which acco'ts it turns out to my Satisfaction if those two Brothers the Devernets were not solely Owners they were Principally so. It further appears that the reason assigned by the Master, when taken, of being so near Teneriffe and setting in for that Port was for Water, when in Truth it's in Proof they were Letting out their Water Secretly, and after Stopt by the Captors there was Water for one hand more than the Crew belonging to the Sloop for three Weeks, which carried them into Madera, and if the Say of some of the Sailors is to be Credited they were Shipped at Corke for Teneriffe; and all this to Demonstration Shews which of those two Setts of Bills of Lading must be understood to be Real. It also appears in Proof, certifyed under the hand of the British Consul at Madera (whose name thereto subscrib'd is owned by the Claimant to be of his proper handwriting), that the said Cargo was there by force Unloaded, by Means Whereof not brought with the Vessell to this Port, So that in fine here is a British Master endeavouring to Commence Dutchman, a British Vessell with two Passes, British and Dutch, and to be occasionally[3] either a British or Dutch Bottom Navigated by British Subjects in time of War with Spain, Sails from Teneriffe with Money to Cork in Ireland, there purchases a Cargo of Provisions bound directly back to our Enemies, makes a false Clearance as if bound to Madera, has two Setts of Bill of Lading, the One which is Real to Deliver the Cargo at a Port part of the Dominions of a Prince in Enmity with us, and to Persons there Inhabiting who appear to be altogether or Principally owners, Carrying the King's Subjects to Enemies, whereby they by Menaces or Corruption or both may be drawn from their Allegiance, and happily is thus taken, and to have it a Question whether it's a Lawfull Capture or not is somewhat Extraordinary, for my part till I am better Informed from Home I shall never Ballance in Cases so Wickedly Contrived and contrary to the Conduct of plain Trading and Simple Honesty, But in Justice to my King and Country always Condemn, and if this Mackay was in Court, notwithstanding all his Subtlety and Double Dealing and his pretended Naturalization Certifyed from Teneriffe, as in the Case, I should order him in Custody till delivered up to the Government. Therefore on the whole I Adjudge and Condemn the Vessell and Cargo Libelled against as a Lawfull Prize, Entirely to belong to and be Divided between and among the Owners of the Sloop that Seized and Took her as aforesaid, and the several Persons which were on Board the same, in such Shares and Proportions as were agreed on with the Owners aforesd. and the persons thus entituled thereto by virtue of such agreement among themselves. And as to the Objection that the Cargo is not brought in the Vessell, the Manner of it's being forced from the Captor is Certified, and that this Court may notwithstanding proceed to Condemnation is not only the practice of the Court, but so known in the Kings Court, as in the Cases the King v. Broom, Brown and Burton v. Francklyn.[4]
Rob't. Auchmuty, Judge Ad'y.
Examd
per John Payne, D.Reg'r.
[1] Court proceedings here resumed, after insertion of documents in the record.
