The proceedings in a Court of Admiralty about the ship Cedar and the privateer, after their return from the French fort in Acadie.
At a Court of Admiralty, held in James Fort, Monday, the 13th day of April 1668, before noon.
Present:
Colonel Richard Nicolls, governor,
Colonel Francis Lovelace,
Mr. Thomas Delavall,
Mr. Ralph Westfield,
Mr. Matthias Nicolls, secretary.
Captain Thomas Salter, of Port Royall in Jamaica, by Mr. Rider, attorney for Samuel Mosely, on the behalf of the said Salter, plaintiff.
Wm. Smith, Abraham Kieling, Thoms. Davis, Samuel Smith, Thom. Barnes, John Hayter, and Symon Jones, master and company of ship Cedar, defendants.
Captain Richard Morris, being security for all the defendants' appearance (the master excepted), brings them into Court.
At the first session of the Court, the privateers' petition for a Court of Admiralty was read with the order thereupon, so also was Captain Salter's letter of attorney to Samuell Moseley to prosecute for him in several, and the said Moseley's letter empowering Mr. Rider to prosecute the matter depending.
Mr. Rider puts in allegations from Captain Samuel Moseley, attorney for Captain Salter, against Wm. Smith and company, which were read. After which the articles between Captain Salter and the ship's company made at Port Royall were produced and read in Court, as also the agreement or articles made between Wm. Smith, master, and Abraham Keeling and company at Compechio Bay.
Thomas Barnes excepts against his hand and seal in the articles made with Captain Salter, but his mark is proved by the like which he makes. He likewise objects that everyone set their seals as well as hands and marks, and that there are but 3 seals to the articles produced, and yet 18 names.
The allegation of Samuell Moseley, attorney of Captain Thomas Salter, against Abraham Keeling, read.
Abraham Keeling moves for security of Mr Rider for prosecution of him, which was ordered. Upon which the Court did likewise order that Abraham Keeling and the rest should give in security to stand to the judgement of the Court.
Upon the request of the privateers that they might have 48 hours' time allowed to give in their answer to the allegations exhibited against them, the Court gave them time to Thursday morning next, at ten o'clock.
Captain Richard Morris is admitted security for the same persons. He stood engaged for their appearance before until the next sessions of the Court.
At a Court of Admiralty, held in James Fort, Thursday the 16th day of April 1668, before noon.
Present:
Colonel Richard Nicolls, governor,
Colonel Francis Lovelace,
Mr. Tho. Delavall,
Mr. Ralph Westfield,
and Mr. Matthias Nicolls, secretary.
Captain Tho. Salter, plaintiff.
Wm. Smith, master, and company, defendants.
Upon a motion made to the Court by the defendants, Captain Morris was admitted their attorney to plead for them.
Wm. Smith, master, puts in his answer to Captain Salter's allegations, by himself.
Upon Abraham Keeling's pleading for himself, divers things were objected against him, and the testimonies of several persons upon oath produced in writing against him, viz. Luke Watson, Patrick Hayes and Wm. Merritt's oaths as to his common discourse against the Laws and the Justice of the Government; Philip Johns and Ned Schakleton as to their being threatened to be thrown overboard by him.
The Governor demands satisfaction for the abusive words and scandal of the Government, as also for the combination against Wm. Smith the master.
Captain Morris, on the behalf of the privateers, objects against Mathew Salter's letter of attorney to Moseley and puts upon the proof of it, but a while after submits to the judgment of the Court, who were well satisfied of the validity thereof.
Thomas Davis, Thomas Barnes and John Hayter, who swore at a Court in NRe Jersey that the condition of their articles was under the penalty of two hundred pounds, being demanded how they came to take such a rash oath, the sum mentioned in the said articles being but 100£, they do all declare that they did confidently believe the sum to be 200£ as they had sworn and the rather for that Keeling showed them frequently a paper, which he said was the copy of the articles, wherein the said sum of 200£ was inserted, in which copy it was likewise mentioned that the said sum was to be forfeited if the master should, after they arrived to the first port, refuse to deliver up the articles.
The defendants not having brought their answer into the Court in writing, are ordered to bring it in on Saturday next, at two of the clock, afternoon.
Captain Morris refusing any longer to stand bail for the defendants, Mr. Delavall, upon his own proposal, is admitted bail in his stead.
Abraham Keeling was excepted against by the Governor for his reviling and defaming the Government, so stands committed in the custody of the Sheriff. But upon further consideration, it was ordered that the said Keeling should put in good security to answer only to Captain Salter's allegations at the next Court of Admiralty, which if he cannot or does not procure, then that he remain a prisoner until that time.
At a Court of Admiralty, held in James Fort, the 18th day of April 1668, after noon.
Present:
Colonel Richard Nicolls, governor.
Colonel Francis Lovelace.
Mr. Tho. Delavall.
Mr. Ralph Whitfield.
Mr. Matthias Nicolls, secretary.
A petition was presented to the Court from 5 of the privateers, acknowledging their errors, and casting the sole fault and blame of their acting and miscarriages upon Keeling, and who was their sole instigator and director, and humbly throwing themselves together with their whole case upon the clemency of the Court.
The said 5 persons being required by the Court to take their oaths to what they should say, they were sworn. Whereupon they declare and acknowledge their petition brought into Court to be their joint act.
Then being demanded by the Court, how Keeling came to be of their company, they acknowledged that three of them went from Wm. Smith, their master, to treat with Keeling and Throgmorton to go along with them, they being in want of provision and hands, and did propose equal shares to them of what loading they had if they would supply them, ton which they consented, came aboard, where the articles were afterwards made.
The privateers' answer to the allegations of Captain Salter in their petition to be taken into consideration by the Court.
The allegations against Abraham Keeling. Called upon for answer, he insists upon the agreement made with the company for an equal share with the rest and gives that in for his answer.
The 5 privateers are dismissed till Monday when they shall hear the determination of the Court.
Abraham Keeling is committed back to the custody of the Sheriff till further order.
The sentence and determination of the Court.
At a Court of Admiralty held in Fort James, the 13th, 16th and 18 days of April 1668.
Upon a full hearing of the difference between Samuell Moseley, of Boston, mariner, as attorney or procurator of Captain Thomas Salter, of Port Royall in Jamaica, plaintiff, and Wm. Smith, Abraham Keeling, Thomas Davis, Samuell Smith, Thomas Barnes, John Hayter and Symon Jones, master and company heretofore belonging to the ship Cedar, defendants.
We find by the several examinations of the defendants, taken at this first coming into this port, and by what has been here declared in Court, that the defendants Wm. Smith, master, and Abraham Keeling, mariner, who had signed no articles to Captain Salter, as also Thomas Davis, Samuell Smith, Thomas Barnes, John Hayter and Symon Hones, who had signed articles and conditions to and with Captain Salter, were not in any capacity to return to Jamaica, according to their articles and conditions, but were really forced to this port by contrary winds, want of provisions, sails and rigging, and afterwards, necessitated for their relief and subsistence to make sale of the Compachio-wood, which was brought into this port by him, and is now in question.
It appears likewise to this Court by the said articles made by the defendants, or part of them, with Captain Salter (which are the sole strength of his plea) that the said defendants were to have a proportion or share of whatsoever Campechio-wood should be taken in that voyage, and that Captain Salter returned to Port Royall in the Saint George, laden with Compechio-wood.
This Court does therefore, hereupon, judge and order that the said Compechio-wood, now in controversy, or question, here as aforesaid, or the product thereof, does and shall remain to the defendants' proper use, as the just proportion or share of all that was taken in the said voyage from Port Royall aforementioned, the sale whereof by Willm. Smith, master, and the whole company is allowed by this Court, they having acknowledged before the Court to have received satisfaction and payment for the same. They do also order that the Indian brought in hither by the defendants as part of the prize, shall be sold to defray the charges arisen on both sides upon that occasion.
But the ship Cedar, now under arrest at the suite of Captain Salter, shall remain for the use of the said Captain Salter, which the remainder of all such tackle, apparel, canon, or ammunition as belonged to the said vessel when she came first into this port, the just debts of the said ship being first deduced and paid, and all former pacts, contracts, articles, or agreements at any time made touching or concerning the disposal of the said ship Cedar, by or between the said defendants, or any of them, either by sea or land, are by this Court adjudged or declared void and of no effect to all intents and purposes whatsoever.
By order of the Governor and Council.
Matthias Nicolls, secretary.
The privateers' petition to the Right Honorable Colonel Richard Nicolls, governor under his Royal Highness the Duke of Yorke, of all his Territories in America.
The humble petition of Abraham Keeling, Thomas Barnes, Thomas Davis, Symon Jones, Samuell Smith and John Hayter.
Humbly shows that your poor petitioners have since they came into this port run through many difficulties, both before and since they attended Your Honor's commission, but now are almost driven to despair by reason of the great troubles that unexpectedly are fallen upon them.
Your petitioners being, every one of them, in the first place under arrest at the suite of Mr. Delavall in an action of debt.
In the next, their vessel which they brought in hither with them, together with her furniture, attached at the suite of Captain Salter, and at last, they are all arrested at the said Salter's suite.
As to the first, your petitioners are both ready and willing to answer and make satisfaction as far as in them but for what is then are to pay.
For the other two, your petitioners being in a very mean and low condition, and having many and great enemies, do humbly implore Your Honor's relief in particular that Your Honor will be please to order a special Court of Admiralty according to the customs of the government, wherein Your Honor will please to be present with some persons that are knowledged in the laws and customs of the sea, and of such affairs to heart and determine said matters in difference between the plaintiff and your petitioners, the defendants, to whose wise determination they will readily submit.
And as in duty bound, shall pray, etc.
The order upon the petition.
Whereas the petitioners stand arrested at the suite of Captain Salter to make their defense before the Court of Mayor and Aldermen in this City, and that the matter un difference relates to the laws of a Court of Admiralty, the Mayors and Aldermen are by their presents required to suspend any proceedings in the case, as either to hearing or determining the matter in controversy, only that the parties arrested shall give security to the Court for their appearance before a Court of Admiralty to answer the suite of Captain Salter when such a Court shall be called, not exceeding six weeks after the date hereof.
Given under my hand, this 2d of March 1667, stilo novo, in Fort James.
R. Nicolls.
Another petition of the privateers to the Right Honorable Colonel Richard Nicolls, Colonel Francis Lovelace, and the rest of his Honorable Court of Admiralty.
The humble petition of Thomas Davis, Thomas Barnes, John Heytor, Samuell Smith, and Symon Jones.
In all humility show unto Your Honor:
That whereas it was ordered by this Honorable Court that your petitioners should answer the allegations against us in writing the next sitting of this Court, your poor petitioners do crave pardon of the Court for not obeying the order by reason we are not at all knowing in such matters and that Keeling should plead for us, we are in duty bound to pray for Your Honor's and the Court's clemency in judging right that what was acted in the other colony was by the instigation and false oath of Keeling to us in so often affirming that what he showed us was the same we had signed to, which was the occasion of our great fault and mistake in swearing so positive as we did, not out of any ill will that we bore to our master Wm. Smith, but solely and wholly persuaded thereunto by the said Keeling upon several fain and large expressions he made to us, urging that if we did not do it, we should be all ruined, and upon these reasons, we cannot make choice of him to plead our case, but with all humble submission throw ourselves upon the mercy of this Honorable Court, confessing ourselves to be guilty of what this Court has alleged to us.
Therefore your poor petitioners do most humbly pray Your Honor to take it unto your consideration, the sad and deplorable condition of your petitioners that they may be discharge from the arrest of Salter for his pretense to the Compechio-wood that was brought in by us, it being sold for our subsistence, and with submission, we do conceive we have no had more than our just shares, but rather loss, if we had gone to Jamaica to make our dividend, and for what your petitioners do justly stand indebted to Captain Delavall may be deducted out of the apparel and furniture that the Honorable Colonel Nicolls did furnish us withal and out of his great goodness, did afterwards give to us of the ship's company, and as to the ship Cedar, as she was brought when we brought her in, as also the Indian man, we do jointly and severally refer it to the judgement of this Honorable Court to determine whether it does belong to Captain Salter or your petitioners, they earnestly requesting of Your Honor that they may be freed from those multitude of troubles that, through the false delusions of Keeling, they are now insnared and entangled in.
And as in duty bound, they shall ever pray, etc.
Samuell Smith.
Jno. Hayton.
Tho. Davis.
Thos. Barnes.
Symons Jones.
Received in Court the 18th day of April 1668, Fort James.
Captain Salter, letter of attorney to Samuell Moseley.
Know all men by these presents that I, Thomas Salter, of Port Royal, in the island of Jamaica, mariner, have made, ordained, constituted and appointed, and by these presents, do make, ordain, constitute and appoint my trusty and well beloved friend Samuel Moseley, mariner, to be my true and lawful attorney for me and in my name to ask, demand, levy, require, recover, and received of all and every person or persons whatsoever in New England, all and every such debt and debts, sum and sums of money, goods, wares or merchandises which now are or hereafter shall be due and owing to me, the said Thomas Salter, by any manner of ways or means whatsoever, and upon the receipt of any such debts or sums of money as aforesaid, acquittances or other discharges for me and in my name to make, seal and deliver, the said Thomas Salter giving and granting to my said attorney my whole power, strength and authority in and about the premises as if myself were personally present.
In witness whereof I have hereto set my hand and seal the 16th day of September in the year of our Lord 1667.
Thomas Salter.
Sealed and delivered in the presence of:
Benjamin Bale.
Joseph Holdsworth.
Boston, the 31th of october 1667, personally appeared Benjamyn Bale and Joseph Holdsworth, and made oath that they set their hands as witnesses to this instrument, and that see the same signed, sealed and delivered by Tho. Salter upon the day of the date thereof.
Taken upon oath before, John Leverett.
Mr. Moseley's letter to empower Mr. Rider.
Boston, the primo December 1667.
Sir,
As I am unacquainted, I most kindly salute you. Being informed by my good friend Captain Thomas Breeding that you are related to the Law, have taken the boldness to acquaint you of a business that was committed to my care by Captain Thomas Salter, of Jamaica, commander of a private man-of-war, who it seems took a Spanish vessel, laden with Compechio-wood, and made one Wm. Smith master of her with orders to bring the said prize to Jamaica, but contrary to his orders has brought the said prize and her loading into to your port as I am certainly informed.
By the enclosed, you will see what power the said Salter has given me, thinking she might have been in these parts, which power with the seamen's engagement inclosed, I send you, and by this, do give you full power to sue the said Smith and company in case they have disposed of any of her loading and to arrest the said vessel and take her into your possession for the use of the aforesaid Salter. And if this my letter of attorney shall not be thought sufficient that they give good security to stand to what the Law shall give, and upon convenient notice, I shall come myself, I being not willing to take such a journey this Winter. What you should disburse Captain Needham shall pay you, and you will obliged,
Samuell Moseley.
The ship master's and company's agreement.
Articles of Agreement made and concluded by and betwixt Willm. Smith, commander of the good ship William, now in the Bay of Compechio, of the one part, and Freegift Ffrogmorton, Thomas Barnes, Symon Jones, Samuell Smith, Thomas Davis, John Hayton and Abraham Keelinge, of the other part.
Imprimis, it is agreed and concluded by and betwixt the said Willm. Smith and the aforesaid company that each person as aforesaid shall have, hold, keep and possess, each man, his proportionable part or share to have and to hold for one year and a day according to the Law of Alleron, of the good ship called The William as aforesaid, and the aforesaid Willm. Smith, commander of the aforesaid ship or vessel, is to receive, keep and hold and possess according to the law of allowance each parts or shares of the aforesaid ship or vessel.
It is further agreed upon by the aforesaid commander and company that each particular person shall receive his equal proportionable part or share of all such Compechia-wood that is now in her, only the aforesaid Wm. Smith, commander, is to receive two shares at the port of delivery.
It is further concluded on that the said commander and company shall not make sale of their parts or shares of the aforesaid ship or vessel William, expect it be to one of the same company now belonged to her.
It is further agreed upon that, if any one of the said company shall leave the aforesaid shallop or vessels without consent of the major part of the said company at his next port of delivery, shall leave his share or part to the rest of the said company.
It is agreed on what prize or prizes shall be hereafter taken by the aforesaid ship or company shall be equally shared, giving the master two shares.
The second articles of agreement.
Know all men by these presents that we the under-named persons do bind ourselves several and jointly in the penal sum of one hundred pounds sterling each unto the other for the true performance of the within mentioned articles, each unto the others in this our new intended voyage in the good ship or vessel The William, and upon the performance of the said articles, then this obligation to be void otherwise to be in full force and virtue to be sued in any Court or Courts under the King of England's command, or any Court or Courts where the English have commerce or trade.
And for the true performance of the same, we have hereunto set our hands and seals, this 13th day of May in the 14th year of the reign of our Sovereign Lord King Charles the Second, and in the year of our Lord God 1667.
It is agreed before the signing and sealing that the two shares of the vessel to the master is void, being in the 1st article, and he is but 1 share, but is not to be dispossessed as master of the vessel without he will himself, so for the present there is but eight shares in the vessel.
Wm. Smith.
Symon Jones.
Jno. Hayton.
Free. Ffrogmorton
Sam. Smith.
Abrhm. Keeling.
Tho. Barnes.
Tho. Davis.
