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depute for wares prohibited to be transported withowte licence, hathe receyved from the right honorable the Lorde Clinton, Lorde highe Admirall aforesayde, commission to apprehende and take pirattes, and the same withe ther shippes, vessells, and goodes, to bringe into some harboroughe of this realme, there by perfect inventorye to be saffely kept, untill farder ordre from his Lordeshippe or this courte of Thadmiralltie shalbe prescribed therein. For whiche her highnes' service the bovesayde John Hawkyns, as depute of the saide Raffe Lane, ys to furnishe and sett furthe unto the seas one barcke. Yf, therefor, that the master, mariners, and all suche others as shalbe reteyned and serve in the sayde barcke, soe to be sett furthe by the saide John Hawkyns uppon the forsaide chardge and service, doe not transgresse, but observe, accomplishe, performe, and fulfill, the contentes of the sayde Lorde Admirall's commission for the seisinge uppon and takinge of pirattes, ther shippes and goodes, as is before expressed, accordinge to the purporte, effect, and true meaninge thereof, and that the saide master, his mate, mariners, and companye goinge uppon the sayde service, ne anye of them, doe not robb, spoile, molest, ne evill entreate, anye of her Majestie's subjects, nor the subjectes of anye other prince withe whome her highnes ys in league and amitye, That then this recognizaunce to be voyde and of none effect; Or elles to stande in his full force strenght and vertue.

JOHN HAWKYNS.1

In early times the law of the sea was administered by the king in council or in the common law courts. Prize cases and the trial of pirates came before them. In the fourteenth century the admirals held local courts, but in the course of time they proved inefficient and expensive. Toward the end of the fourteenth century common law procedure had also shown itself inadequate for the administration of maritime law. The High Court of Admiralty was established at the beginning of the fifteenth century, but for the first hundred years or more was inactive as a prize tribunal. In later times, however, it became the supreme prize court; vice-admiralty courts were set up in the colonies and

1. Law and Custom of the Sea, 1, 190.

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plantations. In the eighteenth century, colonial governors were given commissions of vice-admiral, in time of war, with authority to hold court and condemn prizes or to appoint vice-admiralty judges for the purpose.

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During the seventeenth century and later, privateering continued prosperously and played an important part in naval warfare. Letters of reprisal were no longer issued to individuals for the redress of private grievances. The decline of French naval power after defeat at La Hogue in 1692 was slow and gradual and the respect of the English and Dutch for the great French admiral, Tourville, caused them to keep their fleets together instead of scattering in pursuit of hostile cruisers preying upon their commerce; and the French took advantage of their opportunity. As their naval ships were laid up in port, their crews, both officers and men, were allowed to take service in private ships. Even ships of the royal navy of France were in some cases loaned to private adventurers and cruised in squadrons. These were the days of privateering on a grand scale, the days of Jean Bart and other great French privateersmen.2

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As time went on and the American colonists grew numbers, they took an increasing interest in privateering. The more enterprising and adventurous American merchants and seamen engaged in this pursuit whenever England was at war with other nations. American newspapers recount the fortunes of these sea-rovers.3

1.

Law and Custom of the Sea, I, Introduction, 12, 81, 124, 254, 359, 360, 408, 470; Jameson, Privateering and Piracy in the Colonial Period, xi-xiii, 187, 275, 285, 312, 318, 355, 517, 519, 524.

2. Mahan, The Influence of Sea Power upon History, 193–196.

3. Privateering and Piracy, 276, 473, 503, 571. The very interesting journal of Captain Norton's sloop Revenge is in Ibid., 380; many other privateering narratives. will be found, mostly in court proceedings, in this volume. Instructions for privateers at different periods are in Law and Custom of the Sea, 1, 197, 218, 236, 252, 410, 502, II (Navy Records Society, L), 403–435; Privateering and Piracy, 347.

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In time of war the colonial governors, along with their judicial functions, were given authority to issue letters of marque or privateer commissions. During the war of 1739 with Spain, such a commission was granted to Captain Benjamin Norton, of Newport. This long document differs little from those of the fifteenth century, in contrast with the much briefer form used a generation later, during our Revolution. It is here quoted in full:

Richard Ward Esq Governour and Commander in Chief in and over his Majesty's Colony of Rhode Island and Providence Plantations in New England.

To all Persons, to whom these Presents shall come, Greeting.

Whereas his most Sacred Majesty George the Second, by the Grace of God of Great Britain, France, and Ireland King, Defender of the Faith, etc., hath been pleased by his Declaration of the nineteenth Day of October, in the year of our Lord One Thousand seven hundred Thirty and nine, for the Reasons therein contained, to declare War against Spain, And has given Orders for the granting Commissions to any of his loving Subjects, or Others that shall be deemed fitly qualified in that Behalf, for the apprehending, seizing and taking the Ships, Vessels and Goods belonging to Spain, or the Vassals and Subjects of the King of Spain, or others inhabiting within any of his Countries, Territories, and Dominions, and such other Ships, Vessels and Goods, as are or shall be liable to Confiscation Pursuant to the respective Treaties between his Majesty and other Princes, States and Potentates, and to bring the same to Judgment in the High Court of Admiralty in England, or such other Court of Admiralty as shall be lawfully authorized for Proceedings and Adjudication, and Condemnation to be thereupon had according to the Course of Admiralty and Laws of Nations.

And Whereas Benjamin Norton, Mariner, and John Freebody, Merchant, both of Newport in the Colony aforesd. have equipped, furnished, and victualled a Sloop called the Revenge of the Burthen of about One hundred and Fifteen Tons, whereof the said Benjamin Norton is Commander, who hath given Bond with sufficient Sureties.

Know Ye therefore That I do by these Presents, grant Commission to, and do license and authorize the said Benjamin Norton

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to set forth in Hostile Manner the said Sloop called the Revenge under his own Command, And therewith by Force of Arms (for the Space of Twelve Months from the Date hereof, If the war shall so long continue) to apprehend, seize and take the Ships, Vessels and Goods belonging to Spain, or the Vassals and Subjects of the King of Spain, or Others inhabiting within any of his Countries, Territories or Dominions, and such other Ships, Vessels and Goods, as are or shall be liable to Confiscation Pursuant to the respective Treaties between his Majesty and other Princes, States and Potentates, and to bring the Same to such Port as shall be most convenient, In order to have them legally adjudged in such Court of Admiralty as shall be lawfully authorized within his Majesty's Dominions, which being condemned, It shall and may be lawful for the said Benjamin Norton to sell and dispose of such Ships, Vessels and Goods so adjudged and condemned in such Sort and Manner as by the Course of Admiralty hath been accustomed (Except in such Cases where it is otherwise directed by his Instructions) Provided always That the said Benjamin Norton keep an exact Journal of his Proceedings, and therein particularly take Notice of all Prizes that shall be taken by Him, the Nature of such Prizes, the Times and Places of their being taken, and the Value of Them as near as He can judge; As also of the Station, Motion and Strength of the Enemy, as well as He or his Mariners can discover or find out by Examination of, or Conference with any Mariners or Passengers in any Ship or Vessel by Him taken, Or by any other Ways or Means whatsoever, touching or concerning the Enemy, or any of their Fleets, Ships, Vessels or Parties, and of what else Material in these Cases that may come to his or their Knowledge, of All which He shall from Time to Time as He shall have an Oportunity, transmit and give an Account unto me (or such Commander of

any of his Majesty's Ships of War as He shall first meet with). And further Provided that Nothing be done by the said Benjamin Norton or any of his Officers, Mariners and Company contrary to the true meaning of the aforesaid Instructions, But that the said Instructions shall be by Them, as far as They or Any of Them are therein concerned, in all Particulars well and duly observed and performed, And I do beseech and request all Kings, Princes, Potentates, Estates and Republicks being his Majesty's Friends and Allies, and All Others to whom it shall appertain to give the said Benjamin Norton all Aid, Assistance and Succour in their Ports, with his said Sloop and Company and Prizes without doing, or suffering to be done to Him any Wrong, Trouble or Hindrance, His Majesty offering to do the like, when by Any of Them thereto

desired, Requesting likewise of All his Majesty's Officers whatsoever to give Him Succour and Assistance as Occasion shall require. Given under my Hand, and the Seal of said Colony, at Newport aforesaid the Second Day of June, Anno Dm. 1741, and in the Fourteenth Year of his said Majesty's Reign.

Sealed with the Seal of said Colony

by Order of His Honour the Governour

JAS. MARTIN, Secry.1

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RICHARD WARD.

The commissioning of privateers by colonial governors removed them to a certain extent from home control and sometimes caused misunderstanding. In 1746 the Lords of the Admiralty wrote:

Your Lordship will please to observe that these complaints [by the Dutch] are not made against any of His Majesty's ships of war, but against privateers in America and the West Indies, over whom we have no influence, they receiving their commission for acting hostilities from the Governors of His Majesty's colonies abroad. And therefore we would humbly propose that in these and the like cases His Majesty would be pleased to send his directions to his said Governors, who alone have power to curb the insolencies of privatiers by calling their sureties to account, by revoking the commissions of such as are refractory, and by the influence of their power with the judges of the Vice Admiralty courts to prevent their proceeding to rash and unjust condemnation. . . .2

Massachusetts seamen took a leading part in the Louisburg Expedition of 1745 and American privateers were active during the Seven Years' War. An agreement drawn up between the captain and crew of the New York private armed brigantine Mars in 1762 reveals something of the sea customs of the time and life aboard a vessel of that sort. One half the proceeds of all prizes and prize goods belonged to the owners, the other half

1. Privateering and Piracy, 378; original, with accompanying documents, in Massachusetts Historical Society collections. A мs. letter telling how the letter of marque Bethel, of Boston, captured a Spanish ship of greatly superior force, in 1748, and a picture of the scene, are in the possession of the Society. The letter has been printed in U. S. Naval Institute Proc., no. 200 (Oct. 1919), 1695.

2. Law and Custom of the Sea, 11, 327.

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