Privateering and Piracy in the Colonial Period Part 45

I being apprized of this their Proceeding that since the Cargo was Condemned, and the Sale thereof appointed by the Court of Admiralty which issued upon Informacions laid by the Collector and Surveyor of his Majesty's Plantation Duties, who had the Sugars and Cocoa in their Custody, and produced the Negroes before me in Court, There was an Order past by the Governor and Council or a.s.sistants at Rhode Island directed to the Sheriffe, who of before had been one of these who put an Estimate upon the Negroes by appointment of the Judge of Admiralty, and to whom the Judge had Committed the Custody of the Negroes in Court, Discharging him to deliver them up to the Judges Orders. I went to Rhode Island, (though I had a Deputy there) and waited on the Governor, and shewed to him my _Commission under the Great Seal of Admiralty_, which also was Recorded in their Books, and insisted with him on this, That I am uncontrovertedly by my Commission the Competent Judge in these Parts upon the Contravention of the Acts of Trade, And moreover, That by my Commission I am obliged to enquire after and secure the Goods of all Pirates, etc., The words of my Commission being _ad inquirendum et investigandum de omnibus et singulis bonis Piratarum_, etc.[11] And as I was authorize[d] for that Effect, so I conceived that the Governor and his a.s.sistants, their business was only to be aiding and a.s.sisting to me in the Execution which I expected. And therefore Demanded of him, That according to my Order in Court, the Negroes might be produced as formerly by the Sheriffe in Court in Order to Sale. And that the Publick Court House, and House where Vendues are usually made, may be made Patent to me as heretofore, And that the Governor's Order for Shutting up thereof and denying Access to me may be recalled. At the same time I also informed him that I was accountable to the Lords of Admiralty or Vice Admiralty for the Values and Produce of the Sales made by my Decrees. During this Conference a Quorum of his a.s.sistants in Council came in, before whom I again resumed my desire, To which I received this Answer, That the Governor _considers himself as Vice Admiral_ and that as such he hath right _to intromett_ with All Goods belonging to Pirates, and that _by the Charter all such is given to them_, and that he would not allow me the Priviledge of the Court House, unless I would comply with and acquiesse in their Acts of Council. To which I replyed, _Their Charter contains no such Grant of Admiralty jurisdiction nor right to any Piratical_ Goods (as will be evident on perusal thereof), Yea _in the Year 1703/4 the Queen Discharged them from exercising any part of Admiralty jurisdiction, which was complyed with ever since and the Court const.i.tute by the Kings Commission_.[12] And as to submitting to their Acts of Council when derogatory to His Majestys Interest and the Authority of his Court of Admiralty (which I conceive their Act of which I complain is) was what I could not comply with, without rendering my self unworthy of the Trust committed to me and betraying thereof. Notwithstanding of all which they persisted in their Resolution, and not only Debarred me from the Use of the Court House but also to deliver up the Negroes, etc., to be sold, as I had ordered, and afterward sold them amongst themselves at an undervalue: By which their Contempt of his Majesty's Authority and Court of Admiralty is obvious, Yea, their _incroaching upon and usurping of the Admiralty Jurisdiction contrary to Queen Ann's express Order_ abovementioned is Palpable, And their refusing to give that aid and a.s.sistance which the Judge did justly require of them in the terms of his Commission appear to be highly punishable, if not a just ground for forfeiture of their Charter, more especially being conjoyned with this of a great many of that Colony, their keeping a continued Correspondence with the Pirates, which renders the fair Traders very uneasy, and insecure. All which I humbly submit to their Lordships Consideration, and pray for redress, suitable encouragement, and support to him, who is

Sir

Your most humble Servant

J. MENZEIS.

BOSTON 20th July 1721.

[Footnote 11: A commission of a vice-admiralty judge (Richard Morris, New York, 1762) may be seen in English translation in E.C. Benedict, _The American Admiralty_, fourth ed. (Albany, 1910), pp. 76-80, and others in doc. no. 180, _post_, and doc. no. 181.]

[Footnote 12: See doc. no. 105, note 1.]

CASES OF JOHN ROSE ARCHER AND OTHERS.

_119. Trial of John Fillmore and Edward Cheesman. May 12, 1724._[1]

[Footnote 1: This and the ensuing doc.u.ments, nos. 119-122, are taken from the Ma.s.sachusetts Archives, vol. 63, pp. 341-360, with some omissions of repet.i.tious matter. Judge Sewall notes in his diary, May 1, 1724, "After Lecture I heard the good News of Andrew Harradine and others rising up and subjugating Phillips the Pirat". _Ma.s.s. Hist.

Soc. Coll._, XLVII. 335, where extracts telling the story are transcribed from the _Boston News-Letter_ of Apr. 16, May 7, and May 21. Cheesman threw John Nutt, the master of the pirate ship, overboard; "Harradine struck down [John] Phillips the Captain with an Adds, and another man struck Burrell the Boatswain with a Broad Ax; and the rest fell upon James [or Joseph] Sparks the Gunner, and having in a few Minutes dispatched the said Four Officers, the rest of the Pirates immediately surrendered themselves Prisoners". The result of the trials here recorded was that William White and John Rose Archer the quartermaster were condemned to die, William Phillips (not the pirate captain), and William Taylor were reprieved and later pardoned, the others were acquitted. _Acts and Resolves of Ma.s.s. Bay_, X. 627, see also X. 437. A vivid account of the whole affair is given in the second edition of Johnson, _General History of the Pyrates_, pp.

396-410; another, in _A Narration of the Captivity of John Fillmore, and his Escape from the Pirates_ (Johnstown, N.Y., 1806).]

At a Court of Admiralty for the Tryal of Pirates held at Boston within His Majesties Province of the Ma.s.sachusetts Bay in New England on the twelfth day of May in the Tenth year of His Majesty's Reign Annoq Domini 1724, Pursuant to His Maj'ties Commission Founded on an Act of Parliament made in the Eleventh and twelfth years of King William the Third Ent.i.tuled An Act for the more Effectual suppression of Piracy,[2] and made perpetual by an Act of the Sixth of King [George].[3]

[Footnote 2: 11 and 12 Will. III. ch. 7.]

[Footnote 3: 6 Geo. I. ch. 19.]

Present. The Honorable William Dummer, Esqr., Lieutenant Governor and Commander in Chief in and over His Maj'ties Province of the Ma.s.sachusetts Bay in New England,[4] President of the Court.

[Footnote 4: Acting governor 1722-1728.]

William Tailer Samuel Sewall } Penn Townsend Edward Bromfield } Esqrs., of the Honorable John Cushing Nathanl. Norden } Council of the Ma.s.sachusetts Thos. Hutchinson Samuel Browne } Bay.

Thomas Fitch Adam Winthrop } Spencer Phipps }

The Hono'ble John Menzeis[5] } Esqrs., Commissioners Appointed Thomas Durell } by His Maj'ties Thomas Lechmere } said Commission.

John Jekyll }

[Footnote 5: Admiralty judge. Capt. Thomas Durell, R.N., was the commander of H.M.S. _Seahorse_. Thomas Lechmere, younger brother of Lord Lechmere, was surveyor general of the customs for the northern district of America; he had married the only daughter of Major-Gen.

Wait Winthrop, and was a defendant in the celebrated case of Winthrop _vs._ Lechmere. John Jekyll was collector of the port of Boston.]

Proclamation was made Commanding silence upon Pain of Imprisonm't whilst the act of Parliament and His Majesties Commission for the Tryal of Pyrates were in Reading.

Then the said Court was Publickly and solemnly opened and Proclaimed and the Honorable William Dummer, Esqr., President, took the Oath directed in said Act, and afterwards Administred the same to the other Commissioners beforenamed.

The Court appointed Joseph Hiller, Gent., Notary Publick for the County of Suffolk within His Majesties sd. Province, Register of the said Court, And Edward Stanbridge, Marshall of the Court of Vice Admiralty, Provost Marshall of the said Court.

Then a Warrant issued out to the Provost Marshall to bring the Bodies of John Filmore[6] and Edward Cheesman[7] into Court, and accordingly they were brought to the Bar.

[Footnote 6: John Fillmore, born in Ipswich, Ma.s.s., in 1702, d. 1777, was great-grandfather of President Millard Fillmore. The _Narration_ mentioned above, in note 1, was drawn up from his oral statements, as remembered by a friend. He was taken out of the sloop _Dolphin_, Haskell, fishing on the Newfoundland banks.]

[Footnote 7: Edward Cheesman, carpenter, was taken out of a ship bound from Virginia to London, Mar. 25, preceding.]

Then the Cryer made Proclamation for all Persons that could Give Evidence for the King against the Prisoners at the Bar to Come into Court and they should be heard.

Then the sd. Prisoners were arraigned upon Articles Exhibited against them for Piracy, Robbery and Felony, The Register reading them in the words following--

Articles of Piracy, Robbery and Felony Exhibited against John Filmore, Marriner, and Edward Cheesman, Ship Carpenter.

You and each of you stand Accused by His Maj'ties Advocate General of Felony, Pyracy and Robbery--

First, For that you the sd John Filmore, together with John Phillips, John Nutt, Samuel Ferne, Joseph Sparkes, William White and divers others, on or about the fifth day of September last past, by force and arm's, in or near a harbour upon Newfoundland upon the high sea (within the Jurisdiction of the Admiralty of Great Britain) Pyratically and Feloniously did surprize, seize and take three fishing vessels belonging to His Majesties good subjects, and then and there within the Jurisdiction aforesd., Feloniously and Pyratically with force as aforesd. did take and Carry away an Indian man named Isaac La.s.sen, and John Parsons, Marriner, one of His Maj'ties good subjects: And afterwards, viz. on or about the Middle of sd. month of September, on the high seas and within the Jurisdiction aforesd., he the sd John Filmore, in the Jurisdiction aforesd., with force as aforesd., Pyratically and Feloniously did surprize seize and take a sc.o.o.ner of the value of Five hundred pounds, ---- Furber Master, belonging to His Majesties good subjects, and out of her then and there, within the Jurisdiction aforesd., Feloniously and Pyratically did seize, take and carry away a quant.i.ty of provision and cloth of the value of Fifty pounds.

Secondly, For that the said John Filmore, in Conjunction as aforesd., on or about the beginning of sd. month of September, near the harbour of St. Peters[8] upon the high seas and within the Jurisdiction aforesd., Piratically and Feloniously did then and there with force, etc., surprize, seize and take three fishing Vessels belonging to His Maj'ties good subjects, and then and there, within the Jurisdiction aforesd., with force as aforesd., Did Feloniously and Pyratically take and Carry away out of the sd. Vessels a quant.i.ty of Provisions of the Value of ---- and Eight of their Men.

[Footnote 8: The French island now called St. Pierre. It will be observed that the first count in the indictment against William White and others, doc. no. 121, presents in a somewhat different, and apparently more correct, order the transactions described in the first two counts of the present indictment.]

Thirdly, For that the sd. John Filmore, in Conjunction as aforesd.

with one John Burrill, one or about the ---- day of ----, upon the high seas and within the Jurisdiction aforesd., with force and arm's did Pyratically and Feloniously surprize and seize and take a French Vessel named ----, and of the Burthen of ---- Tuns,[9] and out of her then and there as aforesd. did Piratically and Feloniously take and Carry away Thirteen Pypes of Wine of the Value of Three hundred pounds, a quant.i.ty of Bread, and a Great Gun and Carriage of the value of fifty pounds.

[Footnote 9: 150 tons, and of a value of 1000, according to the indictment of White and others.]

Fourthly, For that the sd. John Filmore, in Conjunction as aforesd., on or about the ---- day of the month of ---- last,[10] upon the high seas and within the Jurisdiction aforesd., with force, etc., did Feloniously and Pyratically surprise, seise and take a Brigantine named ----,[11] One Moor Master, and belonging to His said Majesties good subjects, and out of Her then and there in manner as aforesd. did take and Carry away Cloths and Provisions of the Value of Two Hundred pounds.

[Footnote 10: About October 4; _ibid._]

[Footnote 11: _Mary_, value 500; _ibid._]

Fifthly, For that the sd. John Filmore, in Conjunction as aforesd., on or about the month of ----[12] last, upon the high sea and within the Jurisdiction aforesd., with force, etc., Did Piratically and Feloniously surprise, seise and take a Brigantine named the ----, one Reed Master, and belonging to His Maj'ties good subjects, bound to Virginia with servants, and on or about seven days after, the sd. John Filmore, in Conjunction with sundry others, upon the high sea within the Jurisdiction aforesd., Feloniously and Pyratically with force and Arms as aforesd. did surprise, seize and take a Portuguese Brigantine bound to Brazel, and in manner as aforesd. did out of her take and Carry away a Negro Man slave named Francisco, of the Value of One hundred pounds, three Dozen of shirts of the Value of forty pounds, a Cask of Brandy and Provisions of the Value of Thirty pounds.

[Footnote 12: October, 500, and the same value for the Portuguese brigantine and the _Content_; _ibid._]

Sixthly, For that the sd. John Filmore, in Conjunction as aforesd., on or about the twenty seventh day of October last, in the Latt.i.tude of Bermudas, on the high seas and within the Jurisdiction aforesd., with force and arms Did Piratically and Feloniously surprise, seize and take the sloop named _Content_, George Barrow Master, belonging to His Maj'ties good subjects, and out of her then and there in manner as aforesd. did seise, take and Carry away John Masters, the Mate of the sd. Ship, and plate and Provisions to the Value of One hundred pounds.

Seventhly, For that the sd. John Filmore, in Conjunction as aforesd., on or about the seventh day of February last past, in the Latt.i.tude of 37 or thereabouts, on the high sea and within the Jurisdiction aforesd., with force and arms Pyratically and Feloniously did surprize, seize and take a ship bound from London to Virginia,[13] one ---- Huffam Master, and belonging to His Maj'ties good subjects, and out of her then and there, in manner as aforesd., did Feloniously and pyratically take and Carry away one Great Gun and Carriage, Cloathing, and a quant.i.ty of powder and Ball, all of the Value of One hundred pounds.

[Footnote 13: Valued at 1000 in the later indictment.]

Eighthly, For that the sd. John Filmore and Edward Cheesman, in Conjunction as aforesd., on or about the month of ---- last,[14] near the Isle of Shoals, on the high sea and within the Jurisdiction aforesd., with force and Arms Pyratically and Feloniously did surprize, seize and take an Isle of Shoals Sloop, John Salter Master, and belonging to His Maj'ties good subjects, in which the sd John Fillmore and Edward Cheesman did Enter, in Conjunction with sd Phillips, Nutt, Burril and Archer, together with their Guns, Ammunition and provision, etc. and Did also then and there, within the Jurisdiction aforesd., with force as aforesd., Feloniously and Pyratically surprise, seize and take a schooner, One ---- Chadwell Master, and also belonging to His Maj'ties Good subjects.[15]

[Footnote 14: Apr. 4.]

[Footnote 15: "Understanding that she belong'd to Mr. Minors at Newfoundland, with whose Vessel they first went off a pyrating, a Qualm of Conscience came athwart his [Phillips's] Stomach, and he said to his Companions, 'We have done him Injury enough already'; so order'd the Vessel immediately to be repair'd, and return'd her to the Master". Johnson, second ed., p. 405. The schooner was the _Good-will_ of Marblehead, Benjamin Chadwell.]

Lastly, For that the said John Filmore and Edward Cheesman, in Conjunction as aforesd., on or about the fourteenth day of April last past, on the high sea and within the Jurisdiction aforesd., with force and arms did Feloniously and Pyratically surprise, seise and take a sloop,[16] Andrew Harradine Master, and belonging to His Maj'ties good subjects, and on the fifteenth following, with force, etc., Feloniously and pyratically did Enter with all their Guns, Ammunition and Provision, on board sd Sloop. All which sd. acts of Pyracy, Robbery and Felony were by you and each of you done and Committed in manner as aforsd., Contrary to the statutes and the Laws in that Case made and Provided.