Callingwood v. Ship Oratava & her Cargo

This Case, If only Considered as to the Value of the Ship and Goods Libelled against is of Consequence: But when Strictly viewed in all Its Appearances Attended with such Variety of Circumstances It will Appear in its Determination to be of as high Importance as can Come in Judgment and therefore not to-be wondered the Auditory was so great, and the Tryal [ — ] though the Question before me on this Libel appears very Short: namely whether the Capture therein mentioned is a Lawful Prize or not: And in Order to form a Right Judgment herein, I have maturely considered, the preparitory Examinations produced on Tryal, and also the Writings taken in and with said Capture, — as well as the Evidences given in Open Court, and Arguments of the Advocates on the Part of the Captor as on the part of the Claimants, and am of oppinion the Captor has fully Supported all the material and Necessary parts of his Libel: that the Ship Oratava was at first the property of One or More of his Majesty’s Liege Subjects, that She was Chartered in April last at Tenerief there Loaded with Wines of the Island but who had the Property of her then does not fully appear, that She and her Cargo came first into Cape Cod puting Hubbard aShore and Secretly Some Wine and some fruit and after hovering on the Coast were taken as in the Libel set forth: the Cargo was to be Sold or Runned here or in some other part of his Majestys’ Plantations, Returns to be made back to Tenerief, in provisions to be purchased in said Plantations, with the Produce of said Cargo, pursuant to Instructions Signed by the said Lockhart one of the Claimants, and on Tryal owned to be his Instructions given M°Carrick the Super Cargo; Instructions that Open a most Shocking Scene of Disloyalty Treachery, and Corruption: therein I behold Persons Shaking of their Natural and Just Allegiance to our Sovereign Lord the King; weakening, if not Sapping, our Constitution deeply laying a Scheme for Supplying his Majesty’s Enemies and from his own Plantations with all Sorts of Provisions, for many Voyages, chartering Vessels projecting false Clearances, and for luring his Majesty’s Subjects to Navigate such Vessels first decoying them from his Majesty’s Dominions, the Consequence of which is that Such unhappy Subjects So Imposed upon Must on their Arrival at Tenerief Either be Imprisoned So Long as their Loyalty or Integrity Continues or on the Forfeiture of Both Enter into the Service of Our Enimies: and what Still *144more Shocks me is that in this Treasonable Commerce A Gentleman that once had the Honour and Trust of being, his Majesty Consul in Tenerief, Shou’d be Engaged a Partner with this Lockhart that he Should make a State of that Power to Certify as in the Case writing to his Majesty’s Subjects in these parts to favour these pernicious Proceedings and to Corrupt and Bribe them from their Duty and finally to Engage and Tempt them in the like Practices; Assuring them he will retaliate upon the like or any other Occasion: and that this is not a Hasty and Sudden transaction of the said Lockhart and his Concerned but herein he is acting a part woh by the papers Appears he Acted before and that Since the Declaration of Warr tho’ in this he Seems to Spread more Canvas: And Notwithstanding all these things in open Court appears most flagrant and Glaring to the Just abhorrence and Detestation of the whole Auditory the Claimants by their Advocates Either Justify or Excuse themselves by Insinuating that the said Lockhart and Company are good Loyal Subjects here only Endeavouring to get off their Effects from an Enemies Country or that if the projection was Illegal the same was not carryed into Action and therefore the capture ought to be discharged or acquitted The falsity of the first will fully appear from the Instructions and other Evidences in the Case And as to the Second in part they carried their Evil Concerted Measures into Action is plain: for to Purchase Provisions for the Kings Enemies they fitted out and Loaded Sayd Ship sent her to New England where some of her Cargo Such as Wine and Fruit was Conveyed a Shore that they were hovering on the Coast waiting a favourable apportunity to put the rest of the Instructions into Exon when happily they were taken happily Indeed, as thereby preventing Succour and Comfort to our Enemies, Happily as preventing Sundry of his Majesty’s good Subjects from being decoyed from their Loyalty or tricked out of their Lives and Liberties Surely if a projection should by Hellish Minded Subjects be carried on against his Majesty’s most Sacred Person to take away his Royal Life (which God long preserve) would any Lawyer say the fitting out a Vessel manning of her giving the Master Instructions how to' Commit this High Treson are not So many Overt Acts which render the Concerned Traytors or that on Tryal because their Hellish projection was most happily prevented from being Executed therefore the Contrivers are not to be hanged such Doctrine would appear very Odd and Strange in Westminster Hall And though this Case appears Short of that yet upon a Close observation it will not appear Vastly So Therefore as this Colony has distinguished itself Shewn how Much they have at Heart the Good Success of his Majestys Arm Engaged in So just a Warr by fitting out a Vessel of Warr at their own Expence and Several Merchants belonging to it have With the like Spirit fitted out at their Particular Charge Vessels of force to Annoy and destroy the Enemy Provi-, dence also seems to distinguish their Loyalty with Success and the present *145Capture is an Instance thereof, tho not so beneficial to the Captors as other Seizures yet much more to the Publick in its Consequences then all of them put together and I hope none that Loves their Prince their Country, Constitution and themselves will discourage this Laudable Undertaking, I never shall, and upon the whole I Adjudge and Condemn the Vessel and Cargo Libelled against as a Lawful Prize and Entirely to belong to and be divided between and among the Owners of the said Sloop that Seized and took the same and the Several Persons which were on Board the Same in such Shares and proportions as were Agreed on with the Owners afores4 and the Persons thus Entituled thereto by Virtue of such Agreement among themselves I Decree the Def4 to pay double4 Costs of this Court. And as to the Persons taken in this Capture I leave them to be treated by this Government according to Justice Appertains.

Rob4 Auchmuty Judge Ady

July 12th 1740

[Admiralty Papers, I, 19]

No. 24. William Shirley the Kings Advocate General moved the Court That inasmuch as it appears by the Evidence produced in this Trial that John M°Carrick the Supercargo of the Ship Oratava in the Decree mentioned has contrary to his Natural Allegiance to his Majesty conbin’d and Confederated with Sundry other Persons inhabiting within the King of Spains Dominions to Succour, aid and assist the Subjects of the King of Spain his Majesty’s Enemies, with Stores and Provisions from his Majestys Colony’s in America: the said John M'Carrick may be taken into Custody by the Marshall of this Court, and delivered over by him to the Governour of this Colony together with a Copy of the Decree or some other due Notice of his afores4 Crime, that he may be proceeded with According to due Course of Law No. 25 And Mr John M°Carrick the Claim4 in Court Moves for An Appeal from the s4 Court of Admiralty to the Commissioners appointed or to be Appointed under the Great Seal of Great Britain for receiving hearing and determining Appeals in Causes of Prizes, Which was granted and Allowed, the Appell4 Conforming himself to the Direction of the Law in that Case provided.

[Minute Book, 1740-1743]