A Stated Meeting of the Society was held at No. 25 Beacon Street, Boston, on Thursday, 23 April, 1903, at three o’clock in the afternoon, Vice-President William Watson Goodwin, D.C.L., in the chair.

    The Records of the last Stated Meeting were read and approved.

    The Chair appointed the following Committees in anticipation of the Annual Meeting:

    To nominate candidates for the several offices,—Messrs. James B. Ames, Thomas Minns and James A. Noyes.

    To examine the Treasurer’s Accounts,—Messrs. Ezra R. Thayer and John G. Palfrey.

    The Corresponding Secretary reported that since the last meeting of the Society he had received a letter from Mr. George Arthur Plimpton of New York accepting Corresponding Membership.

    The Treasurer reported that since the last meeting of the Society two gifts of money had been received,—one of One hundred dollars from the Hon. Horace Davis of San Francisco, a Corresponding Member, which had been added to the Publication Fund; the other of Ten thousand dollars from the Executors of the estate of the late Robert Charles Billings.

    On the motion of Mr. John Noble, it was voted that the thanks of the Society be extended to Mr. Davis for his acceptable gift.

    The Treasurer offered the following Votes in the form submitted by Mr. Billings’s Executors:

    Voted, That The Colonial Society of Massachusetts gratefully accepts the gift of ten thousand dollars made to said Society by Thomas Minns and Joseph S. Kendall, surviving executors of the will of Robert Charles Billings, from the remainder of the estate distributed by them in accordance with the terms of said will and a decree of the Supreme Judicial Court of Massachusetts dated April 1, 1903.

    Voted, That said Society also accepts the conditions of said gift making said sum a permanent fund of ten thousand dollars to be called the Robert Charles Billings Fund, the income only to be used for Publications; and the Treasurer of said Society, Henry Herbert Edes, is hereby authorized to receive and receipt for the same.

    After these Votes had been unanimously adopted, Mr. David R. Whitney offered the following Minute, which was also unanimously adopted:

    The Colonial Society of Massachusetts wishes to record its appreciation of the interest in its prosperity and work evinced by its associate Mr. Thomas Minns, in permitting it to share in the bounty of the late Robert Charles Billings, under whose last will he has faithfully served as an executor and almoner. With the exception of the late President Wheelwright, no member of the Society has, as yet, contributed so much to its material welfare. This substantial addition to the endowment of the Society is timely and inspiring, and impels the members to offer to Mr. Minns this formal testimonial of their gratitude.

    On behalf of Dr. Horace Howard Furness, a Corresponding Member, Mr. Henry H. Edes communicated some letters written by James Martineau1 and James Russell Lowell to Dr. Furness’s father, the Rev. Dr. William H. Furness. The letters follow.



    De Los

    Estados Unidos de America

    En España


    13 July, 1879.

    Dear Doctor Furness,

    It was a very kind thought in you to give me an account of your visit to Emerson & of his actual condition, for I feared from what I had heard that his mind as well as memory had begun to fail him. The tone of your letter, even more than what you say, convinces that he is at least happy, & happy from his own resources. This is as it should be, for he of all men deserves

    An old age serene and bright,

    And lovely as a Lapland night,

    & so I fancy him since your letter with one daylight bending over to kiss the other above his head. However, I cannot conceive him as an old man. I associate him always with things vernal & in their prime, with the everlasting forces that know not decay, & though by the common doom his bodily presence must be taken from us ere long, there are few men of whom so much will be left living & giving life. I have never known a character on the whole so beautiful, so high above self, & so kindly a mixture of strength & gentleness. How firmly he always held his own & that without ever withstanding others but only the thing they represented. I have known a bit of scenery & now & then a Cathedral to stamp itself on my memory as he did, but no other man & no other thing. I remember as if it were of yesterday the first time I ever walked with him & the exquisite suavity of his demeanor towards me—a boy of nineteen & very young of my age. It was to the “South-Cliff” (I think they called it) in Concord, a lovely summer day forty one years ago. What an other New England it was then to that we have now!

    I sometimes think that it is not our own growing-old that is painful—if indeed we are altogether conscious of it—but that of those older than ourselves & associated with the better memories of our prime. With every one of them we lose a bit of our youth which survived for us still in them, & at last find ourselves alone in an unfamiliar or even alienated landscape which they tell us is the same but from which all the old landmarks that made it dear to us are gone. Even the cutting-down of a long-known tree leaves a scar in the heart that aches in bad weather, but when the cara e buona imagine paterna of such a man as Emerson is seen no more a gap is left between us & our past that nothing can ever fill.

    It rejoiced me to see in your handwriting that you at least may mock at calendars. And if, so you say, you are nearing eighty, it must be very jolly to be at once so old & so young. I do not remember the year of your graduation,1 but you must in the nature of things be soon celebrating your sixtieth anniversary. May I be there to see! For I am sure that after all other reminiscences are exhausted I shall see you proposing a dance round the tree to supple your joints a little after sitting so long.

    When your letter came I was passing through the most painful week of my life. My wife1 (a very beautiful & noble woman) was at the very gates of death with typhus. Five days ago she was thought by the doctors to be actually dead—but revived as by a miracle & is now thank God getting slowly better. My mind is still somewhat confused with the horrors I have passed through & which I think I could hardly have endured but for the kindness & devotion of two of our Spanish friends here. Especially to Señora de Riaño I think I owe the saving of what was so incalculably dear.

    Let me add my felicitations to those of your other friends that Old Age if Old Age it be that has such an elastic step finds you happy at the close of a life on every day of which you can look back with satisfaction.

    With great respect

    faithfully & cordially yours

    J. R. Lowell.


    2, Radnor Place,

    Hyde Park, W.

    16th June, 1887.

    Dear Doctor Furness,

    I would gladly have done what you wish both on account of my high regard for you and for my own sake, but I could give no point-blank answer unless it were “no.” There is no use in whistling for a wind on such occasions and one must brood awhile before he can be certain that it is the Muse or some less auspicious spirit that invites him. I came over here very weary and hoping for a summer of absolute rest. When one is approaching sixty-nine, one hasn’t the courage of one’s prime. The occasion2 lends itself but grudgingly to lyricism and the fate of the Jubilee Odes here was not encouraging to violent methods with the Muse. Tennyson has run away to sea that he may escape a second mischance.

    I had been meditating over the subject and gradually blocking out a framework in my mind that might sustain and give order to a fitting fabric of strophes. But I had not got so far as to know whether my thoughts would sing when your telegram came. Telegrams always scare me and yours upset me altogether. So with the best good-will in the world, I feel that it will be better all round if I withdraw from the enterprise.

    Mr. Lodge in writing to me speaks of a letter from your son Mr. Howard Furness. I have never had such a letter or I should have answered it.

    With high and affectionate regard,

    faithfully yours,

    J. R. Lowell.



    Cambridge, Mass.

    20th Nov: 1889.

    Dear Doctor Furness,

    I also have a very high appreciation of Miss Repplier1 & should be glad to see her. But you don’t say when she is coming. Perhaps she might be good enough, considering my ’ears, as Dogberry says, to let me see her here when she comes Eastward.

    Send the sermon by all means—one of yours can’t fail to do me good. It is a comfort to think of you as still active for good.

    Faithfully yours

    J. R. Lowell.

    The Rev D Furness.


    Liverpool, Dec. 7.th 1836.

    My dear Sir,

    These lines will be presented to you by Mr Henry Ames who, with Mrs H. A., is about to spend some time in Philadelphia, and will find a residence there so much the more interesting, if you will permit them to enjoy the privilege of an acquaintance, personal and pastoral, with yourself and Mrs Furness. Mr. Ames was a fellow passenger of Harriet’s,1 when she went to visit your country; and now, with the ready enterprise of the English merchant, which gives him a home as wide as his commerce, leaves us for another season. Mrs Ames is, if I recollect right, a member of one of our sound old Presbyterian families.

    Mrs. Butler2 arrived here well, but anxious about her child. We saw her two or three times during her short stay in Liverpool. I do not think that any thing serious ails her baby, but her agitated spirits on returning to her country under circumstances so changed disposed her to needless solicitude. She showed me the outside of your book.3 This is a tantalization I cannot bear. You must send me the means of looking into the interior. May I send my own and wife’s kind regards to Mrs Furness?

    Ever yours with high esteem,

    James Martineau


    RevD. W. Furness,


    Favored by

    Henry Ames EsqR.


    South Kinrara, Aviemore,


    July 10, 1873.

    My dear DR. Furness,

    Your prompt and generous contributions to the wealth, as well as the accuracy, of my Hymn book, deserved an earlier acknowledgment. But till the vacation carried me off to the Scotch mountains, I struggled in vain with the more importunate claims which in London keep me in a state of permanent compunction about my correspondence. I do not know how to restrain within measure my thanks both for the hymns (of which I have used all but 2), and for the glorious Song on John Brown. All of them go to my heart: and the last is truly noble and magnificent in its simple power. I was also much obliged by your son’s kind offer to hunt up the original form of Peabody’s hymn. But having taken it from the Springfield Collection, for which, I think, it was written, and tested it in various ways, I have no excuse, on the score of doubt, for imposing further trouble about it. There are however a few obscurities, with regard to the literary history of American hymns, which I find it still difficult to clear up, notwithstanding the very valuable help I have received from Mr Samuel Longfellow. Among other things, I cannot make out the date of your hymn in the New York Coll. beginning “Father in heaven, to whom my heart.” This doubtless you will kindly tell me. I think it must be 1824. Should you happen to know also the dates of any of the following, perhaps you would jot them down at the same time.


    Bk. of Hymns

    Thos Gray

    “Suppliant, lo! thy children bend”


    H. Ware

    “To prayer, to prayer” &c



    H. & Tune Bk


    “Mighty One, before whose face”



    “O God! I thank thee that the night”

    Bk. of H. 366

    “Another day its course hath run”


    Saml Gilman

    “This child we dedicate to thee”



    H. of the Spirit

    Mrs Willard

    “Rocked in the cradle of the deep”


    H. M. Kimball

    “We have no tears thou wilt not dry’


    N. P. Willis

    “The perfect world by Adam trod”

    (What were Willis’ Christian names?)

    Plymth Coll. 938

    The volume is now in the press: so that I hunger for all last scraps of information that may reduce its imperfections and fill up its lacunae.

    I had the great pleasure of just falling in with Dr. Sears1 before I left town. I had long known and loved him through his writings: and it was delightful that the personal impression so absolutely harmonized with the imaginative prepossession. It needed not Dr. Bellows’s2 affectionate introduction to give assurance of what he is. Though unable to occupy his position in theology, I wish I could feel more confidence that a different and more modern position is likely to reproduce such a spirit as his. Perhaps in a generation or two it may be so: but at present the saintly mind seems to be the attribute of the old theology. It is a pathetic lot that assigns some of us in feeling to the Past, and in thought to the Present.

    Believe me ever,

    Yours very faithfully,

    James Martineau.

    Rev. DR Furness.

    P. S. My address will be here for some time to come.


    10, Gordon Street,

    London, W. C.

    Feb. 26, 1874.

    My dear DR. Furness,

    That my Hymnbook should go so far towards satisfying your feeling is the best possible compensation for its falling short of my own. To acquiesce in imperfect works is one of the hardest lessons of life: yet without learning it, nothing is to be done. I could write half a dozen hostile criticisms on this book, all without real injustice: yet it has cost me my best pains, and perhaps improves sufficiently on its predecessors to justify its appearance.

    I know the Hymn of Doddridge’s which you cite, and like the feeling of it much. But I cannot get over the “Rivers of salvation”: and the “Tongue of feeble clay” sticks in my throat. Moreover, the feminine character of Doddridge’s mind, which touches many of his hymns with a delicate grace, here seems to me to verge towards feebleness, and rather dangerously try the piety of strong men.

    Such a recognition of the Book as would be its adoption by your congregation is beyond all my expectations. If however the idea should be seriously entertained, you could have any required number of copies, in the cloth binding of which you have a sample, at 3 shillings and 3 pence per copy, i. e. I suppose 78 cents: or, if you preferred to “bind at home,” in Sheets, at 2 shillings and 9 pence, or, I suppose, 66 cents, reckoned in specie. These are the prices to our English congregations. The Edition with Tunes will be not less, I fear, than double these prices. I am so much better pleased with a New York Presbyterian book (“The Sacrifice of Praise”) than with any Music printing I can find here, that I have sent over to the Printers of it for an Estimate: so that I may possibly print in New York. But I am afraid that the range of prices is higher with you than with us at present, and that I may be unable to carry out this scheme. I quite hope that the Musical Edition will be brought out within the year. It waits only for the harmonizing and transcribing of the tunes, a process which is rapidly advancing under the care of a small Commee, consisting of my two sons,1—both of whom, happily for me, are scientific as well as executant musicians,—and my friend Rev. James Whitehead of Hackney, who is one of our best authorities in regard to Church Music. They are all rigorous in their disapproval of adaptations, picked out of Operas and Oratorios: so that the volume will consist wholly of pure Church Music: and as the range of exceptional metres and special hymns is considerable, there will be a good number of original compositions, written for the words.

    In the first issued copies of the Hymnbook there appeared a few vexatious misprints, which did not exist in my Revises and are not in the electroplates, but which were introduced at the last by a careless workman. Some of these you may probably have noticed. They are all corrected now, except 2 or 3 slight ones affecting only the punctuation.

    Believe me ever, dear Dr. Furness,

    Yours very faithfully,

    James Martineau.

    Revd DR Furness.

    Pardon this soiled page. To think that I should put a blot upon your name!


    10, Gordon Street,

    London, W. C.

    May 23, 1874.

    My dear DR. Furness,

    The favour with which your congregation regards the Hymns of “Praise and Prayer” is a heartfelt joy to me: and I shall make no protest against any treatment, in the way of excision or addition, which you are likely to apply to it.

    The price must be 2 shillings and 9 pence per copy in sheets. This is the rate for our congregations here: and it is fixed so as to be really below cost price,—at least, unless more than 20,000 copies are sold. My old Liverpool congregation is at present the only one where the book is in use. People wait for the musical and smaller editions: and, as my funds are limited, they unfortunately wait for some adequate sale of the present edition. But this waiting race shall not result in standing still.

    Eliza Scudder1 is, I think, a Washington lady: at all events she belongs to you. Her hymns are full of verve and nobleness: and 168 is, I quite agree, especially fine.

    At the end of June, I shall be leaving London for my vacation retreat on Loch Long side in Argyllshire. Though I can give any orders about the Hymnbook by letter to my printers, it would be more satisfactory to me to see, personally, to the carrying of them out. Should you therefore be able to send me instructions before I leave home, better attention would be secured to them, than if they came in July, August, or September.

    I shall regard it as a true privilege, should I, through this volume, be associated with your day of congregational and personal Jubilee. “Fifty years Pastorate!” it is a refreshing instance of conservative and enduring life in this age of restlessness. The world would move better, as I think, if its steps could be brought nearer to so dignified and faithful a measure of change.

    Believe me ever,

    Yours most truly,

    James Martineau.

    Rev. W. H. Furness


    10, Gordon Street,

    London, W. C.

    Sep. 8, 1874.

    My dear DR. Furness,

    I am sorry if the inopportune arrival of the Hymn books robbed you of one of your precious country days. Glad as I am to know of their safe delivery, there was no hurry about the Invoice: and I had rather have gone six months without my remittance than give you a needless hour in town. The too prompt Draft has duly reached me today. It is the first reimbursement of my outlay on the book: for, though the large Edition is for the most part sold, my Publishers will not account to me for anything till December,—perhaps not even till June next year.

    I cannot hope that so large a lot of books has altogether escaped the effects of carelessness on the part of the Binders. Should copies turn up here and there with misplaced or omitted sheets, I shall feel obliged by your keeping a register of their number; and perfect copies shall be sent in their place by the next opportunity. And as the book comes into use, I shall be thankful to be told of any slips or errors which you may notice on my part. Already there are a few corrections and additions (to names & dates) on my list, which will improve the next edition. These relate chiefly to the American Hymns; on which, notwithstanding the friendly aid of Samuel Longfellow in addition to yours, I found it extremely difficult in the first instance, to obtain exact information. The publication of the book has brought out the communications which I could not elicit before. Mr Bryant1 says,—and it pleases me to know it,—I have convinced him,—of what previously he did not admit,—that changes and differences in theology justify alterations in the text of hymns. This is a great and large-minded concession from a veteran poet of the most sensitive literary taste.

    Believe me ever,

    Yours very faithfully,

    James Martineau.

    Rev. DR. Furness.

    Received, per Draft on Messrs Brown, Shipley & Co., in discharge of Hymn book Invoice, £83=4=10.

    James Martineau.


    5, Gordon Street,

    London, W. C.

    June 14, 1876.

    My dear DR Furness,

    Your promptitude in acknowledging the receipt of the Hymn-books shames me by its contrast with my Agents’ delays. But if “all’s well that ends well,” it is better to say no more about the sins of the past, and simply to thank you for your kind remittance, and to hope that, with continued use and growing intimacy, the Time-book will more & more commend itself to the feeling of your congregation and the critical judgment of the musical experts among them.

    I must not forget to thank you for your very interesting and admirable paper in the Unitarian Review on the Religious application of the “Evolution” doctrine. I read it with delight and hearty assent, from beginning to end; and with joyful wonder that your mind seems able to beep for ever young. And now you tell me that you are retiring from the field of active labour, and that your successor is already at work. I shall never be able to think of the Philadelphia pulpit as occupied by any one but W. H. Furness. With him the brightest and noblest chapter in the history of American Unitarianism closes: and we descend from heroic & prophetic heights to the levels of business organization and civic commonplace. No repose for declining years has ever been more thoroughly earned than yours: and I trust that it may enable you all the more effectively to speak to us at intervals through the press, as suggestive occasions may arise.

    Believe me ever,

    Yours very faithfully,

    James Martineau.

    Rev. W. H. Furness.


    5, Gordon Street,

    London, W. C.

    Dec. 23, 1878.

    My dear DR Furness,

    In venturing to send you my recent Address, I did not mean to impose upon you even the task of reading it,—which, I know, is not a light one,—much less that of sending me so charming an answer to the presentation. I often lament the metaphysical habit which,—as my friend W. R. Greg1 tells me,—spoils my style, and makes all that I write very stiff reading: but it is too late to mend. My own faith by no means requires me to sink deep in the scrutiny of ultimate principles: I rest contentedly in the common trusts of the human soul, and seek no recondite verification of them. But when I encounter the doubts of others, a fear of not getting to the bottom of them drives me too far from the surface,—in which after all, they may probably have their only roots.

    I wish I could look with your genial and hopeful eye on the negative tendencies of our recent culture in regard to religion, or could detect any better affirmation looking behind their denial. Without for a moment doubting that, when the darkness and the storm are past, the air will be brighter and sweeter, and the clear heaven embrace us again, I cannot but apprehend great desolation of heart and no little moral shipwreck meanwhile. Indeed, they are already abundantly visible: and when a generation has grown up without the idea of Duty, or with no sacred feeling connected with it,—and that is certainly what is coming upon us here,—the social result is one which I shrink from contemplating. My German and Dutch friends are affected by similar anxieties.

    You introduce me to a personage quite strange to me in your mention of Omar Kayyam: & as it is a part of my business to make acquaintance with all oddities and extremes of thought, I shall look him up,—probably with the help of Mr Channing,1 who lives very much with these queer Orientals. I suspect I shall share Emerson’s feeling,—as Mr Channing will be found to share yours. I am obliged to own that I have never found any light I care for in either Indian or Persian literature, so far as accessible in English; and the study of it is mere task-work to me.

    Believe me always,

    Yours very cordially,

    James Martineau.

    Rev. DR Furness.


    35 Gordon Square,

    London, W. C.

    Feb. 29, 1888.

    My dear DR. Furness,

    By the help of Leap-year alone my lazy conscience saves its usual vow & answers your delightful letter within the mouth of its own date. In asking silently your acceptance of my recent book, I reckoned on no more than the silent reply of friendly acquiescence. You have given me a hundred-fold more, and from my heart I thank you. It is not difficult to me to dispense with public approval in matters of deep inward conviction. But here and there are a few loved and venerated men, whose sympathy at once intensifies my faith and doubles my joy in it, & this it is that makes your word so precious to me. I pray you, do not worry yourself with my metaphysics: they are but medicine for sickly minds, which the healthy may well fling away as they would “apples of Sodom.” It is the constructive part of the book in which alone I do profoundly care for fellowship; precisely because it is out of the sphere of “originality,” and only recites once more the eternal conditions of our common life and love. I believe in the permanent necessity of the philosophic schools which torment the wits of mankind. It is useless to rave at them as the scientific & scholarly men are apt to do. Their modes of thought lie behind the first assumptions of all that can be practically learned or taught, and will force themselves into consciousness with a few of the learners & teachers, though unsuspected by the rest. And when once they speak out, they will not be put off till their rights have been determined and set clear of false pretensions set up on their behalf. The critical process to which, I believe, this task is possible, gives no new revelation, but re-instates us where we intuitively stood, only with certainty secured that the ground is not hollow beneath us.

    It is refreshing to hear of your continued immunity from all the usual disabilities of age. I am your junior by 3 years; but I could not legibly tell you so, had I not glasses for my eyes. And deafness in one ear obliges me to choose my place with care at any meeting where the interest depends on speech or music, and to manœuvre with a companion in a walk to get hold of his right arm. Else, this 9th decade is little different with me from its predecessors, unless it be that my work is slower and cannot be dashed off in haste as in younger days.

    I thank you heartily for “The Faith of Jesus.” I am with you in devoted acceptance of that faith in its essence, its self-evidence, & its applications; though, to reach it, I should remove some of the alleged reports of it in the Gospels wh. you are able to retain; &, to hold it, do not find it requisite, or possible, to reckon among its effects the “signs & wonders” attached to it in the narrative. The features of a transcendent personality may be guaranteed to us by internal evidence. But external facts must rest on testimony: and that is shown, by the historical criticism of the last 30 years, to fail us completely, as I am obliged to own. In this there is to me far more gain than loss: the lines and touches of colour which have vanished from the prior image of Jesus have left his figure, fainter indeed but diviner far than I had conceived before, & clearer than ever of all responsibility for the strange mythology by which Christendom has hid it from view. I have no faith in a religious future for those who renounce their allegiance to that personality; whether to try a Philosophical Theism, or a bare Ethical Ideal, without him.

    I remain, always,

    Yours with lifelong affection,

    James Martineau.

    Rev. DR Furness.


    35, Gordon Square,

    London, W. C.

    April 14. 1889.

    My dear Dr Furness,

    Your charming letter of birthday greeting makes me feel as if, with the grasp of your loving hand, I stood by your side on the verge of two worlds but a step apart,—one in the twilight of tender memories, the other in the dawn of brighter hopes. I often think, in these evening hours of life, of what W. H. Channing said to me within two or three days of his departure,—“I have long lived so freely in the invisible future just as in the remembered past, that the boundary of the two worlds has almost vanished and reduced death to nought.” To his intensely ideal nature, this was simply true. Those of us who, though in advance of his age, are still day-labourers here, with unfinished tasks that press for completion, may perhaps be pardoned, if they have not yet reached the point of absolute indifference at which his spirit rested in suspense.

    Gently as old age deals with me, your wonderful energy far outstrips my poor performances. I have left the pulpit, the Lecture-room, the Public Meeting, and the private dinner party; and now concentrate what faculty I have on quiet work within my own study. There, the same subjects engage me which have so long and so fruitfully occupied your thoughts. If the results do not quite coincide with yours, it is from no demur to your fundamental principles, which I heartily accept, but from inability to accept as historical facts the greater part of the reported acts & incidents to which you apply the principles. The fresh light which has been thrown, by the critical investigations of the last 30 years, on the origin and growth and early literature of the Christian Church, seems to me to alter the whole aspect of the problem with which we have to deal, and relieve us of many phenomena for which special hypotheses had been devised to account. A book1 on which I am at work will ere long, if I live, so much better explain my meaning than this hasty note, that I will say no more.

    My congratulations are too late, I fear, to do their duty on the right day. None the less hearty and affectionate are they. Had I. known your date, they should have led the way as a prelude, instead of hanging on as an appendix. By the way, I think you have one Senior—in Dr Farley,1—and he seems to be your partner in vigour.

    Believe me ever, with best wishes and many thanks,

    Yours most cordially,

    James Martineau.


    The Polchar,




    May 27, 1890.

    My dear DR. Furness,

    The first use to which I put my escape from London distractions into this mountain nest shall be, to send you my hearty thanks for your two last publications,—the “Conference Discourse” & the “Story of the Resurrection.” Both of them I read with the delighted interest which all that you write awakens in me,—none the less that I reach essentially the same result as yours by a different track and at a heavier cost of discarded “impedimenta.” I cannot rate the historic elements of our Gospels so highly as you do: but what I have to eliminate as increments of tradition is precisely what confuses rather than clears the entrancing image of the central figure wherein the Human & the Divine characteristics are unified. The Evangelists give us, no doubt (inter alia), some early and genuine Memorabilia of the Ministry of Jesus, Matthew of what he said, Mark of what he did & suffered; but, as a whole, their narratives reflect more of his subsequent church than of his personal biography, & fuse together the primary Religion and the derivative Theology in a way which seriously dims the pure lustre of the former. It is the glory of the modern criticism, that it more & more enables us to separate the two.

    Notwithstanding the inevitable excisions which reduce the historic gospel to a short & simple compend, I cling with an intense tenacity to the distinctive Christian life & name; out of which, as from nothing else, may and must be developed all that belongs to the spiritual perfection of humanity. And I cannot see, without regret, the disposition among our younger men either to begin, de novo, from mere Ethical postulates, at most from abstract Theism, or to go a-hunting among foreign Religions,—Buddhism, the Zendavesta, Confucius, the Vedas,—for something which, as chosen and patronized by them, will never overawe & subdue them. Good as anthropological studies, these exotics become imposters when they pretend to capture and redeem the soul. For myself, I would cast my lot with those who keep true to the line of their history, & own their trust to push it on into new latitudes of Divine reality. Let other races do the same: & all perhaps will meet at the same pole at last. Our good & accomplished friend, J. H. Allen1 (now in London) chides me for narrowness for thus judging; while I rather complain of his cold critical externality to all the religious tendencies which he so impartially reviews. I hope we shall have it out together in friendly converse soon: for he promises to visit me here at the beginning of July, when, in one direction or another, the breezes of the mountains shall blow all our dialectic away.

    It is delightful to hear how blest you are in your sons & daughters; it is the joy which fulfills the first prayer and the last of a loving old age. I am so much withdrawn now from the literary world that I cannot say whether the last Vol. of the Variorum Shakespeare is yet known here. I have little doubt that it is: for nothing is more quickly caught up in the book market than any new product of the Dramatic Press, whether original or critical.

    Our Unitarian Anniversaries are being held in London this week. I am doubly thankful to be in this retreat: for they are not congenial to me, & I can do no service to them; so the distance between us is a benefit to both, conducing to mutual good-will.

    Believe me, dear Dr Furness,

    Ever most cordially yours,

    James Martineau.

    Mr. Albert Matthews read a paper on the term Red Man as applied to the North American Indians. He remarked that no attempt had been made to give the history of the term, that little had been written on the subject, and that the generally accepted notion was that Indians were called Red Men on account of the natural color of their skin. He showed that the adjective red—qualifying various nouns—had been applied to the Indians since at least as early as 1699, and that it had long been accepted by themselves. He then proceeded to quote many extracts, and concluded by remarking:

    These extracts are examined in vain for confirmation of the generally accepted notion that Indians were called Red Men on account of the natural color of their skin. On the contrary, we find current in the seventeenth century the curious belief that Indians were born white, and that the darker hue was later acquired as a result of bathings and ointments. But this darker hue was regarded not as red, but as brown or “tawny;” indeed, this last word was considered so aptly descriptive that it was turned into a noun. On the other hand, there is ample evidence to show that red was a favorite color with the Indians at all times, and especially in time of war. Must we not then conclude that Indians have acquired the sobriquet of Red Men by reason not of the natural but of the artificial color of their skin?

    Mr. John Noble made the following communication:


    A young colony naturally has little occasion for any full code of Admiralty laws or any distinctive Admiralty Courts. It has little concern about those matters which fall properly within such jurisdiction, for it can dispose of them with a fair amount of justice and convenience in its local courts. Until more complex internal conditions and outside relations grow up, it finds this the easiest and most satisfactory way. It was evidently so in Massachusetts. Not until 1650 is there any legislation, even remotely connected with such affairs, apparent in the Massachusetts Colony Records, and the Court records are silent in the early years. Up to 1644 neither in the Massachusetts Colony Records nor in the records in the so-called Barlow Copy is there more than a single entry that savors of Admiralty jurisdiction. At a Court held 2 June, 1635, controversies which arose between certain parties as to their rights in the ship Thunder were sent to a board of arbitrators for determination.1 The latter fact in itself, however, proves nothing, for to a large degree the Court records are missing, and where they exist they are conspicuously incomplete, as I have shown elsewhere,2 and contain little beyond the record of cases of a criminal or of municipal or otherwise public character. Civil cases between individuals seem not to have been recorded at all in the earliest years, and the later records, which are shown to have existed, have been lost from a time beyond the memory of living man. No full records of the Court of Assistants appear till 1673, and of the other Courts at about the same time. Much can be supplied, however, from certified copies found in later cases among the Court files and in the writings of contemporaries, especially of Winthrop.3

    The Colony Charter of Charles, without the reservation of the Province Charter of William and Mary, gives full power to hold Courts, to “establishe all manner of wholesome and reasonable orders, lawes, Statutes, and Ordin͠nces, direc͠cons, and instruc͠cons, not contrarie to the lawes of this our realme of England,” and for “the directing, ruleing, and disposeing of all other matters and thinges” for the religious, peaceable and civil government of the Colony, with “full and absolute power and authoritie” to all the higher officers of the Colony, “according to the Orders, lawes, ordin͠nces, instruccons and direc͠cons aforesaid, not being repugnant to the lawes and Statutes of our realme of England.”

    Acting under this authority, and with its usual sturdy independence and its application of good common sense and Anglo-Saxon notions of justice, the Colony probably got safely through all those cases that smelled of the sea, either in the Court of Assistants or in the General Court, without much difficulty, for many years.

    As showing how little distinction was made by the courts between admiralty and common law proceedings in eases before then, Washburn1 refers to the case of Madame La Tour in 1644, giving some account of it taken from Winthrop.2 But some twenty years after the first settlement in Boston, questions apparently began to arise, and the necessity of some formal code began to show itself. And here appears the first attempt at legislation—which was apparently attended with only indifferent success:

    Att a Courte of Elec͠con, held at Boston, the 22th 3 Mo, 1650.

    Whereas this commonwealth is much defective for want of lawes for Marityne affayres, and forasmuch as there are already many good lawes made & published by or owne land & the French nation, & other kingdomes & common wealths, this court doth therefore order, that the sajd lawes, printed & published in a booke called Lex Mercatoria, shalbe pused & duly considered, & such of them as are approved by this Court shalbe declared & published, to be in force within this jurisdiction after such a time as this Court shall appoynt; and it is further ordered that Mr Bellingham, Mr Nowell, Mr Willoby, Capt. Hawthorne, the Auditor Generall,3 & Mr John Allen, shalbe a committee to ripen the worke, & to make returne of that which they shall conclud vppon unto the Generali Court, and the time of their meetinge to be the first third day of the sixth moth next–

    ꝑ Cur̃.4

    This Committee appears to have been somewhat slack in the duty assigned to it, and—

    Att the Second Session of the Generali Court, held at Boston the 14th October, 1651, [it appearing that] sd committee haue not yett mett according as was then concluded, . . . it is ordered by the Court, that the accomplishing of that worke shalbe referred to Mr Nowell & the Auditorgenerall . . . to make returne thereof to the next Generali Court.5

    The second Committee apparently accomplished as little. At any rate, it does not appear how much benefit was derived from the labors imposed, how far they were discharged, or what was the practical outcome.

    But whether with or without a code there is no evidence of any change in the jurisdiction, and at all events it is evident that they dealt with piracies and other happenings upon the high seas as if they had occurred on the main land. Exigencies would arise from time to time when the want of controlling laws would be felt.

    Incompetency and greed are peculiar to no time or people, and even Puritan Commonwealths are not exempt. Somewhat later it seems to have become necessary to protect the interests of merchants and the lives of mariners from such shortcomings of human nature, and, though perhaps not strictly a matter of admiralty jurisdiction, resort is had to legislation.

    At the Session of the General Court in October, 1667, it appearing that “divers unskillful persons, pretending to be shipwrights, doe build shipps & other vessells . . . which are very defective, both for matter & forme, to the great prejudice of merchants & ounors, & the danger of mens lives at sea,”1 a Committee is appointed to draw up laws to remedy the evil.

    For many years after the unsuccessful movement in 1650, the Colony ran on without any distinctive maritime code. The Body of Liberties, Liberty 67, had laid it down as among the rights of the freemen, “to choose yearly at the Court of Election” “all the General Officers of this Jurisdiction,” among them the “Generali of our warres” and “our Admirall at Sea”—subject to discharge as therein provided. But the growth of the Colony at last brought about some legislation, and—

    Att ye Second Sessions of the Generali Court, held at Boston, 14th of October, 1668.

    Whereas, through the blessing of God vpon this jurisdiction, the navigation & maritine affaires thereof is grown to be a considerable jnterest, the well management whereof is of great concernment to the publick weale; for the better ordering the same for the future, & that there may be knowne lawes & rules for all sorts of persons imployed therein, according to their severall Stations and Capacitjes, & that there may be one rule for the guidance of all Courts in their proceedings in distribution of justice,

    a law is enacted containing twenty-seven sections and covering differences between owners, conduct of masters and mariners, penalties to be imposed on them for breaches of duty, questions of wages, provisioning of vessels, conduct of voyages, loss of goods, collisions, and other kindred matters.1

    There would seem to have been some sort of an Admiralty Court or a Court exercising such jurisdiction in Massachusetts a dozen years earlier, by the mention made in the Danforth Papers of “our Court of Admiralty here,” in 1666.2 It seems most likely that it was no distinct Court, but simply an exercise, as occasion required, of Admiralty powers in the local Courts of the Colony, probably the Court of Assistants, or under the Governor as Vice-Admiral, as the colonists were always equal to the situation at hand, and had no hesitation in finding good legal ground for meeting necessary emergencies.

    In 1673 appears the first formal legislation as to the trial of “all cases of admiralty.”

    Att a Speciall Generall Court, called by order of the Council, and assembled together in Boston, 10th December, 1673. [At an adjournment thereof on the 6th of the following January,] It is ordered by this Court & the authority thereof, that henceforth all cases of admiralty shall be heard and determined by the Court of Assistants, and to be issued by the bench wthout a jury, unless the Court shall see cause to the contrary, prouided allwayes this act shall not be interpreted to obstruct the just plea of any marriner or merchant impleading any person in any other Court vpon any matter or cause that depends upon contract, covenant, or other matter of com̃on æquity in maritine affayres, to be issued according to the knowne lawes of this colony.1

    Numerous cases under this jurisdiction are to be found in the Records of the Court of Assistants, Volume I., lately issued, which show the variety of causes that came before it and their character. Among them are some interesting trials for piracy occurring not only upon the high seas but within the limits of Massachusetts waters not far from Boston.

    The records show the Court of Assistants under this law of 1673 to have sat regularly and frequently as a Court of Admiralty. Besides these regular sittings, a special or additional sitting seems sometimes to have been called upon request, or rather a matter brought specially before it.

    Att a Court of Assistants or Admiralty held at Boston on the 15th of April 1686

    The Court mett at the time and at the request of Mr Willjam Woodrope of the Island of St. Christophers now Resident in Boston A Court of Admiralty is granted him against Mr John Keech [and another,] to be held at sajd Boston on the 22th of Instant Aprill at three of the Clock in the Afternoon; [and] Att an Adjournment of the Court of Assistants or Admiralty held at Boston 22th of April 1686 [the case is heard, the complaint being for a wrongful attachment and judgment in the County Court.]

    The case against Keech as also that against Thornton is recorded at length.2 As this volume covers the period from 1673 to 1692, it shows that this jurisdiction continued up to the time when the Colony passed into the Province.

    There is to be found an instance of the General Court acting as a Court of Admiralty:

    Att the second Sessions of the Generali Court, held at Boston, the 11th of October, 1676.

    The Court, as the Court of Admiralty resolved, & that by voate, that Robert Orchard, the officer, had not acted regularly in his seizing, &c., and to find for the plaintiff, Daniel Anderson.1

    The Colony passed away and the Province succeeded. The Provincial Charter of William and Mary made direct mention of Admiralty Courts and reserved to the Crown the right to establish and organize them:

    Provided alwaies and it is hereby declared that nothing herein shall extend or be taken to Erect or grant or allow the Exercise of any Admirall Court Jurisdicc̃on Power or Authority but that the same shall be and is hereby reserved to Vs and Our Successors and shall from time to time be Erected Granted and exercised by Vertue of Com̃issions to be yssued vnder the Greate Seale of England or vnder the Seale of the High Admirall or the Com̃issioners for executing the Office of High Admirall of England.2

    In the absence of any regularly constituted Courts, whatever Admiralty authority became necessary was executed by the local authorities.3

    As showing that the local Courts took and exercised jurisdiction at this time over matters that savored of Admiralty is the case of Charles La Tour v. Thomas Walters, etc., in 1696. This was an appeal from a judgment of the Inferiour Court of Common Pleas on a “Libell . . . as well for and in behalfe of our Sovereign Lord the King as for themselves,” brought by the defendants in the Inferiour Court, under “An Act made by the Generali Assembly of this His Majties province of the Massachusetts Bay, in the Seventh year of His present Majties Reigne, Entituled an Act to prevent the Supplying of his Majties Enemies.”4 The jury—find for the defendants.—Confirmation of the fformer Judgment. It is therefore considered by the Court That the sd Informers shall recover the sd Shallop Jacob with her Tackle Apparrell ffurniture Lading on behalfe of His Majesty and themselves in manner as by the aforesaid Act is directed.1

    There is a large group of papers among the Suffolk Court Files relating to this case and giving much of its inside history:—the Information, plea, judgment and record of the Inferiour Court; a petition for protection and aid as not knowing the English language; the reasons of appeal, and answer thereto; an address to Governor Stoughton (translated), praying the restoration of his goods and vessel; certificates of Naval officers of Boston and of New Castle, New Hampshire; various depositions, a list of the papers, etc., taken on board the shallop, etc.; eighteen in all. The spelling of the name of the original defendant, De La Tour, is in various modes.2

    Whatever of this there was at first fell upon Governor Phips. On some complaints arising as to his performance of such duties Washburn says a Court was created in 1694 consisting of a Judge, a King’s Advocate, a Register and a Marshal.3 But as appears by a letter of Lieutenant-Governor William Stoughton to the Lords of the Privy Council, no judge had been appointed and commissioned in September, 1696, and the Lieutenant-Governor adjudicates upon some fishing vessels that had been brought in as prizes by privateers.4

    There are no Admiralty records for this early period found upon which to fall back as ultimate authority. Washburn says that the first judge whose appointment he can ascertain was Wait Winthrop, commissioned in 1699 over the Northern District, as it was called, consisting of New York, Massachusetts, Connecticut, Rhode Island and New Hampshire.5 Douglass says the same. The Commissions ran from the King, under the broad Seal, or the Warrant of the Lord High Admiral,—in reality from appointment of the Lords Commissioners of Admiralty.

    The jurisdiction of the Courts was extensive, but is best shown by the records. The Court sat without juries, and where no express Acts of Parliament existed governing the cases before it, was governed by the Civil and Maritime law. An appeal lay to the Court of Delegates in England. No salaries were fixed, and the compensation depended upon the fees for a long period—till 1769, as Washburn gives it; but apparently the salary of the Judge, Auchmuty, was named in 1767 and increased in 1769. The Province at an early date took into its own hands the regulation of the fees. By Chapter 7, Acts of 1716–17, a fee system was established. Some question having arisen whether this was within the province of the General Court of the Province, it was referred to Paul Dudley the Attorney-General, who decided it was within its power, “more especially if the fees of said Court of Admiralty are either uncertain or grievous.”1 The General Court had already, by Act of 1692–93, Chapter 37, established the fees in the other Courts of the Province. Douglass gives the succession of judges, and Washburn follows him.2

    Winthrop was succeeded by William Atwood, 28 October, 1701, whose district took in also the Jerseys. He was followed by Roger Mompesson in April, 1703, but in the same year the district was divided, and a new Commission was issued to Nathaniel Byfield over Massachusetts, New Hampshire, and Rhode Island. Mompesson held office till his death, 2 January, 1714–35. Byfield, appointed December, 1693, continued in office till 1715. John Menzeis succeeded Byfield, bringing his Commission with him and arriving here 24 December, 1715, and taking his seat in the following March. He died at Boston 20 September, 1728, at the age of seventy-eight.3 Robert Auchmuty was appointed Judge pro tempore by Governor Burnet, according to Douglass. Judge Byfield was again commissioned 25 November, 1728, though his Commission was not received till 10 April, 1729, when he took the oaths of office, and remained till his death 6 June, 1733, at the age of eighty. Robert Auchmuty followed him and held the office till 1747, when he was superseded by Chambers Russell, dying in 1750.1 Chambers Russell was appointed Judge over the same District of Massachusetts, Rhode Island and Connecticut in 1747, and held the office till his death at Guildford, Surrey, England, 24 November, 1766. On the death of Russell, Robert Auchmuty the younger was appointed Judge in April, 1767, and on 6 July, 1767, was commissioned as Judge over all New England at a salary of £300. His Commission was renewed in March, 1769, and his salary increased to £600. He held office till the Revolution, and, one of the proscribed, left the country for England in 1776.

    Among the names of the Deputy Judges as given are Nathaniel Byfield in 1699; Thomas Newton, 1701–08; Nathaniel Hubbard for Rhode Island; George Cradock, 1747, who resigned in 1766 on account of his years and infirmities, and died at eighty-seven, 26 June, 1771;2 and William Reed, 1766. Brief biographies are given by Douglass and by Washburn of the incumbents of the offices, several of whom also held judicial appointments under the Province. One of the extracts from the Records at the end of this communication shows Thomas Steel to have been appointed in 1722.

    The extent of the Northern District varied: at first it included New York, Massachusetts, Connecticut, Rhode Island and New Hampshire; then New Jersey was added; New York and New Jersey were not long after withdrawn; and finally it embraced Massachusetts, New Hampshire and Rhode Island only.

    A change in the organization of the Admiralty Court seems to have been contemplated and partly carried out in 1764, when Dr. William Spry was appointed a Judge of Vice-Admiralty for all America. On his arrival in Halifax he fixed his headquarters there for “any province of America,” and by proclamation set the times for holding his Court. The next year he contemplated removing to Boston and entering upon the duties of the office there, as Supreme Judge of Vice-Admiralty. But this seems never to have been done, and in 1767 he was made Governor of Barbadoes, so that at all events his incumbency as a judge was of short duration.1

    Beside the regular Vice-Admiralty Courts for general admiralty business there were also special commissions convened from time to time for the trial of piracies committed upon the high seas. Douglass gives some account of these, styling them Justiciary Courts of Admiralty.2 Their constitution varied somewhat in the different Provinces. In Massachusetts this Commission usually consisted of the Governor, Members of the Council, the Judge of the Vice-Admiralty Court, the Commander of the Royal Vessels of War on the Station, the Surveyor of the Customs for the Northern District, the Collector of Customs; sometimes it seems to have been specially constituted, and occasionally officials from other Provinces appear to have taken part. Dr. Douglass characteristically does not hesitate to criticize the constitution of the regular Courts of Vice-Admiralty:

    A Sole judge, without a jury, in Cases of high Consequence; and this Judge too frequently appointed at Random, seems to be an Error in the Constitution. It is true there may be an Appeal to the Court of Delegates in Great Britain.1

    The crime of piracy was evidently very common, especially in the earlier years of the Province, when it so frequently appears as a branch of Admiralty jurisdiction. Some of the cases have become historically famous, and live not only in the law but also in the literature of the times. The trial of John Quelch in 1704 has become one of the celebrated causes. It was made the subject of an interesting communication to this Society by our associate Mr. Goodell.2 It was held before a tribunal made up of the Governors and the Lieutenant-Governors of the Provinces of the Massachusetts Bay and New Hampshire, the Judge of Vice-Admiralty in each, the Chief-Justice of the Superiour Court of Judicature, the Secretary of the Province, Members of the Council of Massachusetts Bay, and the Collector of Customs for New England. It was convened in the old Star Tavern in Hanover Street. A full account of the trial has been given by Mr. Goodell in his Notes to the Province Laws,3 and he has made an exhaustive and learned examination and discussion of various questions involved in it, touching law and procedure. His account is marked by his usual indefatigable research, keen analysis, independent criticism, legal and historical learning, and characteristic ability. The account is another illustration of the value of his Notes in that great work, and of the loss which has been caused by the restrictions in this direction made necessary in the later prosecution of the work under the stricter construction put upon the original Act authorizing the publication of the Province Laws and Resolves.

    There was another trial for piracy, that of Robert Munday, at Newport, Rhode Island, before a jury in the local tribunal, in 1703, where some questions seem to have arisen as to its legality, likewise discussed by Mr. Goodell.4

    Legal questions of various sorts were apparently not infrequent in such trials, and were discussed with more or less warmth in. various quarters. Judge Sewall seems to have had doubts on many points, as appears in his Diary and in letters. He hesitated on the evidence in the Quelch case.1 He questioned the legality of sending Kidd to England for trial,2—a matter of vital interest to Kidd by reason of the difference in the penalty.

    Washburn3 cites also three courts held by Special Commission for the trial of pirates,—one in Newport in 1723, where the Commission consisted of William Dummer, as President, Samuel Cranston, Nathaniel Paine, Addington Davenport, Thomas Fitch, Spencer Phips, John Menzeis, then Judge of the Vice-Admiralty Court of Massachusetts, and Thomas Lechmere; a second in 1746, held in Faneuil Hall, presided over by Governor Shirley; and a third in 1769, consisting of Governor Bernard, Samuel Hood, the Commander of the Ships on this station, Lieutenant-Governor Hutchinson, Robert Auchmuty the younger, then Judge of the Vice-Admiralty Court, Andrew Oliver, Secretary of the Province, Robert Trail, Collector of Customs at Portsmouth, and John Nutting, Collector at Salem.

    The last has a special interest from the fact that John Adams was of counsel for the prisoners, and that he afterward improved the occasion in a characteristic account of the trials. Nearly fifty years later, with a memory as fresh and a narrative as clear and vivid as if of an occurrence of yesterday, in a letter to Jedediah Morse 20 January, 1816, he gives the story: the indictment of four seamen of Marblehead for piracy and murder in resisting a press-gang from the Rose Frigate, on board of a ship of Mr. Hooper of Marblehead, in 1769, just before the recall of Governor Bernard:

    When in law, truth and conscience, the commander of the Rose Frigate ought to have been prosecuted for piracy and murder on the high seas, in illegally sending a pressgang to enslave freemen, and compelling them in self-defence to destroy their invader and intended destroyer; or in the better language of the boatswain of the Rose Frigate, “to deprive honest men of their liberty.”

    He then describes the affray, the death of Lieutenant Panton and the hand to hand fight; the trial, with its incidents, the legal struggle, the pleas to jurisdiction, the demand for a jury, etc., all overruled; and the mysterious outcome of the whole:

    What has become of the records of this Court, whether they have been sent to Halifax or to London, whether they remain in any repository in Boston, or whether they have been burned like most of the records of this world, I know not.

    He is especially severe on Hutchinson for his share in this trial, which he says “accelerated the catastrophe of the 5th March, 1770;” but this seems to be unjust, for the explanation given by Hutchinson apparently clears up all the mystery of the case, and puts him in an attitude very different from that attributed to him.1

    The frequency of piracy in the earliest years is indicated again by various Resolves of the Provincial Legislature, among them a Resolve (1719–20) ordering a new trial on the petition of Christopher Taylour, setting out a judgment having gone against him by default in the Superiour Court of Common Pleas in 1717, at a time when he was “taken & in the hands of Pirates in the West Indies & uncapable of making his Defence;”2 and another where reference is made to the “pirates who then infested this Coast”—in granting an allowance to persons who had been impressed by order of the Government to serve in an expedition for the capture of pirates.3 And again (Laws of 1724–25, Chapter 14) a Resolve for an allowance to Andrew Harradine and others, the petitioners, who had been taken prisoners by Capt. John Phillips of the Sloop Squirrel, and risen and taken possession of the piratical craft, and brought the Captain and his crew into Boston, “where they have Received a just Sentence to Suffer the pains of Death;” granting £224 and a special grant of £30 to Harradine and three others for special merit in the affair.4 And also a Resolve the next year (1725–26, Chapter 131), for an allowance to the keeper of the gaol “for the charge of keeping William Taylour and William Phillips, two persons Convict of Piracy, but pardoned by his Majestie, from May 5th 1724 to June 8th, 1725.”1 Such legislation is perhaps most frequent just about this time.

    It was in the first quarter of the century that piracies seem to have been most frequent, and references most often found in various quarters to pirates, piratical depredations, expeditions in pursuit, trials and executions. They appear in Judge Sewall’s Diary, in the newspapers of the day, especially in the News-Letter, and in contemporary writings, and there is some incidental mention in the records of the Admiralty Court.

    Reference has already been made to the trials in the Court of Assistants in the later days of the Colony. In the Inter-Charter period the “Modest Inquiry &c.” in its defence of Dudley, gives him the credit of having effectively cleared out such malefactors from the New England coasts. On the records during the Inter-Charter period there is a single record touching piracy, which is as follows:

    Dom. Rex & Whitaker and Shivorick.

    Thomas Whittaker & Nathaniell Shivorick standing comitted upon suspicion of Piracie & no Evidence appeareing to prosecute, nor any direct matter to charge them upon relateing to ye same were ordred to be discharged of theyr Imprisonment giveing Bond to be of the good behaviour &ca.2

    In the Suffolk Court Files there are also many papers touching cases of piracy.3

    In the Index to the Province Laws, Volume VIII., is given a list of the English Statutes relating to piracy and crimes upon the high seas. Under the Statute 28 Henry VIII., Chapter 15, it was provided that the trial of pirates should be held within the realm and before a Commission of Oyer and Terminer and a Jury. The Provincial Statute of 1696, Chapter 4,1 followed largely the Statute of Henry and fixed a trial in cases of “Piracy and Robbery upon the Sea,” mainly as if committed upon land, before a Commission therein provided for with a jury, within the Province, settling the penalty as death, if the offence was attended with murder. This Statute was practically superseded, however, by the English Statutes.

    In consequence of delays occurring under the earlier Statute a more summary mode of trial was provided for by that of 11–12 William III. before a special Court without jury; and the crime was made capital. Statute 1 George I., Chapter 11, gave the right to try piracies in the British Colonies in America under the old Statute of Henry VIII.2

    In the interval after the Revolution broke out and before the establishment of Massachusetts as a free and independent State, various Acts were passed by the General Court establishing Maritime Courts and regulating their jurisdiction and procedure.3 At first such courts were mainly prize courts, later they were to deal with questions of seamen’s wages, salvage, and the usual matters of Admiralty jurisdiction. An appeal lay to the Superiour Court of Judicature and to the Congress. The civil law was to be followed where no special provision was otherwise made. They sat without a jury, though in certain controverted questions of fact a jury might be brought in.

    At times there was more or less friction between the Superiour Court of Judicature and the Courts of Admiralty, in consequence of the power claimed by the former to issue writs of Prohibition to restrain what it considered any undue exercise of jurisdiction by the latter. This was not unnatural, considering the difference in the constitution of the Courts, and the source of their authority, each jealous of its own prerogatives; and some political history is involved with the controversies. The officers of the Crown, too, took offence at the exercise of such a power, and the Province suffered some complaint in consequence. Dummer in his Defence of the Charters demonstrates the legal existence of such power, its necessity in preserving the liberties of the people, and claims that it was never improperly exercised.1 The legal source of this power is thus given by Dummer:

    The rights of the Courts of Common Law within the Province of the Massachusetts to restrain the excesses of the Admiralty jurisdiction, are not derived from their Charter, but from subsequent laws of the Province, confirmed afterwards by the Crown.2

    Whether the instances of its use were so infrequent as he claims would seem open to doubt. It would appear that it must have been exercised on many more occasions than he says, but only a careful investigation and a search of the records would reveal the actual fact. He may have meant only those cases which were important in themselves or involved some important and disputed point of law, disregarding those of lesser consequence.

    There is the famous case of Scollay v. Dunn, reported in full in Quincy,3 with subsequent Notes—where the arguments of Counsel and the opinions of the Judges are given. Judge Sewall refers to a case where the writ was issued:

    Jan. 29. 1716/1717—Superr Court at Charlestown held by the 5 Justices with their new Comissions from Govr Shute. . . .

    The afternoon was taken up with the Admiralty cause. Mr. Auchmuty and Smith for the Libel, Mr. Dudley and Vallentine against it. Court unanimous in the Prohibition.1

    This is evidently the case of Thomas Hutchinson and others v. Daniel Wybourne, where the final writ to Judge Menzeis of the Vice-Admiralty Court is ordered to issue.2 There is also the earlier case of John Oulton and others v. John Stacy and others,3 where the writ was issued. In the same volume is another, that of Robart Manderson, sailor, v. John Hughs;4 and in John Hilman and others, complainants,5 reference is made to the issue of a writ to the Admiralty Court on 12 November, 1720, but the record of that case does not appear.

    In some of these cases the ground of the application and of the determination was that the cause of action arose in Boston, and not upon the sea, and that jurisdiction lay only in the local Courts.

    Sewall refers to another case in 1725, though the case itself does not appear on the Records of the Superiour Court:

    Decr 17, 1725.

    Judge Davenport and Judge Quincy came to me with Mr. Rolf about a Prohibition in Mr. Robinson’s Admiralty Case.

    ’Tis to be Try’d at Charlestown Court.6

    There is a case in the Admiralty Records,7 House v. Gibbs, where Mr. Auchmuty pleaded to the jurisdiction of the Court. Nothing is said in the record about a Prohibition, but in the margin under the title of the case is written Prohibition. The Court, however, proceeded with the case.

    In the case of Edward Durant v. Court of Admiralty, the plaintiff presented an “Information and Suggestions” by his counsel John Read for a Writ of Prohibition, setting out that one James Scolly, an officer of the Customs, styled a Waiter, “preferred a Memorial to Thomas Lechmere, Esqr, Surveyor Genl, &c,” and “another to John Menzys, Esqr, Judge of Vice Admty, on account of abuse to himself sd James Scolly,” and that a libel and complaint by Lechmere and Scolly had been brought against the plaintiff, and praying “that a final Prohibition be awarded forbidding the Judge of the Court of Admiralty to hold plea of this cause, 14th June 1723.” The Superiour Court on 6 June issued a temporary writ and on 7 June, “after a full hearing,” a final and peremptory Writ of Prohibition.1 As the case does not appear on the Admiralty Records, the Court evidently obeyed the writ.

    A letter from Samuel Shute to Lieutenant-Governor and Acting Governor William Dummer, of which a copy was given at the time, touches on the disagreements and collisions:

    St. Jamess, June the 5th, 1726– . . .

    The affair between the Judges of the Province, and the Officers of the Admiralty and Customs, will be quickly brought to a Conclusion.

    It seems very strange on this side the water that the Judges should support any of their proceedings by Acts of Parliament that were made before New England was settled; or any Acts where the Plantations are not mentioned within the Act.

    For where they are not specified, the Laws made in England cannot affect them, one way or the other.

    SamL Shute.2

    Bearing on this subject is a copy of a “Memorial of the Admiralty and Custom House Officers,” dated at Boston, 8 October, 1730, “To Gov. Jonathan Belcher Vice Admiral of His Majesties Provinces of the Massachusetts Bay in N. E. &c. &c,” signed by—

    • Nathaniel Byfield J. V. Adm.
    • Ja. Stevens Surveyr General
    • RobT Auchmuty Advo. Genl
    • John Jekyll, Collector.
    • John Boydell Regr
    • Wm Lambert, Comp.
    • Cha. Paxton Marshall
    • Jona. Pue, Surveyr & Searcher
    • Wm Fairfax, Collector,

    complaining of the indifference of the Provincial Judges to breaches of Acts of Trade, and the “incroaching proceedings of such Judges.”1

    The Admiralty records for the Provincial period, now extant or at least accessible and in the form of regular records, are far from complete. The gaps possibly could be filled to a considerable extent by research in the Massachusetts Archives. Among the records now in the Supreme Judicial Court are five books, which after drifting about in devious wanderings brought up a few years ago in the Library of the Boston Athenæum. These were transmitted to the United States District Court for Massachusetts, by which not long ago through the courtesy of Mr. Justice Gray of the Supreme Court of the United States and of our associate Judge Francis C. Lowell they were sent to the Supreme Judicial Court, among whose records they have at last found their proper and legitimate abiding place. They bear the marks of age and hard usage and consist of “Records of Admiralty,” Book No. 2, 1718–1726; a second volume “At a Court of Vice Admiralty holden at Boston,” 1726–1733; a third “At a Court of Admiralty holden at Boston,” 1739–1745; a fourth “Admiralty Book & Acc’ of Sales,” July 22, 1743 to 1765, which contains no records; and the fifth “At a Court of Vice Admiralty holden at Boston,” 1765–1772. They are full of most interesting matter and in them lies much of the history of Admiralty for that period. The first volume, the earliest, is missing, and the dates above show many gaps.

    Some extracts have been made from one of the volumes before mentioned, not so much for their importance as cases, as to indicate something of the variety and extent of the jurisdiction exercised, beside the more common cases involving breaches of trade laws, violations of treaty stipulations, frauds on the revenue, seamen’s wages, collisions, and similar matters, that come up in Courts of Admiralty; and some also for a certain curious character or interest of their own.

    The first is a case somewhat curious as showing the enforcement in the Province of a very ancient royal right, and also the fact that in those early days whales still frequented Massachusetts Bay and that the industry of whale fishing was of value. According to Blackstone—

    Another ancient perquisite belonging to the queen consort, mentioned by all our old writers, and therefore only, worthy notice, is this; that on the taking of a whale on the coasts, which is a royal fish, it shall be divided between the King and queen; the head only being the King’s property, and the tail of it the queen’s. De Sturgione observetur, quod rex ilium habebit integrum: de balena vero sufiicit, si rex habeat caput, et regina caudam. The reason of this whimsical division, as assigned by our Antieut records, was, to furnish the queen’s wardrobe with whalebone.1

    In passing, it may perhaps be questioned whether the “Antient records” were as sound on natural history as on common law.

    Again he refers to the King’s right to royal fish, as a branch of his ordinary revenue, when either thrown ashore or caught near the coasts, the important regard attached to it in ancient times, its origin, and the claim and allowance of it in the Statute “de prserogativa regis” (17 Edward II., Chapter 11), and also the distinction between whale and sturgeon before mentioned.2

    Somewhat earlier than this case, one of the complaints made against Governor Dudley was the claim made by him under this ancient right:

    (Under a Pretence of drift Fish) what Whales are taken by Her Majesty’s Subjects, he takes from them by Force, not giving them the Liberty of a Tryal at Common Law, but for his own Ends, decides the Matter in Admiralty, where his Son Paul is the’ Queen’s Attorney and Advocate, thereby encroaching the whole to themselves, a thing never heard of before, and very much to the Prejudice of Her Majesty’s good Subjects there, and that without Remedy.3


    Lord High Admiral vs. Bassett

    At a Court of Admiralty holden at Boston before the Honble: John Menzeis Esq Menzeis Esqr. July 11th: 1719~

    June 5th. 1719 James Smith Esqf Exhibited an Information in behalf of the Lord High Admiral of Great Britain or the Right Honble the Lords Comissrs. for Executing that office against Wm. Bassett of Sandwich within this Province for a certain Royal Fish called a Finback which was ejected by the Sea near that place as ꝑ Information on file more fully may appear. The Information was filed and allowed and Publick Notifications & Advertisements Issued out for all Persons pretending any right or Interest therein to enter and maintain their respective Claims betwixt and the 9th day of July next ensuing or they will forever be excluded: Accordingly Messrs. Joshua Attwood Elisha Parker and Obadiah Buttler lodged their Claim as on file and had a Summons for Witnesses to appear on the 9th of July aforesaid in order to support and maintain their Claim. On the day aforesaid the Court was opened and the Information read Mr. Auchmuty for the Claimers moved for further time in regard their Witnesses were not come, whereupon the Judge continued the Case to the 11th. Inst. and being on that day called. Mr. Auchmuted [Auchmuty] moved for longer time which the Advocate General opposed and moved for Judgement according to the terms of the Libel; and the Judge pronounced this Decree Vizt.

    Having considered this Libel and that tho’ it be more than a year and a day since the Seizure of the Finback libeled no Person hath appeared and Instructed any Intrest therein albeit Several Dyets and Continuations have been Indulged for that effect I therefore Decern Decree and Declare that the Same belongs to the Lord High Admiral as one of the perquisites of Admiralty and Decree Col. Bassett to deliver or hold compt for the value thereof to the Governour of this Province as Vice Admiral and find the value thereof Subject and liable to the Costs of Suit taxed to four pounds eight shill~ & 4d.

    Sic Subscribitur

    J. Menzeis J. Adm:1

    Att~ John Boydell Regr.

    There are several other cases in the same volume (Records of Admiralty, Book No. 2) where the same right was claimed and the drift whale decreed to be a perquisite of the Lord High Admiral.




    26 May, 1719, fol. 32.

    “A Certain Whale Cast ashoar on Martha’s Vineyard”—



    DYER &c.

    19 November 1722, fol. 122.

    A Libel in behalf of the Admiralty exhibited by John Valentine, the Advocate General,

    “Complaining that the Defendts well knowing that a Whale was seized as a drift whale and condemned in this Court, did afterwards cut from the sd Whale a Quantity of Blubber.”




    14 June 1723, fol. 145.

    To recover the proceeds of a drift Whale taken off Martha’s Vineyard—




    23 August, 1723, fol. 154.

    “Against a drift Whale come ashoare about Scituate or Cohasset”—

    Another case appears where the claimants prevailed against the Admiralty.


    At a Court of Admiralty holden at Boston before the Honble John Menzeis Esqr.

    March 29th. 1720.

    High Adml vs. Whale

    January 1719. Mr. Valentine Exhibited a Libel in behalf of the Lord High Admiral against Capt. Lobdell for a Whale drave on Shoar at the latter end of January or begining of February last past on Nantaskett als Hull Beach. The Information was allowed to be heard on the last Munday in March at 4 a Clock in the afternoon and in the meantime Citations and Publick Notifications were published for all persons Interested therein to appear at the time prefixed accordingly on the 28th day of March the Court was opened and the Information read and Ezekel Cushion put in a Claim in behalf of himself and others wch the Judge examined into, and on the 29th. Currt. at 3 a Clock in the afternoon

    The Judge declared the Whale was no perquisite of Admiralty and that it properly belonged to the Claimors & ordered them to pay the Costs in the first place & then the acct. of Charges which they allowed to be just out of the value.

    Sic Subscribitur

    J. Menzeis J. Adm.1

    Att.~ John Boydell Regr.

    There are also a couple of cases where a controversy arose between persons as to their rights and interest in captured whales, in one of which there is a recognition of a possible right in the Admiralty, which, however, was not actually claimed. Both illustrate the style of proceeding in the Court of Admiralty.


    Griffin & Compa. vs Thomas, & alios

    At a Court of Admiralty holden at Boston before the Honble. John Menzeis Esqr. February 25th. 1718

    February 19th Samuel Griffin Exhibited a Petion in behalf of himsef and Company Setting forth, That your Petitioner in company with others being at work on a large Whale on the 27th day of November last on the High Sea about a league from Cape Anne, the same did mortally wound in Several Places, but by reason of Stormy Winds and night coming on, they lost sight of her, leaving an Iron in the Body of said Whale with a Warp, Drug and Buoy~ That on or about the 10th day of December following the said Whale was found dead by Gideon Thomas, Arthur Low, and Robert Standford on this Coast near Marsh-field in the County of Plymouth, and yr Petitir having claimed her and fully made out his just right & property by giving unquestionable Marks of his having killed her in Company with Others at the time and place aforesaid left her in the Custody of said Persons to be by them Cut up and the produce to be disposed of as your Petitioner should direct. And whereas your Petitioners right to the said Whale is controverted by said Salvers, notwithstanding the prmisses, he humbly prays your Honr wou’d be pleased after due Citations and Monitions Issued out to all Persons concerned to hear and allow his Claim as above and by your Definitive Decree the said Whale to him and Compa: to adjudge as being by him and them killed on the High Sea, with such an allowance for Salvage as the Law in such Cases requires &c

    The above Petition was filed and allowed to be served and heard the 25th. Inst at 3 a Clock P.M. and the Judge Ordain’d Notifications to be fixed up in the Town house in the usual Manner which was Accordingly done and also advertised in the Publick news paper at the Instance of Mr Smith who was advocate for the Petitrs. on the 25th Inst. aforesaid at the time appointed the Court was opened and the Defendts: were called all whom appeard Except Sandford as also all other Persons were call’d by the Marshal that pretended any right or Intrest in said Whale. Mr Valentine sd. that he appeared in behalf of the Vice-Admiral and moved that the Kings property might be determin’d (said Whale being then under Seizure) before any Persons right therein is determined. Mr. Smith said it was the Mans own Petition and not brought in by him by way of Libel and that the King takes claim when no Person proves a right and that the Petitr. can try his right with no other Persons but the posessors. Mr. Auchmuty on the same side with Mr. Valentine sd the Whale was Seized in behalf of the King and that there ought to have been Citations Issued out in his behalf and that these Defendts ar made out of Colour & amuzement after more Debates as on file, several Depositions were taken on behalf of the Petitionr. and the Defendts: declared the[y] durst not deliver up the Whale because she was under a Seizure; Mr. Smith reply’d that cou’d not alter the Property, and that the Defendts: ought to be compelled by a Decree of this Court to deliver up the Whale to the Petitr who had the sole property and possession therein. Thereafter the Court was adjournd to the 26th Inst. at 3 a Clock P.M. and being again opened at that time Mr Smith moved for a Decree whereupon the Judge pronounced the following Interlocutory Vizt.

    Having heard seen and considered this Petition with what is alledged on behalf of the Petitioner and the Defendts. acknowledgement and declaration as on file, as allso the allegations of his Majestys Intrest in the Whale Acclaim’d, and being therewith and with the Evidences adduced in the Case Maturely advised I find it proved, that the Petitioner and Company gave the Mortal wounds to the Whale in Controversie and whereof she dyed, I find also that by an Agreement between the Petitioner and the Defendants who had found her dead on Shoar, that they the Defendts: were to break her up and to be accountable to him for the produce Put in regard the Vice Admiral hath granted a Warrant for her Attachment that the produce may remain Secure untill his Majestys Intrest therein (as being a frift Whale) be determin’d, And that the Bone & Oyle are not as yet wholy prepared and Try’d for use I supercede to Adjudge and Decree the same to belong to and be Accountable for to the Petitioner until the 10th day of March next; and allows to the Defendts: to Summons John Sable that he may then appear in Court and alledge what he can he being the Person Imploy’d by the Vice Admiral in that affair as Water Bayliff; and also Ordains the Register of Court to acquaint his Excellency of the foresaid Dyet, that his Majestys Advocate General or such others as his Excellency shall think fit may be appointed to appear and plead his Majestys Intrest therein (if he any have) at that Dyet, with certification &c and Ordains the Defendts or Others to retain the possession as they now have it Untill the said Day; and finds and Declares the Defendts: liable to the Costs of this Suit taxed to £8 „ 2 „ 6 and Decrees them to pay the same and to have retention thereof in accompting for the produce primo low~ Sic Subscribitur

    J. Menzeis J. Ad:

    Accordingly the Court was adjourned to the 10th of March and John Sable and others were Summonsed to appear on that day and the Court being opened it was adjournd to the 11 Inst. because it was Charlestown Court and the Lawyers cou’d not attend, on the 11 Inst. at 7 a Clock A.M. the Court being opened Mr. Smith Insisted no Person cou’d appear in behalf of the King in this Court without his consent and argued very Strenously on that head, whereupon Mr. Valentine declared he appear for one Clark then the[y] proceeded to a further Tryal and several Depositions were taken in the Case upon Oath, after which Mr. Valentine moved the Case might be continued till the next morning at 7 a Clock in regard Clarke one of the Principal Evidences was not Come but was Immediately Expected; accordingly: the Court was further adjourn’d till the 12th Inst. at the time aforesaid when Clark was three times Solemnly called but did not appear. Thereafter the Judge pronounced the following Definitive Decree Vizt.~

    Having reasumed the Consideration of the Case together with the Oaths of the Witnesses and other Writts produced as Extant on file I Adhere to the former Interlocutory finding the Petitr. killed the Whale in Controversy; and find and declare his right thereto; and Decree the Defendts: to deliver to the Petitioner the whole produce of the Whale as belonging to him; and find that Thomas Clarke hath no right thereto and in regard the Defendts: did acknowledge the Petitioners Intrest and that the same was Intrusted by him wth. them to be prepared and try’d, that they ought to be liable to no part of the Charge of Prosecution, but that the Petitioner ought to pay the same and Decern & Decree him accordingly to pay the Costs taxed to £8 „ 2 „ 6 (as aforesaid) Reserving to the Petitioner to Insist against the other Competitors for relief of what proportion of the Expence he hath been put to since pronouncing the first Interlocutory as accords ~ Sic Subcribitur

    Att~. John Boydell Regr.

    J. Menzeis J. Adm.1


    At a Court of Admiralty holden at Barnstable before the Honble: John Menzeis Esqr. February 4th 1720.

    Davis &ca. vs Sturges &ca.

    January 23 Robert Robinson Esqr Exhibited a Libel in behalf of Seth Davis of Barnstable Harpeneer and Jonathan Davis of the same Place Steersman whale Fishermen, and others their Partners against Thomas Sturges and Joseph Dimick of Barnstable aforesaid Whale Fishermen, which Libel was filed and allowed to be heard at Barnstable on the 1o of February at 2 a Clock p. m. and warrants Issued out accordingly. At the time and Place appointed the Court was opened and the Parties being present the Libel was read and Imports in Substance. That your Proponts: being on the 9th. of January in a whale Boat with four Persons more upon the High Seas not far from Barnstable a Fishing for Whales between the said Barnstable and Cape Codd at that time upon the High Seas your Propont: Seth Davis being Harpeneer with his Harping Iron struck and wounded a large Cow Whale by means where of your Proponts. Possessed themselves of the said Cow Whale and to which said Harping Iron their Main Warp was well fastned and tackled and the said Whale being very large and strong your Proponts. were Obliged to call to the Defendts who were in another Boat near them for their assistance is taking the said whale and at the same time proposed to them that they should have an eight part for their pains and trouble (which they accepted of) and the said Whale in her Agonies & Strugling with your Proponts: so Intangled the said Wharp about the Arm of one of your Appel: Men which was in the same boat with them that she broak his Arm And the said Defendts. at the desire of your Proponts and upon the terms aforesaid Did set in with your Proponents to work in killing of the said Whale and soon after she dyed and was brought on Shoar at Barnstable aforesaid by your Appelts: and the said Defendts: Sturges and Dimick and they Instantly cut up the said Whale together. Notwithstanding which the said Defendts: have Unjustly taken the said Whale into their Possession and Detaine the same from your Proponts: to whom of right she properly belonged &ca The Defendts: have Unjustly taken moved for time wch was allowed to the 2d Inst. at which time the Court was again opened and Mr. Otis for the Defendt. moved for further time, and upon Mr. Auchmutys appearance in Court it was adjourned to the 3d Inst. at 8 a Clock A. M. at which time the Court was opened and the Parties appeared with their Advocates and Evidences who were all Examined upon Oath whose Testymonys are Extant on file And After a long and full hearing on both Sides the Court was adjourned to the 4th Currt. on which day the Judge Decreed as follows

    Having considered the Libel and Plea thereto given in by the Defendts: together with the allegations and Declarations of both Parties as emitted by them, as also read heard and considered the Oaths and Depositions of the Evidences and others adduced in the Case, and being therewith and with the Grounds of the Several Claims to the Property thereof maturely advised, after hearing of the whole allegations answers and Replications made by the Attorneys on each side I find it proved That Jonathan Davis and Compa. on the day libeled struck the whale in Controversy before any other came up, and that their Iron was fast to her and whilst so under their Power; they called to Thomas Sturges & Compa. to come and assist them to kill for which they offered ⅛ part, and that Immediately after the call he came in, but before he could get up so as to put in his Iron also, by Lamberts Arm in Davis’s Compa. being broke, the Warp was let Slip I find it also proved That Jona. Davis and Compa. did continue in the pursuit for some small time in Compa with Sturges and then went on Shoar with the wounded Man, and Mr. Sturges continued in the pursuit, and that Jona pursuit, and that Davis and Compa: did Speedily within a small time set out again to pursue their Game, and were Informed that Sturges had struck and killed the Whale with the assistance he had called in. I find also that Davis’s Warp all the while remained fast to the whale, and that as having a right of Property he did work in bringing the whale to Land. I find also that Sturges persisted in the pursuit till the Whale was killed and was the first Boate that Discovered her on the Eleventh day, and that Sturges in absence of Davis had called in two Boats to his assistance after he had struck the whale to which two he promised ⅛ part. And upon the whole after deliberate Consideration of the various Circumstances of the is Case and having regard to the Custom amongst the Fishermen I Declare and Decree ⅝ parts to pertain to the Plaintiffs and to be delivered or to be accounted for by the Defendts: if disposed of, and ⅜ parts to pertain or belong to the Defendts: in full of their Interest therein, and that with the burthen of ⅛ promised to the two assisting Boats called in by him and find that each of the Parties had Probabilem Causam litigandi and therefore that the Costs of Court & Suit as the same are taxed Extending to Seventeen pounds Seventeen Shillings and Eightpence is to be deducted out of the ⅞ parts, paid by the Plaintiffs & Defendts: Proportionally according to their Interest therein. As also I Decree five pounds to be paid to Samuel Lambert towards the Defraying the Expence of his cure and as a Moderate gratification and acknowledgemt. for his Misfortune to be paid out of the 8 parts proportionally and after the same manner I Decree the Expences of cutting up and preparing the Oyle to be paid out of the whole 8 parts proportionably and as to the Plaintiffs & Defendts: their own Expences and the Extraordinary Charge they have been put I find them respectively liable thereto without relief from the other.

    Att~. John Boydell Regr.

    J. Menzeis J. Adm.1

    There is a case (28 June, 1720) having a sea tinge of piracy about it, where the petitioners, alleging—

    That on or about the 13th of April last in the Harbour of Cape Porpus als Arrundell, they Surprized and Seized a Sloop called the Sarah & Samuel in the Possession of and under the Command of Sundry Pyrates, which happens to be claimed by Sundry English Gentlemen at Philadelphia [and] Praying that in Consideration of their good Service, Expences and Disburstements, that they may be allowed a just and proper Salvage, as is Customary in like Cases &c.—

    there is entered an elaborate decree finding the sloop and cargo liable to salvage, and distributing the proceeds.2

    Another extract is a copy of the Order issued by “His Majesty in Councill,” upon the representation of “Capt. Thomas Smart3 Commandr of His Majesty’s Ship the Squirrel,” which will serve as an illustration of certain modes of procedure and the relations of the New England Courts to the Crown.


    At the Court of St. James’s ye 9th. May 1719.


    The Kings most Excellent Majesty

    Lord Chancellor

    Earl of Lincoln

    Lord Viset. Cobham

    Lord President

    Earl of Westmoreland

    Lord Torrington

    Lord Privy Seal

    Earl of Carlisle

    Mr. Comptroler

    Lord Chamberlain

    Earl of Radnor

    Mr. Vice Chamberlain

    Duke of Montrose

    Earl of Berkley

    Mr. Secretar Mr. y Craggs

    Duke of Roxbourge

    Earl of Holderness

    Mr. Chanr. of yr Dutchy

    Duke of Manchester Earl of Hallifax

    Earl of Ilay

    Lord Cheif Justce. King

    Marqs. of Annandale

    Earl of Taukerville

    Mr. Hampden

    Earl of Hallifax

    Earl of Stanhope

    Mr. Wills

    Upon reading this day at the Board a Memorial from the Commissrs. for executing ye office of Lord High Admirall of Great Britain &c. dated the 2d. of Jany. 1718 in ye words following Vizt.—

    It having been represented to us by Capt. Thomas Smart Commandr. of His Majestys Ship the Squirrell appointed by us to attend on ye Government of New England, that having Seizd. at Canso on ye 5th. day of Octor. last, and brought with him to that Government two french Vessells which were fishing & trading there Contrary to ye 5th & 6th articles of yr treaty of Peace & Neutrality in America one of wch. vessells is a Brigantine, called ye Katherine, and ye other a Sloop Named ye Abigail, als Latrois Amis, and that notwithstanding both of them have been condemned at ye Court of Admiralty there, as Lawfull Prizes or Seizures, and Confiscated wdth there Loading to his Majesty & ye Said Capt. Smart as Captor allowd to dispose thereof, after appraisemant, pursuant whereunto he took possession of them, The Governour of New England hath arbitraryly endeavoured to take them from him, and after ye Decree of ye Judge of ye Admiralty, Sent the Marshall of the Vice Admiralty aboard, By Virtue of a Warrant under his own hand, and Seale, to take them out of his possession under pretence that his Security was not Sufficient and that the Country must be answerable, under which pretence as the Captn. represents, he Hopes to procure a Grant of them from his Majesty, alledging that what Service he had done, was perform’d by his Orders and that of the Council of New England: We do most Humbly propose unto his Majesty, that Since the said two vessells, have been taken by Capt. Smart & try’d & Condemned by ye Court of Admiralty in New England, His Majesty will be graciously pleas’d to extend his Bounty to him ye Said Capt. Smart & ye officers & Compy of ye Sd Ship ye Squirrell By permitting him to dispose of the Vessells with their Cargoe & all things belonging to them & to grant them ye whole produce thereof, to be divided in ye Same Manner as was done ye last warr, as an Encouragement to them for the service they have performed, & to other Commandrs. & officers of His Majestys Ships to do their best Endeavour, to do ye Like for ye future, and that His Majesty will be also pleas’d to send his Commands to ye Governour of New England to Cause ye Vessells, with everything that belonged to them to be forthwith restored to Capt. Smart, that so, he may be at Liberty to dispose of them to ye use of himself, Officers & Ships Compy. accordingly: which is nevertheless most Humbly Submitted to his Majesty:

    Admty. office By Command of their Lops 2d. Jany. 1718 J. Burchett

    J. Jennings W. Chetwind

    Jo. Cockburne, Jno. Norriss

    Chas. Wager.

    His Majesty in councill taking ye Same into consideration, is pleased to approve thereof and pursuaut thereunto, to order, as it is hereby ordered, that the Said two vessells, taken by Capt. Smart Commander of His Majestys Ship ye Squirrell, and which were tryed & Condemned by ye Court of Admiralty in New Engd. be forthwith restored to Capt. Smart and that he be at Liberty to dispose of the said vessells wth. their Cargoe & all things belonging to the same, and the whole produce thereof be divided among ye officers & Compy. of ye said Ship Squirrell, in ye same manner as was done ye Last warr, as an Encouragemt for ye service they perform’d in taking ye said two Vessells: Whereof the Governour or Commandr in chief of New England for ye time Being, and all others whom it may concern, are to take Notice, and Yeild due Obedience to his Majestys pleasure herein signified:

    Robt. Stales.1

    The earlier story of the case is found “At a Court of Admiralty holden at Boston before the Honble John Menzeis Esqr October 13th 1718,” in “Rex vs. Sloop Abigail als Les trois Amis,” on the hearing of a libel under “the 5th and 6th Articles of the Treaty of Peace and Neutrality in America Concluded between the Crowns of England and France the 16th day of Novembr, 1686”—whereby the subjects of each are prohibited to trade and fish within the dominion of the other.1

    There is a still earlier case under the same title,—at a Court holden 1 August, 1718,—on an Information under “An Act of Parliamt made in the seventh and eighth years of the Reign of King Wm 3d Intituled An Act for preventing frauds & regulating abuses in the Plantation Trade.”2

    Whether it is the same vessel is not wholly clear; in each case the vessel is a French sloop; there is a similarity in the name of the master, which in the latter case is Martin Détchevré and in the former Martin Chevré; and where the plea put in by Auchmuty and Valentine sets out “That the vessel was leaky, came into the Port in distress had a Survey from the Governour and she was condemned thereupon, and broak up as unserviceable.” The cargo indicates a different employment and the alleged fate of the vessel seems to raise a question, but whether it was a refitting or a re-christening, either follows close in date.

    Another is a Libel or Information by the Collector of Customs for a forfeiture of sundry articles of merchandise under an earlier English Statute. It has also an interest as showing the status of negroes in the Province at that time.


    Province of the Massa. Bay New England

    Rex vs 2 Negroes &c

    At a Court of Admty:: holden at Boston before ye: Honble: Jno. Menzeis Esqr: Novr. 10th: 1721.

    1721 Nov. 8th John Valentine Esqr. Advte: Genll. Exhibited a Lybell or In formation in Behalf of ye: King, the Govr: of sd: Province & John Jekyl Esqr: Collector of ye: Customs for ye: Port of Boston in said Province Whereas in the month of May last past there was Seized @ Barnstable & other Places within the same province Two Negroes, Four Cask of Brown Sugar two Casks of Cocoa & two Pateraroes not being entered according to ye: direction of ye: Statute of ye: 14th: Caro: 2d Wherefore the Same is Forfeited And it is Pray’d on behalfe of His Majty: &c that ye: prmisses be decreed & adjucated as Confiscate by ye: Honble: Court to be divided according to Law, as in Such Cases is Usuall Wch: was allowed to be heard on the 10th: Currt: & Notifications were Issued out accordingly but nobody appearing upon Proclamation being made—

    The Judge Decreed Conformable to ye: Libel, and ye: Effects were sold by Publick Vendue for £99 „ 11 „ 0 as per Acca: thereof on file Vido Case Lechmere vs Wines & Brandy But ye: Charges arising there on are very Considerable as may be Seen ꝓ sd. Account

    Att~. John Boydell Regr1

    There appears in the Records a receipt signed by Samuel Shute for the Governor’s share, for “⅓ of the Neat proceeds Arising upon 2 Negros” and the groceries sold at public vendue, and the receipt of John Jekyll, the Collector, of his two-thirds of the proceeds of the sale.2

    Another record shows the mode of appointment of the Deputy-Judge of the Vice-Admiralty Court.


    Province of the Massach. Bay New England

    Thomas Steel Esq: Deputation

    At a Court of Admiralty holden at Boston on the 22d: day of September 1722. The Deputation appointing Thomas Steel Esqr. Deputy Judge of Vice Admiralty for the Province aforesaid was read & is hereafter Recorded

    To all People unto whom these Presents shall come John Menzeis of Leister, in the County of Middle-Admiralty in the Provinces & Colonys of the Massachusetts Bay, New Hampshire, Rhoad Island Providence Plantation & the Naragansett Country or Kings Province in America & the Territories thereon Depending Sendeth Greeting. Whereas His Sacred Majesty George by the Grace of God of Great Brittain France & Ireland King Defr. of the Faith &c. By His Royal Commission under the Great Seal of the High Court of Admiralty of England bearing date the Twenty Sixth day of August One Thousand and Seven hundred and fifteen and in the Second Year of His Majestys Reign, Hath Constituted and Ordained me the said John Menzeis His Majestys Commissioner and Judge of the Admiralty in His Majestys Provinces & Colouys before Mentioned. Together with power of Deputing & Substituting in my Stead in the Premisses one or more Deputy or Deputies as I shall think fitt with all Fees &c thereto belonging According to the Custom of the said Court of Admiralty of Old Used & Accustomed Commanding & Strictly enjoyning all and Singular Lords Peers Barrens Governours Knights Mayors Justices of the Peace Sheriffs Stewards Keepers of Goals & Prisons Bayliffs Constables & other Officers & Ministers and all other His Majestys Liege People in and through His Majestys Provinces and Colonys &c & maritime Parts thereof & thereunto adjoyning to beaiding & assisting and Obedient in all things as is becoming upon pain & Perill as shall follow thereon, as by the said Commission relation thereunto being had more fully plainly & particularly Appears. Now know ye That I the said John Menzeis Having Sufficient knowledge of the Ability & good Qualifications of Thomas Steel of Boston Esqr any great trust & Confidence in his Integrety to Discharge that Trust. By vertue of the said Commission to me Granted as aforesaid Have Appointed Constituted & Surrogated and Do hereby for and during the time that I shall think fitt Appoint Constitute & Surrogate the said Thomas Steel my Deputy as aforesaid in & through the said Province of the Massachusetts Bay & Maritime Parts of the Same and thereunto adjoyning Together with all and Singular Powers authorities Sallarys Fees Profits advantages & Commodities to the said office within the said Province of Massachusetts Bay & Maritime Parts of the Same in any manner belonging and acording to the Custom of the said Court of Admiralty from of Old Used & Accustomed In Witness whereof I have hereunto set my hand and Seal the Thirty first day of August in the Ninth Year of the Reign of our Sovereign Lord George by the Grace of God of Great Brittain &c King And in the Year of Our Lord One Thousand Seven hundred Twenty & two.

    j. menzeis & a Seal.

    21. September 1722. Capt. Thomas Steel took and Subscribed the Oaths appointed to be taken Instead of the Oaths of Allegiance & Supremacy and Declaration.


    Thomas Fitch

    of the council1

    Jona: Belcher

    The Records also show the appointments and Commissions of various other officers and the mode of procedure in each case. There is the Commission of the Marshal, Arthur Savage, recorded at length at the Court, 13 October, 1724.1 It is given in the name of his Majesty at London 1 July 1724, in the tenth year of George I., under “Sigillum Magnum Supremse Curiae Admiralitatis Nostras Anglise.” It is in sonorous though somewhat difficult Latin, wherein the combination of the classic and the vernacular relieves the monotony and gives a certain jerky animation of its own.

    Not long after follows the Commission of the Deputy Marshal, Daniel Goffe, dated 6 November, 1724, and read at the Court 13 November; it is under the hand and seal of the Marshal; but deriving his authority from an humbler and provincial source, it finds the simple English tongue sufficient to invest him with all the duties and powers of his subordinate office.

    There is also the Deputation of Arthur Savage as Deputy Register, under the hand and seal of John Boydell, Register, presented at a Court of Vice-Admiralty before the Honorable John Menzeis, Judge of said Court, 30 October, 1722.2

    At a Court held 1 November, 1723,—

    Archibald Cumings, Esq., produces a Commission appointing him Agent to Receive the Rights and Perquisites of Admiralty, which was read: Thereafter the Judge tendered the Oath De fideli as appears by the Minute Book, and ordered the Commission with the Instructions Annexed to be Recorded, which are as follows vizt

    The Commission is in Latin from his Majesty, with four folio pages of instructions annexed in English.3

    These records show the formalities observed, and also prove the existence of Minute Books, now no longer extant, corresponding to the Dockets of the present day.

    The extracts which have been given have been taken from the earliest book of Admiralty records now in the Supreme Judicial Court. The later books of record contain matter of like character. These volumes are full of interest and cover the field of Admiralty proceedings. They are unique in character; they have a tinge of the formalities of the Civil Law. There is an elaboration, a minuteness, a formality, wholly unlike the concise and terse records of the Common Law Courts, while the fulness of detail turns the dry record of legal proceedings into an entertaining story of human action and interest.

    To treat with any approach to completeness or thoroughness the history of Admiralty Jurisdiction in the earlier days of Massachusetts would require much research and careful study and a comprehensive survey of the whole field; for the subject is not wholly clear in the earlier years, the time of the Colony, and somewhat obscure and more or less complicated in the times of the Province. It would need a thorough and minute examination of all the Massachusetts Archives, of the records of the Admiralty Court, of official records and documents, contemporaneous writings, the accounts of the newspapers of the day, after they began to be issued and to supply so much material for history, and all kindred sources of original and authentic information with a discriminating review of the many histories;—also a study of the relations of the Dependency to the Mother Country, and likewise of the political conditions and relations subsisting at the different times, and all sorts of questions springing out of them; as well as of the facts and causes of the legislation affecting Admiralty Jurisdiction and maritime matters in general.

    From the original and the trustworthy material thus secured might be worked out an authentic and satisfactory history of Admiralty Jurisdiction in the Colony and in the Province of the Massachusetts Bay.

    This paper is merely what its title purports,—a few Notes.1

    Mr. Henry H. Edes communicated some memoranda concerning Joseph Boucher de Niverville, the commander of the French and Indians in their attack in 1747 on Charlestown, New Hampshire, and his great estates in Canada, which had recently been received from Mr. Benjamin Suite of Ottawa. Mr. Suite is not only the highest authority upon all matters of Canadian history and genealogy, but on more than one occasion has evinced great interest in this Society and its work.1

    The Hon. John Hay of Washington, D. C., was elected an Honorary Member, the Hon. William Babcock Weeden of Providence a Corresponding Member, and Mr. Winthrop Howland Wade of Dedham a Resident Member.