Robert Treat Paine Papers, Volume 3
The Barer Capt. Jones will hand you Capt. Reeds Evidence allso Capt. Dennis’s Letter to his owners for Your perusell. I have wrote to Mr. Lebaron at Plimoth for a Copy of the Whole Case and Desired him to Forword the Same to you. Capt. Jones Knows of Severil people that has heard Capt. Dennis Say Sence he first Came Hoome that he Expected 365Capt. Jones would Shear more of the Countes of Eglington than he Should had he not best to git these people Sworn. The Gunner of Capt. Jones Mr. David Arnold by name, will make oath to the Inclosed Evidence both in & out of Court if Called on. He Sold Three Quarters of a Shear before he Saild & now holds one & a Quarter Shear which he will Sell. Please to give me your Opinion weither it will do for me to purchess as well as any other person or will it be best to Git Some other person to purchess it. Least it may be plead that I bot. it in order to purchess his Evidence, their is Severil others will make oath to the Same or Simmuler— but as their Evidenth’s will not be Recd. unless Are Render’d Dis Interested please to advise me how many its best to take or Git others to take and Weither the price they Git for their Shears had best be the Full amount of what it will Come to provided an Equitable Distribution is Recoverd according to men & Guns Considering the wt. of Mettle, or weither its best to have the Consideration much Less, & how much. I am Very Glad you will be here to Attend the Tryel. I heard Sum tim past you was gone to Congress. Please to mention what Day You propose Seting off for Barnstable as I will Indever to See You. If you think of Any thing Material to ask the Evidences please to Mention it and allso weither its best to have them at Court or will Sighting one of the owners of Capt. Dennis who now Lives in Rehobeth to be present here at the takg. the Evidence be as well. The Letter from Dennis to be handed you by Capt. Jones you will not Loose Nor Miss Lay, tho this was not made use of before on Acct. of their being Sumthings in it that look like Divideing the prize Equally between the two Sloops Viz half & half But as I had not the Least Expectation of their attempting to Recover so much as half much more the Whole, I did not attend to the famus Letter or Whatever You May Call it from Dennis, as to Evin Cary it with me, but if we Cant do better a half a Lofe will be better than no Bread, tho According to all Law & Custome that Ever I heard of In aney part of England or America Excepting the State of the Massachusetts the Retalliation ought to Strike Full Two thirds of the price & the America but Scant one Third. Mr. Cole is old and Goutey. I have Concluded not to Imploy him to go to Barnstable, but to Depend Wholley on You & Mr. Anger but am willing to do as You think best. I am Sr. Your Humble Servt.,
for My. Self & Mr. Green
PS. Had the prize Got in here as was Intended by both Captins as the priveteers both belonged here, their never would have bin a Word Said or Aney Attempt made that the America ought to Strike the whole Prize. All the Dispute would have then bin to Assertain the propotions, which by all Custome would have bin according to the Wt. of the Mettle and the Number of men on bord Each Privateare.
Had not the Enemy tackn possession of newport as they did the prize would Certinly have came here. Quere weither this ought not to weigh Sumthing in the Tryel In Your State. If I mistake not the Resolves of Congress Ses that the Condemnation or Distribution of Prizes Shall be According to the Customs of Nations, but at the Tryel at Plymouth the Resolves Could not be Got, or would not be Lent.1
This case was appealed to the Superior Court of Judicature at Plymouth, May 1777, with William Cushing, Jedediah Foster, and Nathaniel Peaslee Sargeant on the bench. RTP noted in his diary for May 12: “Mr. J. Brown & Mr. Green here”; May 13: “Sat out for Barnstable in Co. wth. them got to Sandwich by dark. spit snow”; May 14: “Rode to Barnstable fair Superiour Court sat there”; the court ended on May 16.
Isaac Jones “for himself & others claimants” sued Adam Babcock for recovery of a portion of the claimed prize. The Jury found “that the Brigt. Countess of Eglington at the time of her capture was a merchant vessel, and that she together with her cargoe & appurtenances then were the property of some of the Subjects of the king of Great Britain (other than the Inhabitants of Bermudas & New Providence or Bahama Islands) and that she was Jointly captured by Willm. Dennis Commander of the armed sloop America his marines & mariners on board the same sloop, & Isaac Jones Commander of the armed Sloop Retaliation his marines & mariners on board the same sloop, and the Jury thereupon find & determine, that six seventh parts of the said Brigantine her cargoe & appurtenances shall be to the use of the Libellants & the remainder of seventh part to the use of the Claimants” [SCJ Minute Book, microfilm, MHS]. Isaac Jones, representing all the interests of the ship Retaliation, further appealed this case in a memorial to Congress, which was read on Aug. 2, and referred to committee. The committee ordered William Dennis to appear and show why the memorial should not be granted (Journals of the Continental Congress, 8:598, 603). Although there was no follow up printed in the congressional journals, a note in the Superior Court minutebook says that the appeal was finally unsuccessful.