Robert Treat Paine Papers, Volume 4
Inclosed I have the honour to send you the papers and plea in the cause of Hammat et al vs. Warren et al. I do not see how the question whether the members of the navy Board are liable personally for what they did officially without setting forth all the facts in a plea in bar could ever have been brought before the Court. For on a demurrer the Court could not know that the members of the navy Board were public officers because tho perhaps the Court might consider the appointment by Congress of certain persons bearing the same name with the defendants to be a board 209 of Assistants &c as a public law yet it could not appear that they and the defendants are the same persons. Neither could the Court from any thing that appears in the record know that they acted in their official capacity—that the vessel was chartered for public use and or employed for the purpose for which she was chartered.
I believe Sir when after you have read the declaration you will suppose that we shall be safe in this mode of conducting the cause. Sir there is not a single feature of law in any part of the declaration it arising I conceive from the great haste in which it was drawn. If they should take issue on any part of our plea and obtain a verdict against us judgment must be arrested on motion. Should they demur to our plea they committing the first fault must have judgment against them.
The letter from the marine committee is signed by Richard Henry Lee. It will I conceive be necessary to prove to the Jury that there was such a committee then in existence and that Mr. Lee was one of them. Will the printed journals of Congress be sufficient for this purpose or must we send to the Secretary of Congress for an attested copy of their appointment. The Navy Board undoubtedly have their own appointment attested by the Secretary.
I hope to see you at Boston in the course of this week and receive your advice respecting the mode of conducting the cause and your ideas of the principles on which it is to be defended.
The orders to Captain Barne are dated prior to the date of the charter party of affreightment. I suppose the vessel was chartered some time before the execution of the instrument.
Q: why is not
1 how came both parts of the Charter party in our possn.
2. Congress set at Baltimore
then the sd. James and John lawfully & fully empowred in their Capacities aforsaid, and in Compliance with & agreable to the directions of the said marine Cmtte and as Servants to the Congress of the United States of America and by their Special direction & for their only use and that they the said James & John witht. any neglect of theirs have not been possessed of any monies belonging to the said Congress, since any Charterparty
demand made by them the said Abraham & William on 210 the said James & John in Consequence of the said Charterparty wherewith they could pay the same and the said James is ready to verify wherefore he prays Judgt. if the said Abraham & Willm. their actions aforsaid ought to have & maintain:
any became due in Consequence of the Charterparty aforsaid order made by the said James & John in behalf of Congress as aforsaid wherewith they could pay the same
transacted and performed made & executed the Charterparty aforsaid & transacted and performed all the matters & things Relative thereto above discribed and that they were lawfully & fully impowred so to do and that this said Abraham Hammet & Wm.
Every thing here is perfect quiet; and Sir Guy1 at New York, seems equally undetermined respecting the future opperations of the Campaign, what they will be is very uncertain, perhaps the flagillation our good Friends have met with in the West Indies, may prevent any thing great on our side, tho’ we wish here to have another slap at ’em.2
Our Army are now better cloathed than they have been during the War, & make a most martial appearance, but our numbers will be greatly deficient if we are called seriously to Action. Public affairs feel, very sensibly, the want of compliance in the several States, in raising money for this year. Our Contracts at this moment are supported on the future supplies of the States. I wish every exertion in our State, tho’ I know their poverty.
Inclosed you have an Order on Mr. Shattuck & Co. for 20 Dollars; more money will be sent by the first safe oppertunity.
If my Daughters have come to your house, I wish Mrs. Paine would, with your consent, supply them with all the little necessaries they may want, if Mrs. Paine cannot sell the silk at Hastings’s, she may send it to, or git it made up for Mrs. Cobb,3 whatever money you may expend for the Girls shall be immediately repaid.
Give my Love to your neighbour Russell,4 Wife & Family, & sincere affection to Mrs. Paine, & believe me ever your Friend & Servant
Do write by the next post, so that I may know whether you are all alive.
Sir Guy Carleton (1724–1808) was named commander-in-chief in North America on Mar. 2, 1782, to effect an orderly withdrawal of British forces after the surrender at Yorktown (Oxford Dictionary of National Biography).
Admiral Sir George Rodney had defeated Comte De Grasse in the “Battle of the Saints” off Dominica on Apr. 12.
Eleanor (Bradish) Cobb (1748/9–1808) was the daughter of Ebenezer and Eunice (Cook) Bradish, keepers of the Blue Anchor Tavern in Cambridge. In a letter to RTP on Mar. 13, 1767 (see 2:400–402), Cobb wrote that “I am not troubled with a wife every night, for one visit a Month is, or must be, at present Satisfactory.” Ten days later their first child was born. Eventually there would be ten more children, but there was “little affection” in the marriage, “largely because of Eleanor’s prevailing mental depression.” She died in Taunton in 1808 (Sibley’s Harvard Graduates, 16:338).
Joseph Russell (1735–1795), auctioneer, also lived on Milk St., Boston. He served as town treasurer in the 1790s until his death (Thwing Index).