of her, And in her Passage for Rhoad Island on the 4th of
October was again taken By a Spanish ship, who plundered her the
second time and Carrying with them the Mate, One hand and a Boy, on
the 5th of October Aforesaid was prevail'd upon to Give the Briganteen
with the Remains of her Cargo, etc. to the said Smith the Master, who
brought her to Boston, and now the Owners of the English Privateer and
Capt. Norton and his Crew demand one half for Salvage according to the
Stat. In that Case (as they say) provided, and if they are Entitled to
the Same is the Sole Question. In determining of which I shall Premise

1st. Its a Rule in Law that the Right of Changeing Property by force
of Arms is so Odious that in the takeing of Goods if by any
Possibility The Right Owner may have Restitution the same shall be
done, and th'o a Larger time than twenty four hours happen between the
Capture And Recapture, and so may pernoctare[3] with the Captor yet
Restitution may be made.

[Footnote 3: Continue through the night.]

2 ly. The Sense and Understanding the Law hath of Privateers, vizt.
That they Are such as receive no pay but go to war at their Own
charge, and Instead of pay leave is granted to Keep what they can take
from the Enemy, and alth'o such License is Granted yet may they not of
their Own heads Convert to their Private use Prizes before the same
have Been Adjudged by Law Lawfull to the Captors.

3 ly. There are Two Adjudged Cases that may Contribute to the Clearing
up this Point. The First is in the War between England and Holland.[4]
a Dutch man of war takes an English Merchant man and Afterwards an
English man of war Meets the Dutchman of war and his Prize and in
Aperto Prelio[5] regains the Prize. there Restitution is made, the
Owners paying Salvage, _for had it been a Lawfull Prize to the
Recaptor the Admiral wou'd have had a Tenth_. The Second is where a
Ship Chartered in his Voyage happens to be taken By An Enemy, and
Afterwards in Battle is Retaken by Another ship in Amity, And
Restitution is made and she proceeds on her Voyage. the Contract is
not Determined. th'o the taken[6] by the Enemy divested the Property
out of the Owners, Yet by the Law of War the Possession was
defeazable, and being Recovered by battle Afterwards, the Owners
became Reinvested, so the Contract by [fiction] of Law became as if
she never had been taken and so the Entire freight Became due.

[Footnote 4: It is difficult to identify these ca