The Three Friends

The Case of the "Three Friends": An Incident in Maritime Regulation during the
Revolutionary War
Author(s): Randolph B. Campbell
Source: The Virginia Magazine of History and Biography, Vol. 74, No. 2 (Apr., 1966), pp.
190-209
Published by: Virginia Historical Society
Stable URL: https://www.jstor.org/stable/4247204
Accessed: 01-10-2018 15:47 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Virginia Historical Society is collaborating with JSTOR to digitize, preserve and extend
access to The Virginia Magazine of History and Biography
This content downloaded from 119.94.104.34 on Mon, 01 Oct 2018 15:47:51 UTC
All use subject to https://about.jstor.org/terms
THE CASE OF THE "THREE FRIENDS"
An Incident in Maritime Regulation During

the Revolutionary War
by RANDOLPH B. CAMPBELL
ON February I9, 1782, the British schooner Three Friends with a cargo
of British merchandise arrived at Edenton, North Carolina, under a flag
of truce and reported to the naval officer of the port. Edenton, located on
Albemarle Sound near the mouth of the Chowan River, was at that time
one of the leading ports of North Carolina. The ship was hardly anchored
before it was boarded by Captain Cornelius Schermerhorn of the privateer
Grand Turk and then by Captain Madett Engs of the privateer Dolphin.
The privateer captains at once sailed their prize up the Chowan and Black-
water Rivers to South Quay in Virginia. Libel proceedings were then
begun in the Virginia admiralty court at Williamsburg. Upon receiving
news of these events, Governor Thomas Burke of North Carolina, unsure
of the legality of the capture and highly incensed at what he regarded as an
insult to the sovereignty of his state, threatened to use force to recover the
Three Friends, and to punish the offending captains. Governor Benjamin
Harrison of Virginia immediately promised to do what he could to redress
the grievance and sought to maintain friendly relations between the sister
states.'
This brief sketch serves to introduce an incident that is not only interest-
ing in itself, but has significance for the history of the last years of the
Revolutionary War. It demonstrates in some degree the exaggerated atti-
tudes of state sovereignty that hindered the war effort of the United States.
The case of the Three Friends also brings attention to the difficulties faced
by Congress in the attempt to use and control privateers in the naval war
against Great Britain. Even more important is its relation to the increasing
illicit wartime trade between some Americans and the British, a most
vexatious problem to leaders of the new Confederation in 1782.
Commerce in British merchandise was alarming to the American gov-
emnment, because it drew off the small amounts of specie that remained in
the country or that had been received recently from French allies. Such
* Mr. Campbell is a graduate student in history at the Universit of Virginia.
1 A brief summary of this incident is to be found in William T. Hutchinson and William M. E.
Rachal, eds., The Papers of James Madison (Chicago, 962- ), IV, I I4-115. It is in note I to the
letter from Governor Benjamin Harrison to the Virginia Delegation in Congress, March 23, 1782.
The Case of the "Three Friends" I9I
trade was thought to be a positive factor in encouraging

continue the war. They had suffered a disastrous defeat
October 178I, but not even preliminary peace terms were signed until
November 1782. In this situation of continuing belligerency, illegal trade
with the enemy did little to strengthen the sagging morale of many Ameri-
cans. Commenting on this general problem in a letter to James Madison
in January I782, Edmund Pendleton wrote: "Wisely & Prophetically did
honest Genl. Gadsden say to Congress in I74 'Take care, or yr liberties
will be traded away'."2
The illegal commerce was carried on by several methods, and the Three
Friends was clearly involved in one of them, the abuse of a flag of truce.
A British ship on a supposedly legitimate peaceful mission to the enemy
and, therefore, flying a flag of truce would enter a colonial port and quietly
dispose of a cargo of British merchandise to American buyers before depart-
ing unharmed by virtue of its status as a "flag." There were many such
legitimate missions. Flag vessels were used to return American prisoners,
supply British soldiers held prisoner in the colonies, and to transport
Loyalists who had been given permission to leave a state. Obviously any
of these missions could be a cover for illegal trade. In the case of the Three
Friends, Dr. Robert Lenox, one of the owners and the principal passenger,
had once lived in North Carolina and hoped to return to that state. There-
fore, he claimed a flag of truce, and then proceeded to abuse his privilege.3
The privateer captains, acting on the basis of rules and regulations
established by the Continental Congress between I 775 and 178I, actually
made prize of the Three Friends before any trading took place. Neverthe-
less, this particular case can be well-documented as an attempted abuse of
the type that concerned Congress in 1782. Furthermore, it illustrates the
ease with which relations could be strained between two states in the first
years of the Republic. The action of Schermerhorn and Engs is best
understood against the background of the general admiralty legislation
enacted during the war years as well as the specific provisions against
illegal commerce with the enemy. Once this background has been given,
the incident can be explained in detail and its significance more fully
developed.
Nothing was more obvious at the outbreak of the War of the Revolution
in 1775 than the overwhelming naval superiority of the British. Although
2Edmund Pendleton to James Madison, January 28, 1782, in Hutchinson and Rachal, Papers of
James Madison, IV, 50. See also Madison to Pendleton, January 8, 1782, ibid., 22-23.
3Deposition of Thomas Bog in the Suit before the Court of Admiralty in Virginia, March 8,
1782, Executive Papers, Virginia State Library.
I 92 The Virginia Magazine
the Continental Congress did establish the A

many of the states created their own naval fo
was not contested until France entered th
circumstances it was natural that the Ameri
to prey upon British transports and merchan
for the disposal of enemy ships and cargoes
Congress in November I775.4 Privateers su
British trade and the British merchant mann
of men, money, and energy because of the
eration among these private armed vessels
stances of a weak Congress and the preva
independence and private interests, effective
from easy.5
The first attempt by Congress to provide d
teers was made in March and April of I77
explained and justified the use of privateers and
of armed vessels by inhabitants of the Un
her enemies. All British ships with their
these privateers and made legal prize in any
hear such cases would be condemned to the
In April this ordinance was strengthened an
adoption of instructions and a form of comm
private armed ships. Privateers were instructed
to inhabitants of Great Britain on the high s
low water mark" with a few exceptions such
settlers. The captured vessels were to be brou
America, where proceedings would be begun
Further instructions concerned the procedu
the prize and preserving it intact until judgm
was also to be bound by all future instruction
or those that might be passed would mean f
commission and possibly of his bond.7
The commission was printed with blanks t
of the ship, its captain, and its owners. It sp
'Worthington C. Ford, et al., ed., The journals of the Co
1937), III, 37I-375, hereafter cited as JCC.
5 Gardner W. Allen, Naval History of the American Rev
Charles 0. Paullin, The Navy of the American Revolution
Alden, The American Revolution, z775-1783 (New York,
6JCC, IV, 229-232.
7 Ibid., IV, 253-254.
The Case of the "Three Friends" I93
by Congress to the captain and noted that he had given bo

the terms of his instructions and commission or the cus
nations. The instructions and commissions were distribut
to the governors of the several states who in turn issued them
wished to operate as privateers. The state authorities
bonding provision with the new privateer and returned a
A bond of 5,ooo dollars was required for vessels of i oo t
privateers were larger.8
Thus, the Continental Congress in 1776 regulated Amer
ing with a general ordinance, specific instructions to the
commission, and a bonding requirement. During the war
lowed, commissions were given to I,697 privateers manne
58,400 men. Massachusetts, Pennsylvania, Maryland,
alone were responsible for I,569 private armed vessels.
64 commissions, while North Carolina apparently granted
In keeping with the acts of Congress, the various st
admiralty courts, which could hear cases arising under t
A court to consider admiralty cases existed in colonial
October I776 the General Assembly passed an act speci
new court of admiralty. It was to consist of three judges
Assembly and commissioned by the Governor. The court
in all admiralty cases in Virginia and was to enforce the l
gress and the General Assembly. Further guidance was to
common practice of English courts of admiralty. In the
between the laws of Congress and of Virginia, those o
take precedence in any case involving the capture of a p
whom the United States was at war. The law specified th
be followed by the court in hearing cases and in cond
legal prizes if no adequate defense was presented. The co
Williamsburg. 1
The North Carolina legislature established a regular cou
similar to that of Virginia in I777,11 The act creating th
revised during the war. Of course, it had no opportunity
involved in the case of the Three Friends. In Januar
8JCC, IV, 247-248; 251-252.
9Allen, Naval History of the Revolution, II, 7I5-7I7. These figures were tak
Records of the American Revolution, published by the Library of Congress.
'0William W. Hening, ed., The Statutes at Large: Being a Collection of a
ginia from the First Session of the Legislature in the Year 16I9 (Richmond and Philadelphia,
I809-1823), IX, 102-I07, 130-132, 202-206.
"1Walter Clark, ed., The State Records of North Carolina (Goldsboro, I886-I907), XXIV, II9.
194 The Virginia Magazine
appointed a five-man standing committee to h

decisions of the state admiralty courts. Once th
were ratified, this committee was replaced by a
of Appeals.'2
Actually the admiralty court of neither Virgin
very active, the center of the privateering interes
north. The presence of British Navy vessels in Chesapeake Bay kept
privateering by Virginians to a minimum. Govemor Thomas Jefferson with
tongue-in-cheek wrote to the President of Congress in June 1779, "a
British prize would be a more rare phaenomenon here than a comet, because
the one has been seen, but the other never was.""
The Virginia law constituting a court of admiralty was revised in May
1779, but no fundamental alterations were made. The three judges of the
existing court, Benjamin Waller, Richard Cary, and William R. W. Curle,
were continued in office. Waller and Cary were to be the judges in the
case of the Three Friends. Although Waller, a studious lawyer and teacher
of the law, came from a family of some importance and served his state in
several significant positions, he is an obscure figure in its history. His
father, Colonel John Waller, represented Spotsylvania County in the House
of Burgesses. Benjamin attended the College of William and Mary and
later read law at the office of the Secretary of State for the colony, John
Carter. He served in the House of Burgesses before being appointed to
the court of admiralty, where he was noted for seldom giving opinions in
his decisions. Later he was appointed to the state court of appeals. His
grandson, Littleton Waller Tazewell, became Governor of Virginia in
I 834. 14
On October 28, I 779, Congress created a five-member Board of Admiralty
to superintend the naval and marine affairs of "these United States."' 15 In
May I 780 this Board reported a revised body of instructions for privateers
with a new form of commission and a new bonding requirement of "twenty
thousand Spanish milled dollars." The new rules and regulations were
12 JCC, VII, 75; Samuel Livermore to the President of New Hampshire, March i 2, I782, in
Edmund C. Burnett, ed., Letters of Members of the Continental Congress (Washington, 1921-
1936), VI, 312-313.
liPaullin, Navy of the Revolution, pp. 148, 403-405; Juhan P. Boyd, et al, eds., The Papers
Thomas Jefferson (Princeton, 1950- ), III, 5.
I4Hening, Statutes, X, 98-Io2; Daniel Call, ed., Reports of Cases Argued and Decided in t
Court of Appeals of Virginia (Richmond, I803-I833), IV, xx-xxi (Call's six volumes are includ
as volumes 5-I0 of the Virginia Reports); James A. Servies and Carl R. Dolmetsch, eds., T
Poems of Charles Hansford (Chapel Hill, 1g61), xvii-xix; Andrew Lewis Rife, "The Wallers
Endfield, King William County, Virginia," Virginia Magazine of History and Biography, L
(195I), 458-460.
15JCC, XV, I2I7-1218.
T'he Case of the "Three Friends" 195
basically the same as those previously in force, although they d

size respect for the law of nations and the rights of neutrals. W
privateer met the higher bonding requirement, he declared tha
make reparation for all damages sustained by any misconduct or
able proceedings of himself or the officers or crew of his vessel.
In March i78i, upon completion of the Confederation by the
of Maryland to the Articles, Congress thought it necessary to
basic ordinance respecting captures on the seas, as well as the i
to the captains of private armed vessels. Article IX of the Articl
federation specified the "sole and exclusive" right of Congress
rules for captures and to create courts for the hearing of fina
all such cases. The passage of "An Ordinance Relative to the Cap
Condemnation of Prizes" on March 27, 178I, replaced the old
1776 and remained in effect until the end of the war. The new
provided for general reprisals against the ships, goods, and subje
Britain by the fleet and ships of the United States as well as b
ships commissioned by letters of marque or general reprisal
vessels were to be brought for judgment into "any of the courts of
that now are or hereafter may be established in any of these Un
by the authority of the United States in Congress assembled."
vision would allow the removal of prizes from the waters of one
admiralty court of another. Obviously such an event would strai
between the states involved. The ordinance went further to pr
"intercourse, correspondence or dealings" between citizens and
of the United States and the subjects of Great Britain. The exe
the states were called on to enforce this provision.'7
New instructions for the commanders of privateer vessels wer
on April 7. Apparently these instructions were necessary only
the new ordinance, since they differed in no significant way fr
I 776 and I 780. There was a warning to pay a "sacred regard" to
of neutrals and the customs of nations concerning maritime activ
of war. The commission and bonding requirement also remai
mentally the same."8
The warning in the ordinance of March 27, I78I, against an
with subjects of Great Britain shows an awareness of the proble
trade in British merchandise. Naturally there were many other
6 JCC, XVI, 403-409.
17 Secretary of Congress to the Several States, June 26, 178i, in Burnett, Letters of Members
the C. C., VI, I28; JCC, XIX, 314-3I6.
18JCC, XIX, 36I-364.
I 96 The Virginia Magazine
wishing to keep contact between American

minimum. In any case, the legislative mach
motion in July 1781 to provide an act that
general provisions of the act of March conc
result was an ordinance of December 4, 178
measures against illegal commerce in British
basis for the libel action of the privateers again
The ordinance provided that after the first
It shall be lawful to capture and to obtain condemnation of the property herein
after enumerated, if found below high water mark; that is to say,
All ships and other vessels of whatsoever size or denomination belonging to an
enemy of the United States, with their rigging, tackle, apparel and furniture.
All goods, wares and merchandizes belonging to an enemy, and found on board of
a ship or other vessel of such enemy.19
On the basis of this act, when Captains Schermerhorn and Engs discovered
British merchandise being transported on the Three Friends in violation of
the legitimate use of a flag of truce, the vessel was immediately subject to
capture.
The ordinance went further to specify that after March I, I782, British
merchandise found within three leagues of the coasts of the United States
and bound for that country would be liable to capture even if it was owned
and transported by citizens of the United States or subjects of a neutral
power. In writing to Edmund Pendleton in January 1782 James Madison
remarked, "These measures had become necessary to check an evil which
was every day increasing, and which both enabled and encouraged Great
Britain to persevere in the war, at the same time that it mortifyed our ally
with daily seeing the fruits of his generosity to us remitted in payment to
the rival of his nation and the enemy of both."20
The act defined other types of captures on water that would be lawful
and explained which goods would be considered contraband. It also pro-
vided for division of the proceeds from captures made by vessels of war
belonging to the United States. The matter of division of the spoils in the
case of privateers was left to individual arrangement.
Privateers, armed with broad authority to take British ships and mer-
chandise, showed a significant increase in energy and activity in I781 and
I782. Over half of the commissions granted during the war, 933 to be
exact, were given in those two years. The British lost 625 vessels in 1781
19JCC, XXI, 11 53-1154.
20J. Madison to E. Pendleton, January 8, 1782, in Burnett, Letters of Members of the C. C.,
VI, 290, and in Hutchinson and Rachal, Papers of James Madison, IV, 23.
and 5 I 5 more in the next two years, most of them merchantm

of these were captured by privateers, but undoubtedly sizable n
The provision of instructions, commissions, and bonding requirements
gives evidence of the frequent attention paid to proper regulation of these
privateers. As the war progressed, use and control of privateers often became
related to the matter of illegal commerce with the enemy to form a broad
problem of maritime regulation. Such was the background of the incident
of the Three Friends in I782.
On February I3, 1782, the Three Friends sailed under a flag of truce
from British-occupied Charleston for Edenton, North Carolina. The
schooner carried a cargo of British-owned goods with an estimated value of
?8,ooo sterling. This cargo consisted of such varied items as broad cloths,
Dutch blankets, Irish linen, India gingham, men's and boys' black and
white beaver hats, a large assortment of fashionable silks, best ivory handle
knives and forks, pins, needles, coat and breast buttons, axes, adzes, hoes,
ginger, nutmegs, red and white wine, porter and rum. If the owner, Dr.
Robert Lenox, had been successful in disposing of this merchandise under
cover of the flag of truce, he planned, according to Captain Thomas Bog
of the Three Friends, to send to Charleston for a quantity of similar goods
left there.22
The ship arrived at Edenton on February I 9 and was boarded quickly by
Captain Schermerhorn of the Grand Turk, and within the hour by Cap-
tain Engs of the Dolphin. Schermerhorn is the more important of the two
in this case, since his prize master was put aboard the prospective prize to
sail her into Virginia.23 Schermerhorn was a New Yorker, but the Grand
Turk, a fourteen-gun brigantine, was owned by James Brade and Thomas
Walker & Company of Virginia. He had received his commission and
given bond in Virginia on October I, I781 24 An argument would later
develop over division of the spoils, but at the moment, the two captains
agreed to make prize together.
Reasons for the decision to move the captured vessel to South Quay in
Virginia are not clear. Perhaps Schermerhorn feared that connivance be-
tween local officials and the owners of the flag might deprive him of the
21 Allen, Naval History of the Revolution, II, 577, 614.
22Deposition of Thomas Bog in the Suit before the Court of Admiralty in Virginia, March 8,
1782, Executive Papers, Virginia State Library; Virginia Gazette and Weekly Advertiser (Rich-
mond), March 2, 1782, p. 3, March 23, 1782, p. 3.
23DeLositions of Jahbel Smith and John Cunn, March 8, I782, Executive Papers, Virginia
State Li rary.
24Charles Lincoln, compiler, Naval Records of the Amer
pp. 321, 273.
I98 The Virginia Magazine
prize. Governor Burke later noted that the de

of a disagreement among the privateers.25 Cap
of the sort when he appeared during proceed
admiralty. According to Engs, as soon as the
to find a lawyer to prosecute it. When he ret
already proceeded with the prize to South Qua
a precise charge, but perhaps Schermerhorn m
proceedings with the hope that he would not have to share the prize.
There is also the strong possibility that the privateers could never have
obtained condemnation of their prize in the North Carolina court. The
craft had submitted to the authorities at Edenton as a legitimate flag-of-
truce vessel, and if its purpose of illegal trade had been brought to light in
a local admiralty court, the Carolina port officials would have undoubtedly
claimed a share as the captors of the prize.
Today it is difficult to picture ocean-going vessels entering Virginia by
way of North Carolina. However, in I 782 vessels passed through Ocracoke
Inlet into Pamlico Sound and up the Chowan and Blackwater Rivers to
South Quay, a town located ninety-five miles southeast of Richmond on
the Blackwater River. The Blackwater marks the division between Nanse-
mond and Southampton counties for a space of twelve miles beginning a
few miles south of the present town of Franklin, Virginia. Due to this
inland location, South Quay was especially favored as a depot for goods
and supplies during the late years of the Revolution, when the British
effectively blockaded Chesapeake Bay. Goods landed there were moved by
wagon to Suffolk on the Nansemond River and thence down the Nanse-
mond to the James for dispersal into central Virginia. This whole trade
route was a valuable outlet for Southside Virginia.27
The capture of the Three Friends was brought to the attention of Gover-
nor Burke early in March I782. Burke's reaction can be understood only
against the trying circumstances of his administration in 178I-I782.
Thomas Burke was born in Galway, Ireland, in 1747. Coming to Vir-
ginia at the age of sixteen, he settled on the Eastern Shore where for a
time he studied medicine. Later he became a lawyer and settled at Norfolk
before moving to Orange County, North Carolina, in 1772. Burke in
25 Henry R. McIlwaine and W. L. Hall, eds., Journals of the Coutncil of the State of Virginia
(Richmond, 1931-1952), III, 56.
26 Proceedings at a Court of Admiralty at the Office of Benjamin Waller, Esquire, in the City
of Williamsburg, March 9, 1782, Executive Papers, Virginia State Library.
27Paullin, Navy of the Revolution, 455; Joseph Martin, compiler, A New and Coniprehensise
Gazeteer of Virginia and the District of Columbia (Charlottesville, I835), 237, 239.
these years was a natural revolutionary on the order of Thom

was noted for his conceit and his quickness to take offense. Wh
Norfolk he had issued a challenge to a duel. He served in the N
lina provincial congress in I775 and was a delegate to the Continental
Congress from I777-178I. He held extreme views of state sovereignty,
although he did begin to think more in terms of national power as the
Revolution progressed.28
The North Carolina General Assembly elected Burke as the third
governor of the state on June 25, 178I. Disaster came on September I2,
when he was captured at Hillsborough by a band of Loyalists led by the
notorious David Fanning. Burke was turned over to the British at Wilm-
ington. In November I781, having given his word of honor not to escape,
he was placed on parole on James Island off South Carolina. The captive
governor found himself held as a hostage for the lives of Loyalists who
might be captured in North Carolina, and also he was in constant danger
from Tories on the island. On one occasion a hidden assailant, firing from
a window, killed a companion of Burke's walking by his side. His com-
plaints were ignored by the British, so in January 1782 he escaped and
resumed the governorship of his state. The escape became more of a
disaster than the capture, because Burke had to face criticism from all
sides for the apparent violation of his word of honor. He sought to explain
his action, but such an eminent military man as General Nathaniel Greene
refused to agree that Burke's action was justified. This public censure was
inexplicable and unbearable to a man who valued highly his honor.29
Burke was one of five men nominated for governor in April 1782, but
soon declined the nomination. He took up law again and thought of moving
to Georgia to escape his shame, but he became ill and died on December 2,
1783, at thirty-six, a bitter and disillusioned man.30
Therefore, under the circumstances of early I782, Governor Burke was
not likely to deal calmly with an incident that seemed to threaten the
sovereignty and honor of his state. In addition to these circumstances, the
affairs of his administration were in much disorder as a result of the British
28William K. Boyd, "Thomas Burke," in Dictionary of American Biography, edited by Dumas

Malone and Allan Johnson (New York, 1928-1936), III, 282-283; Elisha P. Douglass, 'Thomas
Burke, Disillusioned Democrat," North Carolina Historical Review, XXVI (April 1949), 150-173.
29 Douglass, "Burke, Disillusioned Democrat," North Carolina Historical Review, XXVI, 174-
18i; Few pople realize that Burke also wrote poetry. Much useful information is found in the
introducton to Richard Walser, ed., The Poems of Governor Thomas Burke of North Carolina
(Raeigh, i96i), pp. I-I3.
30Clark, State Records of N. C., XVI, 35, 4O; Douglass, "Burke, Disillusioned Democrat,
Carolina Historical Review, XXVI, I85
military threat and his own capture. On March

the President of Congress to acknowledge letters
Tle first steps that he took with regard to
are seen in a letter sent to Governor Harrison
Burke explained the affair to some extent and
properly submitted to an officer of North C
by the privateers. The whole of his letter is
be sure of the action Burke proposed, but app
force to recover the prize vessel and taking m
ing captains. The Virginia Council of State adv
by Harrison to the Court of Admiralty enclosi
letter and requesting a suspension of proceedin
information could be obtained. The Council pointed out that this was
"a case, which, if unattended to, may possibly interrupt that harmony which
ought to subsist between the United States of America."32
Governor Harrison replied to Burke on March 9 expressing his concern
for the "misbehavior" of Captain Schermerhorn and his hope that the
incident would have no bad consequences, as it was the act of a single
individual that would not be "countenanced" by the government of Vir-
ginia. He informed Burke of the action taken by the Virginia Council and
assured him that satisfaction would be given. The remainder of the letter
was a plea that "no hasty steps be taken" that might cause a violent dispute
between the two states. If orders had been given for seizing the vessel,
Harrison asked that they be recalled, since such steps were justified only
when reparation had been refused. He concluded: "You will much oblige
me if you will send the whole Account of this affair immediately, so authien-
ticated, that proper steps may be taken to punish the Captain, and turn
the vessel over to your Court of Admiralty."33
Governor Burke appeared satisfied with this course of action. On
March i 3, he wrote to James Iredell at Edenton requesting that depositions
be taken of all the facts and circumstances from the appearance of the
Three Friends and her reporting to the commanding officer of Chowan
County until her removal to Virginia. In the meantime, Harrison wrote
again to Burke on the twelfth begging him to rest assured that "every
31 Burke to the President of the Continental Congress, March 15, 1782, Papers of the Conti-
nental Congress, Microfilm Item 172, Virginia State Library.
32 Mcflwaine and Hall, Journals of the Council of State, III, 56.
33Harrison to Burke, March 9, I782, in Henry R. McIlwdine, ed., Official Letters of the Gover-
nors of the State of Virginia (Richmond, I926-I929), III, 172.
The Case of the "Three Friends" 201
possible satisfaction shall be given." Due to bad weather, he had not yet
received the decision of the Virginia Court of Admiralty.3"
Harrison did not yet know that the March 7 letter to the court had not
arrived in time to stop the proceedings. Notice of the libel action against
the Three Friends had been posted on February 26, and the court met to
hear the case on March 6. Captain Schermerhorn brought the action before
Judges Benjamin Waller and Richard Cary. The third member of the
court was ill at this time, but under the statute of May 1779 two judges were
sufficient. The privateer captain cited the congressional ordinance of
December 4, I78I, as the basis for his demand that the ship with its cargo
be condemned and sold. Captain Thomas Bog of the prize ship was present
in the court but declined to answer the libel. Bog later declared that he
had warned the owners after the goods were on board that they would
make the vessel subject to seizure, since they constituted a violation of the
flag of truce. It was his sad story that his mate had taken account of the
cargo as it came on board and had the customs house papers relative to it.
Unfortunately, this mate had deserted since the capture. Robert Lenox,
one of the principal owners, asked for more time to prepare the case, so
the court adjourned until the following day.35
On March 7, Lenox questioned the jurisdiction of the Virginia court on
the grounds that the Three Friends had been captured in a North Carolina
port. She had delivered her flag of truce to Colonel James Blount, the com-
manding officer at Edenton, and anchored within the jurisdiction of the
court of admiralty of that state. The Virginia court overruled this plea on
grounds that would later be explained by Judge Waller and instructed
Lenox to answer the libel on the following day.36
Neither Lenox nor Thomas Clarke, the other part owner on board the
captured ship, appeared on March 8 to contest the libel, so the ship was
condemned. The marshal was instructed to sell the ship and cargo for
ready money and retain the proceeds subject to further order of the court.
At this point, Captain Engs of the Dolphin appeared with his attorney,
Henry Tazewell, and demanded part of the prize money from Schermer-
horn. He explained that they had agreed to make prize together and that
Schermerhorn had begun proceedings at South Quay while he had gone
to find a lawyer to prosecute the case. The court directed that depositions
34Burke to James Iredell, March 13, 1782, in Clark, State Records of N.--C.,-XVI, 540-54I
Harrison to Burke, March I2, 178z, in McElwaine, Official Letters, III, 174.
35Proceedings at a Court of Admiralty at the Office of Benjamin Waller . . . , March 9, 1782,
Executive Papers, Virginia State Library.
36Ibid. In 1783 Colonel James Blount was tried by a court-martial in North Carolina for his
part in the case of the Three Friends and convicted (Claik, State Records of N. C., XIX, 305,
353, 515, 52I).
of the facts in the case be taken from Capt

other men of the Three Friends and adjourne
account of the sale was returned.
Benjamin Waller replied on March 9 to t
Harrison. He enclosed an account of the he
that had been taken. Waller claimed that the
every leniency and noted that the money was
privateers until after the next sitting of the cou
in the case, he had ruled that Albemarle Soun
and North Carolina just as Chesapeake Bay wa
In any case, the ordinance of March I78I pr
brought to any of the courts of admiralty esta
Waller declared that he felt bound to enforce
"let what will interfere." He also pointed to
appeals established by Congress to correct p
a hope that Governor Burke would think this
force, especially since the United States still
case unnecessary since Schermerhorn could be
The Virginia Council advised Harrison to sen
and of the proceedings to Governor Burke. T
Harrison explained the situation and added th
the jurisdiction of the court a good one." In a
was beyond the control of the Virginia Execut
to interfere with the courts. He would ask Con
sion of Captain Schermerhorn and to order a s
The owners of the Three Friends could appeal
would not, since "she will most certainly be c
Admiralty in the Continent."39
The Governor expressed his hope that Bur
these efforts and would lay aside his intentions o
admiralty officer who then had possession. He
of such action and emphasized the need for s
British enemy. "Hannibal is Knocking at our G
repel him from our Coasts, and leave more triv
and tranquility." 40
37Proceedings at a Court of Admiralty at the Office of B
Executive Papers, Virginia State Library.
38Benjamin Waller to Governor Harrison, March 9, 178
Library.
39Harrison to Burke, March I9, 1782, in Mcflwaine, Offi
and Hall, eds., Journals of the Council of State, III, 6o-6 i.
40 Harrison to Burke, March I9, 1782, in Mcllwaine, Official
Keeping his promise, Harrison wrote to the President o

March 22 to explain the case and ask that Schermerhorn
revoked and a prosecution ordered on his bond. He no
this vessel was undoubtedly guilty of illicit trade, the rem
distant ports for trial should be stopped before innocent
to suffer because favorable testimony could not be prod
the point of capture. Therefore, he asked that the ma
more explicit on this point.4' The next day he sent detai
the Virginia delegation in Congress and instructed the
necessary amendment. If Congress did not declare specific
rights of each state extended with reference to vessels in
feared violence from clashes between states over the issue
was still on the Governor's mind when the Virginia Gener
in May 1782. In a letter to the Speaker of the House, he
gress had not yet taken action to solve the problem. The
it would be well to consider resting a controlling power
this with the Executive. Without the existence of such a
might easily become involved over the matter.43
Governor Burke responded to the Virginia proceedings
Writing to Harrison, he admitted that the principles
first protested were mistaken. This can only mean that t
evidence of the attempt at illicit trade by the Three Frie
him of the legality of the capture on those grounds.
insisted that the dignity of the state of North Carolina
by the seizure and removal of the flag after she had du
officer of that state. The action of the privateers made
state could not protect vessels in its own ports and that it
the admiralty courts of neighboring states.44
A second letter was addressed to General Isaac Gregory
Carolina Militia and reads as follows:
I find from the letters lately received from the Governor of Vir
not likely to receive proper Satisfaction for the Insult offered by the privateer in
Seizing the flag. You will, therefore, proceed to execute my orders relatively to the
privateers and their Captains. Settle Suspending those relative to the force to be
ready to march towards Virginia.45
41 Harrison to President of Congress, March 22, 1782, ibid., III, 177.

42 Harrison to the Virginia Delegates in Congress, March 23, 1782, ibid., III, I79, and in
Hutchinson and Rachal, Papers of James Madison, IV, 114.
43 Mcflwaine, Official Letters, III, 215.
44 Burke to Harrison, March 23, 1782, in Clark, State Records of N. C., XVI, 556.
45 Burke to Isaac Gregory, March 23, 1782, ibid., XVI, 557.
The exact terms of Burke's orders concerning

captains are not available, but a portion of a me
Carolina General Assembly on April I 9, 178
content. The Governor submitted a number of
the whole affair. He declared that he intended
Executive Authority to have punished the office
in so exemplary a manner, as might deter other
of this State." Burke explained further that he
to Virginia. Therefore, he had informed Govern
and the latter sought to give satisfaction in a m
beyond his power. Burke then pursued the matt
but resumed his first intention of punishing the p
However, he was frustrated by the delay occas
Virginia to give satisfaction. The privateers ha
other measures would be taken only at the direction of the General
Assembly.46 Apparently the legislature did not wish to pursue the incident.
Both Edmund Randolph, the Attorney General of Virginia, and James
Madison, a leading Virginia delegate in Congress, agreed that the action of
the privateers was an insult to the sovereignty of North Carolina. Ran-
dolph thought Congress was in violation of the Articles of Confederation
in its instructions of April 7, 178I, that allowed a prize vessel to be carried
into any court of admiralty. He believed that a "small alteration" was
necessary to eliminate this problem. Randolph also believed that the state
admiralty courts should be more withiln reach of the Congress or the Court
of Appeals. Madison thought it would be sufficient to insert a clause in the
instructions to prevent the grievance complained of by North Carolina.
Both were alarmed by the truculence of Burke. Madison believed that he
should have appealed to Congress rather than to Virginia, since Schermer-
horn was really an officer of the former government.47
The Three Friends was sold on April 2, 1782, after being advertised twice
in the Virginia Gazette and Weekly Advertiser. After deduction of the court
costs, the sale brought a total of ?3 840 to be divided between the Grand
Turk and the Dolphin. According to a rule of Congress of January 8, 1782,
a privateer captain could not claim part of a prize unless his ship was within
46 Ibid., XVI, 30. The Southern Historical Collection in the University of North Carolina
Library contains a list of twenty-one items sent to the Assembly. Unfortunately these papers have
not been preserved.
47E. Randolph to J. Madison, April I9, I782, and Madison to Randolph, May I, 1782, in
Hutchinson and Rachal, Papers of James Madison, IV, I 59-1 62, I 95-200.
gunshot at the time of the capture.4Y In this case, the D

within range and therefore legally claimed ?I920, or
money. A suit to make good this claim was brought in a V
but on April 30, 1783, Thomas Walker, representing the G
Henry Tazewell, representing the Dolphin agreed to settle the case by
setting the Dolphin's interest at Li ioO in specie.49
Relations between North Carolina and Virginia improved with the
election of Alexander Martin as governor of the former state in April 1 782.
Martin, who had friendly connections in Virginia, worked successfully with
Governor Harrison for more harmonious relations. Congress did not deprive
Captain Schermerhorn of his commission as a privateer in spite of the
request by Harrison. After the Revolution, he continued his trade as
captain of merchant vessels.50
Turning to the larger implications of the incident of the Three Friends,
we find a growing concern over the activities of privateers and a desire for
better control of them. According to Governor Harrison, there was a great
demand on him for privateer commissions for vessels belonging to inhabi-
tants of North Carolina in March and April of I782. He wrote to the
Virginia delegation in Congress to explain that because of "some abuses
that have been practiced," he had refused to issue these commissions. The
Virginia delegates were asked to inform the North Carolina delegation of
the problem and request them to send commissions, which were issued only
through the executives of the several states, to their state at once.5" Appar-
ently Harrison was quite wary of the responsibility of commissioning
North Carolina privateers to operate near the two states that had just been
upset by a dispute arising from such activity.
The commissioning of privateers was causing concern elsewhere in
America. Connecticut Governor Jonathan Trumbull sent two letters to
Congress dealing with the matter on April 24. His letters were referred to
a committee of three which reported a resolution aimed at better control
of privateer captains.52 It read as follows:
Resolved, that the executives of the several states be, and they are hereby author-
ized, on information of illegal intercourse, which bath taken place or shall take
48 JCC, XXII, I o- I I.
49Agreement of Thomas Walker and Henry Tazewell, April 30, 1783, Virginia Historical
Society; Deposition of Jahbel Smith, March 8, 1782, Executive Papers, Virginia State Library.
50Alice B. Keith, ed., The John Gray Blount Papers (Raleigh, 1952- ), I, 293.
51 Harrison to the Virginia Delegates in Congress, April 12, 1782, in McIlwaine, Official Letters,
III, 195, also in Hutchinson and Rachal, Papers of James Madison, IV, 149. It should be noted
that North Carolina was not represented in Congress at this time.
52Jesse Root to the Governor of Connecticut, May II, I782, in Burnett, ed., Letters of Members
of the C. C., III, 348; JCC, XXII, 238, n. 2.
place between the captains of any private armed vessels belonging to these states and
the enemy, or of any other mal-conduct, to suspend the commission of such captains
until the executive shall have examined into the offence; and if upon enquiry it
shall appear that the information was well founded, they are requested to report
their proceedings to the United States in Congress assembled, and in this case the
conunission shall stand suspended until Congress shall have taken order thereon.53
Copies of this resolution of May 2I were sent immediately to all the
states. Had such a regulation existed at the time of the incident, Harrison
could have suspended the commissions of the offending captains. The act
of suspension may have had little effect on the course of events in this
particular case, but at least it would have forced Congress to consider the
specific problem involved.
A more important concern for Congress in I782 was the matter of illicit
trade with the British. Vessels from Charleston flying a flag of truce as in
the case of the Three Friends were regular callers at North Carolina ports.
In May Governor Martin warned Brigadier General Alexander Lillington
of the Wilmington district to prevent the reception of flags from the enemy
by civil instead of military officers. Abuses had been reported in that area.
A few days later Martin informed Joseph Greene, the Judge of the Court
of Vice-admiralty at New Bern, that a flag brig had imported "broad cloathes,
rum, salt, and limes, &c." under the cover of exchanging some American
prisoners. Greene was instructed to investigate and stop such illegal com-
merce. Further evidence of the violation of flags to import British merchan-
dise are to be found later in 1782.54
Virginia was faced with a similar problem. On April i i, Governor
Harrison wrote to Commodore James Barron at Hampton as follows: "Be
so kind as to keep a strict eye over the Flags that come in or they will
certainly run a considerable quantity of goods into the Country."55 In May,
Harrison appointed Barron at Hampton and William Mitchell on the
York River to receive flags of truce and direct their activities. He explained
to Count Rochambeau, "without such a regulation they would probably
carry on a dangerous intercourse with some of our people which might
prove injurious to the State." Harrison instructed Barron to superintend
all flag ships arriving at Hampton, to send the governor a description of
each ship and its mission, and to take care that they brought no merchandise
with them. No flag ship was to be allowed to proceed up river without
53 JCC, XXII, 280-281.-
54Governor Martin to Brigadier General Lillington, May 5, 1782, in Clark, State Records of
N. C., XVI, 68i; Martin to Joseph Greene, May 8, 1782, ibid., XVI, 68I-682; see also ibid.,
XVI, I89, 4I8.
5 Harrison to Commodore James Barron, April x i, 1782, in McIlwaine, Official Letters, III, 194.
The Case of the "Three Friends'" 207
orders from the governor.56 Similar instructions were sent

reported the arrival in late May of nine flag ships, thus dem
amount of such activity.57
Evidence of a slightly different violation of the flag of tr
a letter from Edmund Pendleton to James Madison.
I am glad the trade intended to be commenced under cover of Flags to supply
the Prisoners is so early detected; I believe it was pretty extensively carried on here
formerly at Charlottesville & tended to poison the minds of the people in that
neighborhood by the circulation of those charms, Specie and British goods.58
Concern with this problem was not limited to Virginia and North Caro-
lina. It was part of the general situation that prompted the letters from
Governor Trumbull of Connecticut to Congress in April I782. James
Madison noted in July 1782 that trade with the enemy at New York was
especially alarming to many residents of that area.59
Beginning in 1781 the Continental Congress had repeatedly sought to
eliminate this problem. The ordinance of March 27, 178I, on the capture
and condemnation of prizes prohibited "all intercourse, correspondence, or
dealings whatsoever" with the British subjects and called on the states to
take vigorous action to suppress such contacts. This act was strengthened
in December I78I by an ordinance forbidding the importation of British
merchandise after March I, 1782, even if it was owned by a citizen of the
United States or of any neutral power. The resolution of May 21, I782,
sought to prohibit "illegal intercourse" between privateer captains and the
enemy.
The problem was not solved by these measures so on June I4 a com-
mittee of eleven, including James Madison, was appointed "to devise and
report ways and means to prevent an illicit trade with the enemy." Three
days later the original committee was discharged on the motion of Madison
and the matter turned over to a committee of five. This committee reported
on June I9. Two days later Congress passed a resolution denouncing
Britain's attempt to use its merchandise to corrupt the patriotism of Ameri-
cans, burden lawful commerce, and draw off American specie thus rendering
the payment of taxes more difficult. The act recommended that the state
56Harrison to Count Rochambeau, May 9, 1782, and Harrison to Barron, May 9, 1782, ibid.,
III, 205-206.
57Ca tain William Mitchell to Govemor Harrison, May 29, 1782, Executive Papers, Virginia
State Libay
58Pend1eton to J. Madison, April 22, 1782, in Hutchinson and Rachal, Papers of James Mad
son, IV, 171.
59J. Madison to E. Randolph, July 9, 1782, in Hutchinson and Rachal, Papers of James Madi-
son, IV, 404.
legislatures take action to suppress all illici

respective citizenry the "baneful" consequen
another ordinance was passed on July x7 to
carried on by means of "collusive captures" on the water. There is no
detailed explanation of "collusive captures," but apparently this was a
simulated capture whereby a privateer could bring British goods into port
and have them sold as prize. Then the person from whom the goods had
been "captured" would receive a share of the proceeds.61
Further evidence of concern with this problem in general and with flags
of truce in particular is found in an act passed by Congress on October 4,
1782. The purpose of this act was to firmly state the intention of thfe United
States to uphold its treaty with France and make no separate peace, an
intention that was in the process of being disregarded. In part it provided
that persons coming from the enemy under flags of truce be strictly restrained
from abusing their privileges and from all intercourse with the United States
and its inhabitants not necessary for transacting the public business on
which they were sent.62
The governors of both North Carolina and Virginia acted to comply with
the June 21 resolution of Congress. Martin, on October 6, issued a procla-
mation to the effect that all illicit trade with the enemy would be regarded
as treason.63 On October 2I Harrison sent the resolution to the Speaker
of the House of Delegates with some observations on the evils of the trade
and the ineffectiveness of Virginia's laws on the subject. The Virginia legis-
lature responded the same month with "An Act to Prohibit Intercourse with,
and the Admission of British Subjects into this State." It provided for more
careful regulation of flag vessels along the lines of the practice already
begun by Harrison and for the prevention of trade under any circum-
stances.64
Naturally the elimination of all illicit trade would come only with the
rapidly approaching end of the War of the Revolution. Nevertheless it
was considered an important problem in 1 782, one that was greatly increased
by abuses of the flag of truce such as that attempted by the Three Friends.
Little remains to be said in summary of the significance of this incident.
The war came to an end with the preliminary treaty of November 30, I 782,
60JCC, XXII, 333, n. I, 340-341; Hutchinson and Rachal, Papers of James Madison, IV, 34z,
351-353.
61JCC, XXII, 392-393.
62 Ibid., XXII, 639.
63 Clark, State Records of N. C., XVI, 424-425.
64McIlwaine, Official Letters, III, 347-388; Hening, Statutes, XI, 136-138.
which became final in September I783. Congress did not

period to prevent specifically a repetition of the dispute create
of Schermerhorn and Engs. But, at the same time, private
declined with only twenty-two commissions being gra
compared to 383 in I782.'
The whole affair points out some of the difficulties involved in the use
of privateers in the war against Great Britain. These difficulties were only
increased by the practice of issuing commissions to privateers through the
individual state governments and by allowing state admiralty courts to
hear the prize cases. The Constitution of 1787 avoided difficulties that
might develop from the use of state courts by extending original federal
jurisdiction to all cases of admiralty. Of course, a large degree of state con-
trol of privateering, as in other fields, was to be expected during the years
of the Revolution. Governor Burke's volatile character and the unfortunate
circumstances of his administration only served to heighten a reaction that
might have been expected from a great majority of state executives and
officers at the time. However, Burke's reluctance to offend Virginia while
the two faced a common enemy and Harrison's conciliatory response
prevented the worsening of a potentially dangerous situation.
65 Allen, Naval History of the Revolution, II, 7I6-717.

The Three Friends

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

The Three Friends

Hochgeladen von

Copyright:

Verfügbare Formate

The Case of the "Three Friends": An Incident in Maritime Regulation during the

An Incident in Maritime Regulation During

trade was thought to be a positive factor in encouraging

the Continental Congress did establish the A

by Congress to the captain and noted that he had given bo

appointed a five-man standing committee to h

basically the same as those previously in force, although they d

wishing to keep contact between American

and 5 I 5 more in the next two years, most of them merchantm

prize. Governor Burke later noted that the de

these years was a natural revolutionary on the order of Thom

28William K. Boyd, "Thomas Burke," in Dictionary of American Biography, edited by Dumas

military threat and his own capture. On March

of the facts in the case be taken from Capt

Keeping his promise, Harrison wrote to the President o

41 Harrison to President of Congress, March 22, 1782, ibid., III, 177.

The exact terms of Burke's orders concerning

gunshot at the time of the capture.4Y In this case, the D

orders from the governor.56 Similar instructions were sent

legislatures take action to suppress all illici

which became final in September I783. Congress did not

65 Allen, Naval History of the Revolution, II, 7I6-717.

Das könnte Ihnen auch gefallen