Phoenix Commander Joseph Cunningham Schooner 24 September 1776- Massachusetts Privateer Sloop [] Schooner

Commissioned/First Date: 24 September 1776 Out of Service/Cause:

Owners: Carter Braxton of New Castle, Virginia and [ Wil ling & Morris of Philadelphia, Pennsylvania ]

Tonnage:

Battery: Date Reported: 24 September 1776 Number/Caliber Weight Broadside 10/ Total: 10 cannon/ Broadside: 5 cannon/ Swivels:

Date Reported: 9 July 1777 Number/Caliber Weight Broadside 12/ Total: 12 cannon/ Broadside: 6 cannon/ Swivels: eight

Crew: (1) 24 September 1776: 61 [] total

Description:

Officers: (1) Prize Master John Wardwell [] Wardell ,

Cruises: (1) []Massachusetts to York, Virginia, [ October 1776] - []October 1776

(2) York, Virginia to the French West Indies, [ January ] 1777-[] February 1777

Comment on this or any page at our ©awiatsea.com-posted August 2020 --1-- (3) French West Indies to []Maine , [ March] 1777-9 April 1777

Prizes: (1) several in West Indies, [] February-March 1777

(2) Snow Nostra Senhora de Carmo e Santo Antonio (Joaõ Garcia Duarti [ Jungo Seco] ), 27 August 1777, at 38 E54 NN, 41 E00 NW

(3) Brigantine []unknown , []28 August 1777, at 38 E54 NN, 41 E00 NW

Actions:

Comments:

Massachusetts Privateer Sloop 1 (or Schooner) 2 Phoenix (Phenix ) was commissioned on 24 September 1776 under Commander Joseph Cunningham of Boston, Massachusetts. 3 She was listed as being armed with ten guns and as having a crew of sixty men. Her $5000 Continental bond was signed by Cunningham and by John Rowe and Elias Warner, both of Boston, Massachusetts. 4

By 16 December 1776 she was at York, Virginia, ready to go to sea. She was ordered to the West Indies. She was to send her prizes to Virginia or Philadelphia. 5 Phoenix arrived at a “safe port” on 9 April 1777 after a short passage from the French West Indies. Phoenix took several prizes which were sent into French West Indies ports. 6

A British intelligence report of 9 April 1777 lists a schooner Cunningham , commanded by one Cunningham, as being present at Martinique. Although Phoenix was gone by that date, this is most

1 NDAR, “Petition for Commission for William Brown to Command the Massachusetts Privateer Ship Boston ,” VI, 971-972 and 972 note; Allen, Massachusetts Privateers of the Revolution , 235

2 NDAR, “Independent Chronicle , Thursday, April 10, 1777,” 8:308-309 and 309 note; “Boston Gazette , Monday, April 14, 1777,” 8:339-340 and 340 note

3 NDAR, “Petition for Commission for William Brown to Command the Massachusetts Privateer Ship Boston ,” 6:971-972 and 972 note; Allen, Massachusetts Privateers of the Revolution , 235

4 Allen, Massachusetts Privateers of the Revolution , 235

5 NDAR, “Carter Braxton to Captain Joseph Cunningham, Massachusetts Privateer Sloop Phoenix ,” 7:497-498 and 498 note

6 NDAR, “Independent Chronicle , Thursday, April 10, 1777,” 8:308-309 and 309 note; “Boston Gazette , Monday, April 14, 1777,” 8:339-340 and 340 note

Comment on this or any page at our ©awiatsea.com-posted August 2020 --2-- likely the same vessel. She is given a battery of fourteen guns and a crew of eighty men. 7

On 9 July 1777 Cunningham was re-commissioned to the Phoenix , now described as a schooner, armed with twel ve guns and eight swivel guns. Her £ 2000 Massachusetts bond was signed by Cunningham and by John Rowe, for the owners. These were listed as Robert Morris of Philadelphia and Carter Braxton of Virginia. 8

Phoenix (Commander Joseph Cunningham) was on patrol at 38 E54 NN, 41 E00 NW on 27 August 1777. 9 Here she fell in with the 140-ton 10 snow Nostra Senhora de Carmo e Santo Antonio (Joaõ Garcia Duarti [ Jungo Seco] ), a Portuguese vessel bound from Brazil to Fayal, Azores Islands, with a cargo of sugar and leather. 11

Cunningham made a prize of the snow and assigned John Wardwell [] Wardell 12 as her prize master. Cunningham, in his orders to Wardwell, dated 28 August, noted that he had “special Orders to Capture Portugueze Vessels . . .” Wardwell was to take her to Ocracoke Inlet, North Carolina, and contact Carter Braxton at Williamsburg, Virginia, one of Phoenix ’s owners. If unable to get into Ocracoke, Wardwell was to take her to Boston, Massachusetts and contact John Rowe or Joseph Webb. In the event Wardwell took her to Boston, where she arrived about 28 September 1777. 13

The appearance of this vessel created a real problem for John Rowe. In a letter started on 29 September to Robert Morris, the other owner of the Phoenix , he said “I Cannot find out his pretence for sending her in . . .,” referring to Cunningham. Furthermore all her papers were in Portuguese. It had been suggested to Rowe to apply to the Maritime Court to take charge of the vessel until the determination of the admiralty judges reached Congress. Rowe had not heard of the Portuguese capturing American vessels, but they were allies of the British. 14

Moreover, there were suspicious circumstances. Following the capture of the Nostra Senhora de Carmo e Santo Antonio and before Wardwell parted from the Phoenix , a brigantine from

7 Jamieson, Alan G., “American Privateers in the Leeward Islands, 1776-1778,” in The American Neptune , [ volume unknown] , reprinting a table from CO 101/20.

8 Allen, Massachusetts Privateers of the Revolution , 235; NDAR, “John Rowe to the Massachusetts General Court,” 10:22 and 22-23 notes

9 NDAR, “John Rowe to Robert Morris,” 10:9-11 and 11 notes

10 NDAR, “Libels Files in the Massachusetts Maritime Court of the Middle District,” 10:664-665 and 665 note

11 NDAR, “John Rowe to Robert Morris,” 10:9-11 and 11 notes

12 NDAR, “John Rowe to Robert Morris,” 10:9-11 and 11 notes

13 NDAR, “John Rowe to Robert Morris,” 10:9-11 and 11 notes

14 NDAR, “John Rowe to Robert Morris,” 10:9-11 and 11 notes

Comment on this or any page at our ©awiatsea.com-posted August 2020 --3-- Newfoundland was captured. Cunningham and Duarti made a “Bargain between them . . .” and the brigantine was given to the Portuguese and some of his crew to take them to Fayal. Rowe stated that “I Consider it in a Different Light upon the whole I wishe he had not sent her in . . .” There were also six Portuguese sailors and a woman passenger to care for. Rowe was looking for someone to translate the papers from Portuguese, but with no success as yet. While he awaited orders from Morris, Rowe intended to petition Massachusetts to suspend action on the prize, and to guard the vessel. 15

On 3 October 1777 Rowe requested the advice of the Massachusetts General Court. He noted in his petition that the vessel’s papers were in Portuguese and that serious consequences could occur if she were wrongly condemned. On 6 October the Massachusetts Council halted action in the case, pending translation of the papers. 16

On 9 October Phoenix arrived at Boston and Cunningham discovered he was in a controversy. In his report to Thomas Willing and Robert Morris, 13 October, Cunningham noted that he had orders, in writing, from Carter Braxton, to capture Portuguese vessels, “Should you hear that the Portugueze are actually taking our Vessells . . .” Duarti had admitted, when first interrogated, that four American vessels had been seized at Fayal. Duarti had also heard of other captures by the Portuguese of American shipping; and that some Portuguese vessels had been seized in Europe by Americans and sold there. Cunningham added other evidence, none of which was true, to support his case. 17

Robert Morris replied to Rowe on 27 October in a long letter. Although many circumstances are mentioned it is clear that Morris thought the capture was unjustified and he states he does not intend to profit by it. Morris thought a trial was necessary, in justice to the privateer crew and owners, but hoped for an acquittal. He discussed methods of restoring the property if she was acquitted: sailing her back to Fayal was not wise, as she would be exposed to British capture. He also intended to lay the matter before the Congress at an appropriate time. 18 Morris was unable to present his petition to the Continental Congress until 6 March 1778. 19

Rowe answered Morris on 17 November. He had now had the papers translated and would forward them to Morris, but Rowe saw nothing in them to justify Cunningham. The vessel had been sold from Brook Watson of London to John Gathorn, who sent her to his brother at Fayal, who sold her to a Portuguese, or converted her to Portuguese property. She was now being unloaded and the cargo stored, and would be libeled. Rowe also hoped for an honest judgement in the courts. Rowe also asked for instructions on what to do with the Phoenix . It would be hard

15 NDAR, “John Rowe to Robert Morris,” 10:9-11 and 11 notes

16 NDAR, “John Rowe to the Massachusetts General Court,” 10:22 and 22-23 notes

17 NDAR, “Captain Joseph Cunningham to Thomas Willing and Robert Morris,” 10:135-136 and 136 notes

18 NDAR, “Robert Morris to John Rowe,” 10:318-320 and 320 notes

19 NDAR, “Robert Morris to John Rowe,” 10:318-320 and 320 notes

Comment on this or any page at our ©awiatsea.com-posted August 2020 --4-- to collect a crew. Rowe noted Braxton had thought of selling her. Rowe’s thoughts had been communicated to Colonel Griffin, who would deliver the letter. 20

On 1 December 1777, a meeting of the owners of the Phoenix was announced, for 11 December, in Williamsburg, Virginia. 21 We may be sure that there was sufficient material to discuss to call for a long meeting.

Nostra Senhora de Carmo e Santo Antonio (as Our Lady of Mount Cormel and St. Anthony ) was finally libeled on 4 December 1777, with trial set for 23 December in the Massachusetts Maritime Court of the Middle District. 22 The trial was evidently postponed from this latter date.

Phoenix had meanwhile lain at Boston. There was no refitting and Cunningham had received no instructions from Morris, despite two letters to Morris from Cunningham. On Christmas Eve he wrote to Morris requesting instructions on what to do with the Phoenix . Rowe had refused to refit the schooner without Morris’s orders. If she was not to sail again Cunningham requested that he be discharged and his accounts settled. Cunningham also noted that Morris was dissatisfied with the accounts of the prize sales at Martinique. Cunningham noted that only three eighths of the prizes went to him, for the prizes had been captured with two other privateers assisting. William Bingham had examined the accounts and stated they were correct. Cunningham now brought up the matter of the Portuguese snow, unable to resist defending the indefensible. He related his version of her capture and wondered what Morris thought of her, whether she would be condemned? 23

By 19 January 1778 the Nostra Senhora de Carmo e Santo Antonio had been tried and acquitted in the Maritime Court of the Middle District. On that date Rowe appealed to the Massachusetts General Court to appoint a person to hold the brigantine and it’s cargo secure, until the owners could determine a method to restore the prize, or the proceeds, to the Portuguese owners. 24 On 21 January Rowe advised Morris of his actions. On 29 January the Massachusetts General Court declined to get involved in the matter. Rowe again wrote Morris, urging Congress to consider the affair quickly. 25

Congress did not consider the case quickly. Morris read a memorial to Congress on the affair on

20 NDAR, “John Rowe to Robert Morris,” 10:517 and 518 notes

21 NDAR, “Purdie’s Virginia Gazette , Friday, December 5, 1777,” 10:648

22 NDAR, “Libels Files in the Massachusetts Maritime Court of the Middle District,” 10:664-665 and 665 note

23 NDAR, “Captain Joseph Cunningham to Robert Morris,” 10:793-794

24 NDAR, “John Rowe to Massachusetts General Court,” 11:160-161 and 161 notes

25 NDAR, “John Rowe to Robert Morris,” 11:178 and notes

Comment on this or any page at our ©awiatsea.com-posted August 2020 --5-- 6 March 1778, and that body appointed a committee of five men to consider the memorial. 26

A petition from the Portuguese commander of the Nostra Senhora de Carmo e Santo Antonio came to Congress in 1779. On 21 July 1779, Congress ordered the Board of War to restore to Duarti any coin or goods still in its possession, which belonged to the Portuguese snow. 27 The same day Congress passed the following resolution:

“Resolved, That authenticated copies of the said memorial and representation of the said John Garcia Duarti, and all the other papers relative to the said snow, her cargo, and proceedings had thereon, be transmitted to his excellency the governor of the State of Virginia, and like copies transmitted to his excellency the president of the State of Pensylvania, and to the honorable the council of Massachusetts bay; and that it be recommended to the said powers respectively to cause the most speedy and effectual measures to be taken, that full reparation and satisfaction be made and given to the said John Garcia Duarti, and the owners of the said snow and cargo, for the injury sustained in the capture and detention of the said snow by Joseph Cunningham, late commander of the private armed schooner Phoenix, as appears from the papers and exhibits afore mentioned.”

“Resolved, That it be further recommended to the said powers, that the most effectual measures be taken, within their respective jurisdictions, for apprehending and bringing to condign punishment the said Joseph Cunningham, Carter Braxton, and any other person or persons that may be justly deemed guilty of the seizing and capture of the said John Garcia Duarti, with the said snow, her crew and cargo, in violation of the laws of nations; to the end, that the good faith and honour of these United States, the rights of neutrality and laws of nations, may be inviolably maintained and supported.”28

Finally, on 19 June 1780, Congress passed the following resolution:

“Resolved, That the bond which Joseph Cunningham gave, at the time he obtained his commission as master or commander of the schooner Phoenix, be forthwith put in suit, and that his said commission be thereupon vacated and made void; and also that the said Joseph Cunningham be not admitted to hold any commission under the United States, on board of any ship or vessel of war, until such time as he shall appear and answer such suit, and satisfy the judgment against him, or procure the same to be reversed or set aside by due course of law; and that the monies recovered on such suit be paid to the said John Garcia Duarti, for the use of his owners:”

26 JCC, 10:227

27 JCC, 14:856

28 JCC, 14:857-858

Comment on this or any page at our ©awiatsea.com-posted August 2020 --6-- “That the said John Garcia Duarti may also prosecute, or cause to be prosecuted, an action or actions against the said Joseph Cunningham, late commander of the private armed schooner of war Phoenix, the owners of the said schooner, and any person or persons that may be justly deemed guilty of the seizure and capture of the said John Garcia Duarti, with the said snow, her crew and cargo, or any ways accountable for the same, for the benefit and further reparation of the owners of the said snow: such prosecution to be at the expence of the United States.”29

29 JCC, 17:529-530

Comment on this or any page at our ©awiatsea.com-posted August 2020 --7--