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The Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) online

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tihvavy of t:he t:heolo^ical ^tminavy



Stephen Collins Donation






THE Xs> o-LyUynd

















Judgments in theADMiRALTY of PENNSYLVANIA,


^UCKER vcrfus theJJjip Pole, I

Tucher verfus the William^ 3

Boyd and Carter verfus the Jemima^ 5

Houjion verfus the Charmifig Nancy ^ o

Balefkamp verfus the Swift's boat and three negroes y 8

jToung verfus the Haerlem, 9

Gamble verfus the Terrible, ^ ^

Falliage ^ Al. verfus the Hope, ^ 2

Harridan verfus the Hope, ^4

Rice verfus Taylor, ^^

Geddes verfus the Golden Rofe, ^ 9

Ducatur verfus the Deftre, ^3

Montgomery verfus the owners of the General Greene, 24

*1 he golden Rofe [bill of charges) 3^

Ducatur verfus the Nymph 34

Kemp verfus the Sarah, 3*^

Walker verfus the Albion, 4^

Phile verfus the ABive, 4^

Pray ^ Al. verfus the Recovery, 47

OToung verfus the Two Friends, S®

Mahoon ^ Al. verfus the Gloucefer., 55

Pringle ^ Shce verfus the Elizabeth, ^^

[ iv ]



T>ixneuf verfus Lacaze^ 68

Miller verfus the Refolution^ no

Cajfen verfus the Trijlam Shaftdy, 84

Robefon verftts the Amelia^ 88

Hainey verfus the Trjjiram Shandy and Dimfdale^ 89

J\Iagee verfus the Fanny ^ p2

JViliis verfus the Tork^ p4

Gibbs verfus the Two Friends i 95

Clinton verfus the Hannah and General KnoXy 99

Pierre de Aloitez verfus the South-Carohnay 1 04

Kemp verfus the Experiment^ 1 04

Mahoon ^ AL verfus the Lady Margaret 106

M^Culloch verfus the Lethe ^ 1 1 7

IBrice ^ Woodroff verfus the Nancy ^ 1 1 8

Shaw verfus the Lethe, 1 23

Dray ^ AL verfus the Collier , 1 3 1
Talbot verfus the owners of the Achilles, Patty ^Hibernia, 132

Dean ^ AL verfus John Angus, 139

Ditto Judgfnent on the merits, 152
Leibaert, Baes, Durdeyn ^ Co. verfus the Emperor y 163

Turnbull and AL verfus the Enterprise, 17 1

Forbes verfus the Hannah, 176

Canizares verfus the Sa. Trinidady 185

Smith Verfus Leard, 199

Anderfon ^ AL verfus Forbes, 200

Moran verfus Baudoin, 202

Thybout verfus Baudoin, 209




To the Rev, William Smithy 3

Odetomufic, 5

Songy 7

To mifs — on her fmgingy 8

To the memory of Mr, William Willcochy I o

Hermitage y a poem ^ ^^

Advice to Arnrmday 1 8

Epigram on the death of a favourite lap dog^ lo

UAlegro, . 21

IlPenferOy ^^

Morning HymUy 3"

Elegy on the Death of Mrs, Jane Wiilcocks, 39

Ferfes to the opccrs of the 35 th regiment ^ A^l

>Song^ 45

On the expedition againfi Louifbourg^ 47

"Prologue on opening the theatre at Fhiladehhla^ ^o

Epilogue for Tamerlane^ 5 ^

Prologue in praife of muftc, 54

Charity y a poem, 5 ^

Defcription of a Churchy 59

To Cclia on her nvedding day^ 6 1

Paraphrafe on the lo'jth pfalm, ^ 5

Elegy to the memory of Joftah Martin ^ 7*^

Epit aph for an infant y 73

Difappointcd love, 74

Exercife to the memory of George II, 7 7

Exercife on the acceffion of George IIL S3

Science y a poem y 9^

'• Morning hymn f ^^^

Evening hymn* ^*^4

[ vi ]

y<7 Rofal'inda on her birth day^ 107

21? Rofalinda on her birth^day^ 1 08

To Rofalinda on her birth'day, 1 1 o

Extempore verfesfrom the top of Parnaffus^ 1 1 2

Dirtillay a poeniy 1 1 4

Afentiment^ ' 1 1 8

The treaty f a poem, 120

Elegy to the memory of Mrs. Anne Grame, 1 29
Verfes ivritten in a blank booh which once belonged to Shen^

pne, 133

Tg a very young lai'^, 135

Ode on Mrs. B '/ birth-day, 137

Petition of the docks, thijlles and nettles, 1 39

To Myrtilla, 1 43

To Myrtilla, 1 44

An evening atfea, 1 46
Verfes "writen near the conclufton of a very tedious voyage, 148

To Delia, on a leaf in her pocket hook, 150

^ong, 152

To Myrtilla, the neft, 1 54

the wafp, 155

ro T M , efq. ^ 157

To the mefuory of Mrs. Mary M'Kean, 16 1

Political ballad written in 1777, 164

The battle of the keggs; 1 69

A camp ballad, 174

The toaj, 176

The Ftrds, the heajls, and the hat, 177

Addrefs of Amir al Collier and General Tyrtn^ 1 8 1

hi memory of Mr jfamss Bremner, 184

Eight Songs, 185

An oration which might have been delivered, 193


o w


[A.D. I779-]
if U C K E R, QjJi ri\U

The Ship P O L ^,

HE fliip Pole failed from Liverpool, in Eng^
land, with a cargo of goods for the city of New
York in America, then in the polTeffion of the
Britifh troops, under a commilTion of letters of
marque and reprifal againft the fubje^ls of the
United States ; and with orders from her owners
to cruize againft the Americans in her voyage.
Vol. IIL A being


teing properly armed for that purpofe. After tlic*
delivery of her cargo at New York, (lie was to
fail for Jamaica, take in a lading of rum and fU-
gars, and then return to Liverpool.

Such was the plan of the voyage ; fubje^led,
however, to the difcretion of an agent at New
York, who had power to alter it if he fliould think

After, the iliip had delivered her cargo at
New York, the agent ordered her to cruize on the
American coaft for four months, and fliipped hands
on board her for the purpofe, as privateer* s-men^
which appeared by an endorfement on the fliip's
articles. She had alfo a let-pafs on board, figned
by the fenior naval ofEcer at New York, filling
her a privateer.

Under thefe circumflances the P(^/^ failed from
Nev/ York, and was captured by Tucker, in a fri-
gate belonging to the United States, and libelled
againft in the admiralty of Pennfylvania as prize :
whereupon 'a claim was filed in behalf of the Unit-
ed States for one half of the value, under an ordi-
nance of congrefs, pafTed Odlober 30^'' i ']^^<i which
gives the whole of vefTels of war taken by the
fliips of the United States to the captors, but re-


r 3 1

fcrves one half of merchantmen fo taken, to the

The only queflion was, whether the fhip Polc^
at the time of her being captured, lliould be confi-
dcred as an armed merchantman, or a privateer
belonging to the enemy.

Verdict in favour of the captors for the whoIe#



The Sloop WILLIAM.

The Hoop William, captain Afliburner, was
the property of John Wallace, an inhabitant of
the illand of St. Croix, and a fubjeft of the king
of Denmark. She took in a part of her lading at
St. Croix, and cleared out at the cuftom-houfe
there for the port of Philadelphia. From St.

A 2 Croix

[ 4 1

'Croix file went toTonola, a Brltifh illand, where
flie took in the remainder of her cargo, which, by
the teflimony, appeared to have been fent after her
in a droger from St. Croix. At Tortola, captain
Afhburner, who was part owner of the cargo,
cleared out at the cuflom-houfe there for New
York, then in poffeirion of the Eritifli troops.

With thefe double clearances, fpx arrived ofl
the American coall, where captain Tucker difco»
vered, purfued, and boarded her under Bririfli co-
lours. Afliburner mifraking Tucker for a Britiiln
officer, exhibited his Tortola papers, and alledged
that he was bound for New York, whereupon
Tucker to(5k the floop as prize, brought her to
Philadelphia, and libelled againfl her in the ad-
miralty as prize ; at the fame time a claim was filed
in behalf of AYallace and Afliburner, the ov/ners.

On the trial, it w^as urged, in favour of the
claimants, that this vefTel and cargo were wholly
Danifli property, and that, notwithfianding the
Tortola clearance, the floop was in fa6l bound for
Philadelphia, which clearance was only iijtended as
a cover from Britifli capture. In proof of this,
many letters were exhibited, found on board, to
fundry merchants of the United States. In parti-
cular, one to John Willcox of Philadelphia, con-

C 5 1

taining invoices of the cargo, and confignlng the
whole to him, informing him alfo that the veiTel
was covered with a Britifli clearance.

It was further fliewn, that from the courfe of
the wind, and the direftion in which Ihe was fail-
ing at the time flie was difcovered, the probability-
was, that file intended for the Delaware.

Verdict for the claimants.

N. B. This was previous to the ordinance of
congrefs making double papers condemnation.

The Schooner JEMIMA,

X HE fchooner Jemima, belonging to Robert
Bridges of Philadelphia, was taJien by the Britiili

A3 as

C « ]

as flic lay aground in 'a creek near to Borden-
town, in New Jcrfey, who flripped her, and then
fet her on fire. The Hbellants claimed falvage,
for that they, at confiderable riik (the enemy be-
yet in fight) went on board, extinguiflied the fire,
and faved the veflel.

Verdict^ in favonr of the hbellants, for one-half
of the value of the fchooner.



i. HE brig charming Nancy, belonging to Pur-
viance, and others, fubje^ts of the United States,
was on her voyage from Senepuxent to Philadel-
phia, when flic was difcovered near the Capes of
Delaware by Houfl:on, in a Philadelphia priva-
teer, then out at fea. Houflon hoifl;ed Britifli


E 7 ]

colours, and endeavoured to come up with her :
whereupon, M'Kenzie, captain of the Charming
Nancy, taking Houdon for an enemy, endea-
voured to run his velTel on fliore ; but being una-
ble to elFecl this in time, he, with the whole of his
crew, tt)ok to their boat, and rowed to land, not
leaving a foi^l oil board the brig. M'Kenzie foon
after difcovered his miftake, went on board his
vefTel again with his mariners, and brought her up
to Philadelphia. And nov/ Houdon libelled for
falvage, as having found the vellel abandoned on
the hisih feas, and faved her to her owners.

But as the abandomment was occafioned by the
iibellant's own aft, the bill was difmiffed.

Verdict^ that the brig be reftored wholly to
her owners.


L 8 3




A HE Swift ^ a Britifli floop of war, chafed the
Rattlefnake^ an American privateer, till, in the
heat of the a<^ion and chafe, both velTels ran a-
fhore on the coafl of Virginia, and ftranded : the
captain of the Swift then furrendered to the Rat-
tlefnake. The negroes in queftion were taken on
board the Swift. M'Cullough, commander of the
Rattlefnake, took polTefTion of his prize, and em-
ployed the negroes for fome time in faving goods
from both wrecks ; but the negroes, watching a
favourable opportunity, took the Swift's boat and
went off, intending for New York. Haleilcamp
faw them from the fliore, purfued, and took them,
and now libelled againfl the boat and negroes as
his prize.

And it was urged, in behalf of the libellant,
that the property, not having been condemned in

f^ court

[ 9 ]

a court of admiralty, veiled with M'Cullough on-
ly as a pofTeflbry right, which ceafed the moment
an efcape could be effe<51:ed, and therefore the li-
bellant ojught to be confidered asan original captor.

But the judge was of opinion, that M'Cul-
lough had by the capture acquired a right, yz/^
judice^ v/hich could not be injured by a fellov/ fub-
je£l, and which a court of juflice alone could con-
firm or invalidate : that if Haleflvamp had libelled
for falvage only^ it had been good ; but not as

Verdict — that the libel be difmilTed.


OHAW, and Others, of the city of New York,
fubjedls of the United States, were owners of the


privateer (loop Harlequin (row called the Hacr-*
Jem.) In September 1776, the Britiili then in-
vading New York, this floop was, by order of
General Wajhington, ftationed in Haerlem river
to defend that pafs, and prevent the enemy's
boats from^going up the river. On the retreat
o^ Genera! Wq/bington with h.\s troops, the own-
ers not being able to get their vefTel out to fea,
on account of the enemy, had her fcuttled and
funk ia Haerlem river, where flie was ftationed,
iind then fied. The Britifli troops took poiTeffion
of Nev\r York, and afterwards, by order of admiral
Howe^ this veiTel v/as raifed, was called the Haer-
lem, and iiited out as a cruifer in the Pritifh Ser-
vice. After cruifmg three years again (1 the Ame-
ricans, and talking many prizes, flie was at lafl
captured by the libellants. Whereupon the for-
mer owners claimed her as their property ; ofFer-
ino' to pay one half of her value for falvage, as
having- been more than 96 hours in the enemy's
poiTeffion, when flie was re-captured : alledging^
that their property had not entirely divelled j be-
caufe there was no proof that llie had ever been
condemned as prize in the Britiili court of adrni-^


EuT although there was indeed no dire£b proof
of inch cciidemnatioii, yet the length of time fhe


was in the fervice of the enemy, together with the
general tendency of the tefrimony produced, gave a
flrong prefumption that flie had been fo condemned,
and therefore the jury found a

Verpict in favour of the hbellants.



Clainif by John Ofman, for five hogjhc(ids of riim^
and a fhare of the prize,

OSMAN was a prifoner In Jamaica, where alfo
he had money due to him. With this money he
purchafed five hogflieads of rum. He was then,
with other prifoners of war, put on board this
floop, which v/as Britilh property, to be conveyed
to New York, and was permitted to take his fiye


r 12 1

hogflieads of rum alotig with him on his own ac#
count. The prifoners rofe at fea upon the captain
and crew, took poffcfTion of the floop, and brought
her into the port of Philadelphia. Ofman was
privy to the dcfign, but unable to affiil perfonally
in the capture, being confmed in bed by his

Verdict^ that the floop be condemned as prize,
and that Ofman have his five hogflieads of rum^
together with a diflributive fliare of the prize.

F A L L I A G E, & a l i.

The Schooner H O P E.

Mollineau^y ^ all. Claimants,

MoLLINEAUX, and ethers. Frenchmen^
wxre owners of the fchooner Hope, which was


C '3 ]

captured by a Britifli privateer In her voyage
frojn Maryland to France. Frlliage, and oihers,
the former crew, blit now prifoners on boardj
contrived to make the Britifli prize-mafter and hi'i
companions very drnnk, and to keep them (o till
the velTel was brought into the port of Philadel-
phia. And now the owners claim their velTel again,
on paying falvage, agreeably to the marine laws of

But it was urged, that they, being French
fubje<^s, ought to be determined by the law of
France, which gives the whole of re-captured vef-
fels to the re-captor, when the prize has been more
than twenty four hours in the poiTelTion of the

But the judge was ofopinionj that as Ameri-
can owners were, in cafes of recapture, allowed
the benefit of the American law in the admiralty
courts of France, French owners ought alfo to
have the benefit of the American law in the
ports of the United States.

Verdict^ that the fchooner be reflored to her
former owners, they paying to the re-captors onc«

half of the value in lieu of falvage.


C 14 ]


^ , ^v erf us

The Sloop of War HOPE.

yofeph Blezver, et ali. Claimants.

"x\t die commencement of hoftilities between
Great Britain and America, the Britifh feized fe-
veral merchant vefTels in the harbour of Bofton,
amongd which was the F±ope^ belonging to Blew-
er, and others, of Philadelphia. The Britifh af-
terwards fitted her out as a Hoop of war, and put
her under royal commiilion ; and flie cruifed a-
p-ainft the vclTels of the United States for four


years, and was at lad captured by the libellant.

The claimants iBfifled, that this veiTel had ne-
ver been condemned as prize in a Britilh court of
admiralty ; becaufe, at the time Ihe was feized at
Boftcn, no letters of marque and reprifal had as


r »5 1

yet iiTucd againfl: the United States, nor had ihc
Britifh courts of admiralty been eftablifhed in Ame-
rica for the condemnation of their vefTels : and
thereupon they claimed their veiTel, on paying fal-
vage according to the ordinance of congrefs of
December 5^^' ^775'

Verdict for the claimants, as to the Yt^d^ her
tackle, apparel, and furniture (except the guns and
warlike ftores which were condemned as prize)
the faid claimants paying one-half of the value to
the libel 1 ant for falva^e.

N. B. This verdi£l was contrary to the opi-
nion of the judge.


I 1^ J

k I c t

1: A Y L O R<

■WTMHI ilih ■!■ I

1 HE panks were commanders of privateers
duly comraifiioned. Taylor engaged, and took a
prize. Rice being in figlit at the time of the cap-
ture. Whereupon Rice claimed a lliare of booty
under the maritime law*

On the trial it appeared, that although Rice was
in fight at the time of the aflion, yet from the pe-
culiarity of his fituation^ it was impolTible he iliould
have contributed to the capture by terrifying thd
enemy : and fo the jury found a fpecial verdi^i: in
thefe words.

" That captain John Rice v/as in fight, and

" at the diilance of five or fix miles at the time of

4 " the

r 17 J

^' the faid capture, mentioned, and fo fofth ; but
'^^ that he did not contribute to the faid capture,
" or influence her furrender to the faid captain
" Taylor. And if upon this .finding, &c. &c."

The faft was, that Rice lay within a bar, clofc
upon the iliore of New Jerfey, and faw Taylor
engage a Britiili veiTel, about five or fix miles out
at fea. There were alfo two Britifli vefFels of force
between R-ice and Taylor, at the time of the ac-
tion. Rice, obferving the battle, faw at lafl one
of the vefTels flrike to the other, but could not
clearly difcern which had the viflory : believing
that Taylor had furrendered, he reported in Jer-
fey that poor Taylor was taken at lad. But he
found a few days afterwards, that Taylor had
been fucccfsful, and brought his prize fafe into
port. Whereupon he claimed a fliare of the
booty under the general law refpedling veffels in
fight of a capture.

In the argument on the fpecial verdi61:,the coun-
fel for Rice refted his claim principally on Mol-
loy. Book P' chap. 2. fe£i:. 20. urging thatnotef-
timony Iliouid be admitted againll a prefumption
of law..

Vol. III. B But

But the judge obferved, that the prefumptlon
of law is founded on a material fa£t : to wit, that
the veiTel in fight be armed and prepared for baitle,
or at lead in a pofTible condition to join in the bat-
tle. When this is the cafe, the law will prefume
that her prefence terrified the enemy and influ-
enced the furrender ; and therefore, although fhc
does not join in the engagement, allows her a fnarc
of the prize in proportion to her men and guns.
But if a vefTel in fight is aground on afhoal or bar,
or is far to leeward, with difabled mafts and
rigging, or is fo fituated (as in the prefent cafe)
that it is manifeftly impoflible for her to take
any part in the battle, flie cannot be confidered
as to be fo prepared for battle as to bring her with-
in the prefumption of law.

*' When the reafon of the law ceafes, the law
" itfelf ought likewife to ceafe with it." i^' Black,
p. 6i.

And fo Rice's claim was difmiffed.

There was an appeal from this decifioa, but
the appeal was not profecuted.


r 19 1

The golden ROSE.

rinrTmiifci mni ■■■

1 HE Golden Rofe^ belonging to fubje<^s of
the States of Holland, failed from Hamburgh
with a cargo configned to Colloghan and Sons,
merchants, in the ifland of Teneriff, an ifland
belonging to the crown of Spain,

Holland was at this time in a (late neutrali-
ty, but Britain had declared war againft Spain,
and neither of thefe nations were in alliance with
the United States of America.

The Golden Rofe was captured near the Ifland
of Teneriff by a Britifli privateer, and ordered for
New York, then in poffeifion of the BritiQi army,
and on her way to New York flie was re-

B 2 taken

Il 30 t

taken by the libellant and brought into the port
of Philadelphia.

Hassenclever filed a claim for the ihip and
cargo in behalf of the owners and merchants, fub-
j,e£ls of the ilates of Holland, and

Don Juan de Miralles alfo filed a claim for the
cargo only, in behalf of Coiloghan and Sons, fub-
je^s of the king of Spain.

It was argued for the libellant, that although
the fhip and cargo did originally belong to the
fubje<5i:s of neutral powers with refpeft to America,
yet the property had totally diveiled by the BritiPa
capture, the veiTel having been more than than fix
weeks in their poiTeiTion : that if any injury was
done to the neutral owners, it w^as done by the Bri-
tiiii captain who firfL took her, and not by the li-
bellant, who forced her from a declared enemy as
he had a right to do: that the prefent cafe
came within the refolve of congrefs of November,
1775, declaring that all veiTels employed in tranf-
porting provifions, ftores, and fo forth, to the ene-
my in New York, fliould, if taken, be lawful
prize. And laftly, that if this veffel (hould not be
condemned as prize, it would be eafy for fubje£ls
of neutral nations to ii^pp^y the Britilh at New


r 21 J

York wlih all things neceffary for carrying on ih€
war againft us by collufion.

On the contrary, it was urged for the claimants,
that this ihip had committed no offence whatever,
that her intended voyage w^as a lawful one, viz.
from Hamburgh to Teneriff. And although the
libellant took her in her way to New York, yet it
wasbycompulfionthat fhe was found in that courfe.
that the Britifli privateer had violated the laws
of nations in taking her, and therefore flie could
not have been condemned in their courts of ad-
miralty; inferring, that as ihe was not legal prize to
the captors, the re-captors could have no better
title: and that, fuppofmg the cargo to be Spanifh
property, yet as it had not been condemned to
the captors, the property had not been totally di-
veded, but that the Jus pqftli?ninii took place, a-
greeably to the ordinance of congrefs of Decem-
ber 5. 1775.

After long argument, the judge inflru£led the
jury, that as the facts were all acceded to in this
caufe, viz. That the. lliip was Dutch, and the
cargo Spanifh property, and that fhe had been ta-
ken and retaken, as fet forth in the libel, the deci-
fion muil depend upon points of law only, and
therefore recommended their bringing in a fpccial

B 3 verdifi:.

C 22 3

verdl£i: ; adding, that he would not give his opinion
on the law, without taking time to look into the
authorities referred to, and reconfidering the ar-
guments on both fides.

The jury, after a long recefs, brought in a
general verdi<5^, viz.

*' The jury find for the firft claimant as to the
*' fliip, and they award freight according to charter-
*' party. And they find a cheft of clothes, and a
*' piece of linen to be the property of WiUiam
*' Vanderwindt*. The faid lliip and goods to be re-
^' ftored without falvage.

" The jury find that the cargo, as fet forth in
" three invoices exhibited in this caufe, are the
" goods of John Colloghan and Sons, of thellland
" of Teneriff, thefecond claimants, they paying
" the faid George Geddes for falvage, one moiety
<« thereof."

* The Captain of the Golden Rofe when flie was firft capturedo


I 23 ]



Argument on a /fecial verdid*

1 HE queftion was whether French owners fliould
have the benefit of the ordinance of congrefs re-
lative to recaptures, and it was fo determined.
Vide p. Q^ I3»

0^ March

r 24 J

fct" March 8th 1780, the law of Pennfylvania, admitting juries
to decide in admiralty caufes was repealed, and a new admiralty,
law enabled, leaving the determination of fuch caufes to the judge.





VV HARTON, and others, owners of the fhip
General Greene, had chartered her to certain mer-
chants for a particular voyage, and appointed
Montgomery mader for that voyage. The fliip
had cleared out at the naval office, and was on
the point of failing, when a fudden froft filled the
Delaware with ice, and fixed her in the port of
Philadelphia. During the winter fome differen-

[ ^-5 ]

CCS arofe between the owners and mader. The
confequence of which was that the owners, by a

1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Online LibraryFrancis HopkinsonThe Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) → online text (page 1 of 17)