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

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a nature, that it ought not to be prefumed of any-
one, milefs very pov/erful circumflances fliall juf-
tify the prefumption.

I adjuge, that the fliip Albion and her cargo, bfe
condemned as lawful prize to the libellants.


The Brig ACTIVE, and her CARGO-

1 HE brig Aclive was feized by Frederick Phile^
the naval officer of Pennfylvania, going out of
the port of Philadelphia, with a cargo of fioiir in
violation of an embargo law of the ftate.


i 47 ]

IThat the velTel, and her cargo, confiding of
252 barrels of flour, be condemoi:d; one-third
part to the ufe of the flate, one-thhd to the naval
officer, and the remaining one-third part to the
Informer, according to the law.



Claim by Robert Morris^ on behalf of the
United States*

Job Pray and Aaron Stockholm engaged and
took as prize, the brig Recovery^ a veflel belong-
ing to the enemy ; the fchooner Livingfton, a
veffel belonging to Robert Morris, the claimant,
being in fight at the time of the capture'. Pray
and Stockholm were duly commiffioned by con-
4 Z'^^^^

L 48 ]

grefs to cruize as privateers againfl the enemy 5
but Kelly, the mailer of the Livingflon, had no
fuch communon.

Tke council for the claimant urged, that It was
a principle of law — ihzi prizes taken by veffels not
tonwiijfionedy mured to the fovereign power ^ and
exhibited a transfer from congrefs, of all their title
to any fliare in this prize to Robert Morris ; em-
powering hira to profecute a claim, in the name of
the United States, but for his own benefit. And
the authorities cited in fiipport of this doclrihe,
were Carthcw 474, and 12th Modern 134^

But neither of thefe authorities apply ftriclly
to the prefent cafe. In the one, the prize was a
wreck, flranded on the iliore, and great part of the
booty was taken on Ihore by the crews of veiTels
not commiflioned : in the other, a veiTel without a
commiffionj took a prize, and carried her into a
foreign port, where the captor fold her, and con-
verted the money to his own ufe.

In both cafes, the booty was taken by perfons

not commilTioned ' to take; no veiTels duly com-

miffioned afliiVing in, or being prefent at the time

of the capture. But in the prefent cafe, theorize

was in fa(5t taken by veiTels regularly authorized

4 for

C 49 1

for the purpofc, and the non-commlffioned veffcl
only in fight at the time of the battle. In the ca-
fes cited, no perfons were prefent or aflifting to
whom the booty could be legally adjudged. Here
the Hbellants, the real captors, were duly commif-
fioned to take, and empowered by their commiiTi-
ons, and the refolves of congrefs, to poffefs and
enjoy the^property fo legally taken.

A veffel not commilTioned mufl be confidered
as a mete merchantman ; and according to Lee^
237, if a merchant veflel meets an enemy in the
courfe of the voyage, and takes her, the prize fliall
belong to the captor : but if ilie goes out of her
courfe to feek plunder, flie may be deemed a pi-
rate. Now, it is not pretended that the Livingfton
took the prize in queftion j on the contrary, it
is in teflimony, that ihe was running away whilit
the libellants were engaged with the enemy ; and
now claims a ihare of the prize, as having been in
fight at the time of the capture.

The right under which a veffel in fight may
claim a (hare of a prize taken, is founded in a pre-
fumption of law, which fuppofes a veffel fo in fight,
and armed, and prepared for battle, to have indu-
ced a furrender. A prefumption of law is a legal
indulgence, and ought to be ibiaiy confiued within

Vol. III. D the

r 50 J

the reafon of the prefumption. But no authority
has been adduced to fliew that this indulgence
has been extended to a veflel not commiflioned
to take, unarmed, and flying from the fcene of

The Livingiton cannot claim under the pre-
fumption of law, not being within the defcription }
nor the United States under the general do6trine ;
becaufe the prize was in fa6t taken by veffels duly
authorifed to take, which the Livingflon was not.
I adjudge, therefore, that the claim in this caufc
be difmilTed, and that the brig Recovery be con-
demned as prize to the libellants.



Claim by Timothy Fenny , for I be vejjel and part of
the cargo ; by Alden Bafs,/^r a quantity of glafs
and dry goods ; and by Jerufha Fitch, /i?r rum
and dry goods »

1 IMOTHT Penny ^ a citizen of the United States
of America, having an eftate in the ifland of Ja-

[ SI ]

raaica, obtained from coiigrefs a paffport or fafc
condu<^, for one Jofepli Dean, to go to Jamaica
and purchafe a veiTel there , which he was to load
with " PRODUCE," on Penny's account, and to
bring the faid velTel and her cargo into any port
of the United States not in the polTeiTion of the

It appears that the Hoop in queilion w^as fo
purchafed by Dean, and laden in part on Penny's
account : that MelTrs. Fitch and Tyler^ of Jamai-
ca, being friendly to Dean, arid privy to the pur-
pofe for which he had purchafed the iloop, and
the real deflination of her voyage, put on board a
quantity of rum and dry goods — the former, for
the ufe of his mother, JenifloaFitch and his fon re-
ading at Bofton ; and the latter for his friend Al-
den Bafs^?iX Bofton, who had charge of his (Tyler's)
fon : that the Hoop, fo laden, cleared out at the
cuflom-houfe in Jamaica for New York, then in
the poffeiTion of the Britiili troops, and failed under
convoy of a Britiili fleet, as for New York : that
when file arrived on the American coafl:, the cap-
tain made three attempts to run her into Chefapeak
Bay, but without fuccefs, notwithftanding feveral
maiiosuvres to deceive the convoy. At length,
being off the capes of Delaware, by flacking fail,
under pretence of the mafl's being fprung and a

D 2 fuppofed

C 5^ 3

fuppofed leak, the captain dextferoully left the fleet
in the night, and ran up the Delaware, where his
Hoop was taken by the Hbellants. ,

It has been admitted on the part of the libel-
lants, that this floop did really intend for fome
port in the United States not in the polTeflion of
of the enemy, and that the goods were honajide
fliipped as fet forth in the exhibits, and for the
purpofes alledged. But it is urged, that the fafe
conduct of congrefs ought to be ftrielly conftru-
ed — that dry goods are not the produce of a Ja-
maica ellate, and therefore not covered by the
palTport : that Fitz and Tyler are Britifli fubjecls ;
and the property of the goods ihipped by them
not altered by the bills of lading, becaufe thofe
bills do not declare the ufe, the appropriation be-
ing only defignated in private inllru6i:ions, which,
the parties might have revoked at pleafure ; and
thiit under thefe circumftances, being truly Britilli
property, they ought to be condemned as prize te
the captor.

On examiming the complexion of this caufe,
I find that the peculiar circumftances of the cafe,
require that it fliould be viewed in the liberal light
of equity, rather than fquared by the ftri6left rules


r 53 ]

of law. The intention of congrefs in granting
the paffport appears lo have been to permit Timo-
thy Penny to import the produce of his eftate in
Jamaica, for the benefit of himfeU^and family ; and
it is but reafonable to fuppofe that they meant
this fliould be done in the moil beneficial manner.
Had it been otherwife, congrefs would not have
veiled an important reflri^tion on a fmgle word
of equivocal con(lru61:ion j but would have in-
ferted a prohibitory claufe in the paffport. As to
the law refpcj^ing bills of lading, it feems not to
apply fully to the prefent cafe, becaufe the whole
arrangement of this bufniefs was framed with a
view to cover the property from feizure by Bri-
tifli captors, and not according to the cuflom of
merchants in open commerce. Thefe bills of la-
ding and inflru^tions were altogether confidential.

It mull be allowed, that Fitch and Tyler, rea-
ding in Jamaica, and being profefTedly Britifli fub-
je£ls, had no right to fliip goods for the United
States ; and as their part of the cargo is not cove-
red by the paffport, they ran great riflv of confif-
cation into whatever hands they might fall. If
it could be made appear, that thefe goods were
to have been fold for their perfonal benefit, . they
would doubtlefs be prize to the captors. But
as it is manifcd from the teflimony, and admitted

D3 ^j

C 54 ]

by counfel for the libellants, that the goods fhipped
by Fitch were for the fupport of his aged mother
and his fon at Boflon, fuHjefts of the United
States, and that thofe Hiipped by Tyler were for
ufe of his fon, under the care of his friend Alden
Bafs, alfo American fubjecls, or to difcharge
debts already contracted on their accounts, it feems
to be one of thofe cafes to which the flridnefs of
law ought not to be rigoroufly applied— more
efpecially as there is little reafon to apprehend
that lenity here may form a dangerous precedent
for hereafter, becaufe a like cafe will probably
never occur again — pafTports of this kind being
very rare.

Let the libel be difmiiTed , and the Hoop and
her cargo be delivered to the claimants. But
as there was fuch probable eaufe of capture, l"
adjudge that the claimants pay the colls and
charges. '

N. B. From this decree the libellants appeal-
ed ; but the court of appeals confirmed the fen-


r 55 J


Libel for prize 7noney»


1 HE Brig Glocefter had been captured by Ro-
ger Kean in the privateer Holker, and condemn-
ed as prize to the captors. The marihal being a-
bout to make diftribution of the booty amongft
the crew, according to the Uft handed in by cap-
tain Kean, was notified to ftay in his hands 25
{hares of the faid prize, claimed by Patrick Ma-
hoon, and others, as being a part of the crew
belonging to, and concerned in the faid privateer
Holker. Notwithftanding that their names were
not to be found in the captain's return ; the libel,
now before the court is for thefe 25 Ihares.

The circumftances of this cafe appear, by the
teilimony exhibited, to be as follows.

The printed articles of the privateer Holker
were fet up at a common houfe of rendezvous for


C 56 J

the enliflmcnt of privateer's men, according to cu-
flom. The Hbellants, in common with many o-
thers, figned thefe articles, and made the necef-
fary preparations for the cruife. When the Hol-
ker was ready to fail, the Ubellants, with the reft
of the crew, repaired on board by order of the
captain, and the vefTel fet fail. When they arri-
ved at Chefter on the Delaware (15 miles below
Philadelphia) captain Kean muftered his crew up-
on deck, called over their names as fubfcribed to
the articles, and then, without giving any reafon
for his conduct, fele^led Patrick Mahoon and 24
others, and ordered them on Ihore; refufmg to
let them proceed on the cruife, and when they ear-
neftly foUcited to be continued on board he for-
cibly drove them away, and the captain pro-
ceeded on his voyage, leaving the Ubellants

■_■ •■ \ ■

A few days after Kean again called his crew to-
gether, and produced to them another printed co-
py of articles, which he urged them to fign. Some
obje6led, obferving that they had already figned,
and did not underfland figning two fets of articles
for the fame cruife ; but the captain enforced them
"with threats and even blows, to fign the new ar-
ticles ; declaring at the fame time, that his view


t 57 1

was to*exclude thofe men whom lie h act left ''be*
hind from having any Ihare of the prizes they
might take. The Brig Gloceder was captured
during this cruife.

The refpondents have refled their caufe prin-
cipally on a plea to the jurifdi6i:ion of this court ;
alledging that the injury, if any, was exclufively
of common law cognizance ; becaufe the libel-
lants claim was founded in articles executed on
fliore, within the body of a country : that although
the admiraky could determine the queftion of
prize or no prize; yet it could not determine
to whofe ufe, having no jurifdi£lion in difputes
between owner and owner, owner and captain, or
captain and mariner, except only in the cafe of
a mariner's wages, which is allowed out of fpecial
favour, and not of right, further than as communis
error facit jus.

The fa6ls being fully afcertained, and not con-
troverted, no diiEculty ariles from that quarter^ ^
It is in proof that captain Kean forced the libeli'")
lants on fhore after the voyage was begun, arid
compelled the remainder of the crev/ to fign the
new articles, with a veiw to exclude the libellants '
from any advantage they might claim under the


[ 5" J

former ; and it is contended that this court cannag
redreis the injury, becaufe the fuit refpefts damages ,
which the common lav/ alone can afcertain. The
truth however is, that the parties do not fue for
redrefs of an injury; but for their jQiares of a prize
legally condemned to the ufe of the owners^ officers^
a?id crezu, and of all perfons belonging to^ or concer-
lied in the privateer Holker : of which crew, they
fay, they are a part. The articles of enliilment, ex-
ecuted on (hore, is no bar to the jurifdi^lion of
the admiralty. Mariners arc generally engaged
on lliore, and always fue for their wages in this
court. In the one cafe the m.ariners are paid by
monthly wages, or by the run, in the other by a
lliare of the booty taken. There is the fame reafon
in both cafes. But I am of opinion that the articles
are not the trye foundation of a feaman's claim.
If one or more mariners iliould enter on board
a veifel, with the knowledge and confent of the
mailer, iliould receive his orders and perform the
duties of the ftaion, they v/ould be entitled to cu-
ilomary wages, or a proportion of the booty ta-
ken in common with the reft of the crew, although
they had figned no articles at all, the right is not
founded in the articles, but in the fervice.

It has been faid, that this court can only deter-
mine the queilion prize or ns prize, but cannot ad-

r 59 ]

Judge to whofe life, Broome's cafe in Garth. 399
and 475, is exprefs in point to the contrary. The
admiralty not only decreed lawful prize^ but alfo
to whofe ufe, viz.. to the Kin^s ; and Broom having
converted the property to his own nfe, was fued
in the admiralty by the king's pro6i:or for the va-
lue. Broom applied for a prohibition, which was
denied ; becaufe the court of admiralty, having de-
termined the property tabe prize to the king^ this,
fecond fuit was deemed to be only a continuation
of the original procefs.

Moreover, it cannot be fuppofed but that du-
ring the many maritime wars in which England hath
been engaged, contefls about the rights of feamen
to fhares of prizes muil have frequently occur-
red. If then fuch claims v/ere only triable ar
common law, they would doubtlefs appear in fome
of the books of reports. But no actions of this
kind can be found in thofe books, nor even prohi-
bitions prayed for in fuch cafes. The inference is,
that fuch fuits were allowed to be exclufivelv of
admiralty jurifdi£tion.

If Captain Kean had any reafonable objections;
againfl the libellants, he fliould have made thofc
obje£lions before he received them on board, or at


r 6° ]

Icafl before the veffel had weighed anchor and
commenced her voyage.

As the hbellants were in fa£l forced from the
lervice, I do not fee why this wrong, on the part of
the captain, fliould deprive them of the right they
had obtained in this cruife by the enhflment, and
by the captain's confirmation of that enhflment
when he received them into his fervice.

I adjudge that the hbellants have and receive
their refpe6i:ive Ihares of the prize Brig Glocef-
ter, and her cargo, in common with the reft of the
Holker's crew,

N. B. The refpondents appealed from this de-
cree ; but the court of appeals confirmed the fen-


C 6i 3


<vrefus •

Claim by Charles Fhile,


X HE Brig Elizabeth arrived with a cargo ot
^ry goods on the 26th of February 1781 at Glou-
cefter, in the river Delaware, from Cork in Ire-
land : being the property of merchants of Cork,
fubjecls of the king of great Britain when there
was war between Great Britain and America.

Charles Phile, the claimant hearing of this
arrival, procured a deputation from the naval offi-
cer of the port of Philadelphia, dated the 27th of
February; and on the fame day went dowm to GIou-
cefler, and feized the vefTcl under authority of his
deputation, and by virtue of an ail of aifembly of
this ftate.


[ 62 ]

In this manner Phile poiTelTed himfelf of the
veiTcl, and afterwards had her brought up to the
city, fccured her at the wharf, and placed a guard
on board.

After this, viz. on the 2d of March the libeK
lants entered on board this veiTel, and by virtue of
an ordinance of con2:refs of the 26th of December
1776, authorifing " the people of the country, or
" detachments from the army, to make prize of
" the veiTels and goods of the enemy that may
*' happen to be taken near the fhore," — feized
the, brig and her cargo as lawful prize ^ and on the
fame day made report to the judge of admiralty,
that they had (o done. On the 6th they filed
their libel in the regider's office ; and on the fame
day a writ of attachment iffued, and the marilial of
the court took poileinon of her in behalf of the

xIfterw^'^rds, viz. on the 10th of March,
Charles Phile entered his claim in this court for
the vefTel and cargo, as a captor alfo, under the
fame ordinance of congrefs.

These tran factions, as to the manner and time of
the performance, fiand uncontroverted by the par-
ties. Of the remaining teftimony exhibited in


[ 63 I

this caufe, tliere is but one circumftance of any im-
portance, viz. when Phlle made the feizure on the
27th of February, he was ailvcd by the captain of
the brig, by what authority he did it ? and if it was
for congrefs ? To which he anfwered Ndy^'^ w^.f
for the naval officer. Then {hewing the captain his
deputation, he faid, thativas his authority.

Such are the materials upon which this caufe
has been argued, and it is urged in behalf of the
claimant, that notwithftanding the prior date of
Mr. Pringle's Hbel, Phile was in fa^t the firfl and
real captor, and was in the actual polTefnon of the
prize at the time of the feizure made by the libel-
lants : that although the claimant made his feizure
by virtue of the deputation of the naval officei*,
and under the aft of aiTembly, in which indeed he
was millaken in point of law, becaufe the aft does
not touch the velFel, but the cargo only ; yet be-
ing fo poiTeiTed, he acquired a right which could
not be injured by his error in judgment, and was
good againft any fellow- fubj eft : that this right
is founded on two principles, viz. oeciipanc)\ in the
civil, and the doftrine o^ remitter ^ in the common

Under the firft, it is faid. that floods bclon^-

ing to an enemy, being out of the proteftion of the

3 l^^v.

r (54 3

law, may be confidcred as bona vacaniidj and he
who can firfl get poffeffion acquires a right in them
by occupancy ; and that this do£lrine is the only
foundation on v/hich the right of capture is buih :
and, under the fecond, that, where a perfon ob-
tains peaceable polTeiTion of property by an infuf-
iicient title^ having a more ancient and better
title, the law will remit him to his better title,
and confider him as holding under that in prefe-
rence. Both which doclrines are faid to apply in
favour of the claimant in the prefent cafe, inaf-
much as he had poiTeffion of the velTel before the
fcizure made by the libellants and held her by oc^
cupancy ; and that having a good right under the or-
dinance of congrefs to make prize of goods be*
longing to the enemy, and taken near the fhorcj
although in fa£i: he feized the fame by virtue of his
deputation from the naval officer, yet being fo pof-
felTed, the law v/ill not remh him to his better title.

On the contrary it has been urged — That when
the claimant firfl went on board this veffel, he
flood in a two fold capacity, as a militia man of
the country, and as the deputy of the naval officer,
and that the rights and powers of thefe characters
'%re as perfectly diflinft in law as if they exifted
in two diffi:rent perfons : that when he was af-
ked in which capacity he meant to acl, he exprefsly
declared that he made the feizure in behalf of the
4 naval

r OS 1

naval officer : that when an agent fo Ctuate hath
made his election, and afterwards finds himfelf in
the wrong, he cannot have recourfe to his better
power to confirm an a^t done by an infafficient one :
that Charles Phile, the prefent naval officer, feiz-
ed the veflel, but Charles Phile, the militia man,
who muft, in the eye of the law, be confidered as
a different perfon, did not exercife the power given
him by the ordinance of congrefs, and made no
capture in that capacity, and therefore the veffel
remained liable to capture by any militia man who
Ihould think fit to make ufe of the right veiled in
him by the ordinance, notwithitanding he might
find her in the poffeffion of the naval officer, or of
his deputy, who, as fuch, had no power to hold
her under the ad of affembly.

That Phile cannot claim by occupancy more
than the two men who rowed him down the ri-
ver, and went on board with him ; and that the
doctrine of remitter does not apply, becaufe the
ancient and, better right alluded to, was not a right
pecuHar to the claimant, but which every militia
man in the country held in as full force as himfelf,
by virtue of the ordinance of congrefs. And final-
ly, that be that ancient right what it may, the claim-
ant difavowed and rejefled it by his voluntary elec-
tion, which throws the whole do6lrine of remitter

Vol. III. E out

[ 66 ]

otit of the qucfllon, which is fo purely an opera-^
tion of law under particular circumftances, that
the interference of the party is fatal to its efFe^L'.

The queflion which firfl prefents in this caufc
i^^ — Whether the feizure made by the claimant, as
deputy naval officer, operatecj as a capture of the
veffel under the ordinance of congrefs or not ? It is
certain, that when Phile entered on board this
brig, he was poffelTed of two diitincl powers.
By the one, derived from the a£l of affembly, he
might have made a feizure of the cargo only ; by
the other, founded in the ordinance of congrefs,
he might have taken as prize, both the veifel and
cargo. In this fituation the claimant explicitly dif-
avowed and reje£led his right under the ordinance,
not only by words, but by unequivocal actions ^
and the law will not now force upon him a right
fo deliberately difclaimed, to the exclufion of ano-
ther claiming under the fame right, formally and
cxprefsly exercifed.

It is faid, that no advantage ought to be taken
of the ignorance of the claimant on a fudden emer-
gency. But, befides that his procuring a deputation
from the naval officer, and going four miles down
the river to execute his purpofe, cannot be called
a fudden a^l, his fubfequent condua fully evinces

a deli-

r 67 ]

a deliberate determination of the right on which
he meant to depend. He made the feizure in be-
half of the naval ofilcer, under the aft of afiembly,
on the 27th of February, and lield the property
by that title, to the loth of March following, du-
ring which time no libel or information was filed
by him in the admiralty office, no fliip's papers
produced, nor the veilel put by him into the mar-
flial's poffeffion, as a prize taken from the enemy.
Thefe circumftances operate (trongly againfl the
claimant's being confidered as a captor under the
ordinance of congrefs.

But further, even fuppofuig him to have been
the firfl and real captor of this velTel and her
cargo under the ordinance, there yet remains a
legal obilacle to his enjoying the prize; fmce what-
ever right he might have acquired as a captor, he
forfeited it by his fubfequent condu£i:. In the ad-
miralty law of this (late (p. 314) it is enacted, '' If
" any perfon who lliall have charge of, or bring a
'- prize into this port, fliall negled or refufe to de-
" liver up the fame to the marihal of the court of
«' admiralty, and libel her within three days after
" her arrival, fueh perfon fliall forfeit all his inter-

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