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his crew, with written orders to the prize mafter
to take her into the port of New London, then not
far diftant, for condemnation.

The next day after the capture, the three brigs,
Achilles, Patty,, and Hibernia, belonging to the
refpondents in this caufe, came up with the Betfey,


r 133 ]

under Britifh colours. Captain Talbot taking
them for enemies, was obliged to leave his prize,
and fly : whereupon one of the three brigs chafed
the Argo, whilft the Patty fired upon, boarded,
and captured the Betfey.

West, the prize mailer, finding them to be
Americans, declared that the Betfey was a prize
of captain Talbot, in the Argo, then in fight, and
fhewed Talbot's written orders to him : but for
fear of their claiming {hares of the prize, as hav-
ing been in fight when flie was captured, alTerted,
that flie had been taken three days before. The
pcrfons who boarded the Betfey having feen a bat-
tle the day before, between a brig and a floop,
which they believed to be the fame ; and obfcrv-
ing that the number of men on board, correfpond-
ed with the number regiftered in her Britifh pa^
pers, concluded that no credit fhould be given to
V/efl's declaration. Whereupon, a confultation
was held by the three captains,* who finally made
prize of the Betfey, took out all the Argo's men,
except one negro, and putting their own people
on board, ordered her for Philadelphia. But fhe
was foon after captured by a Britifli cruifer,

1 ?, and

* According to W D« 's dcpofitioii.

C 134 ]

and carried into New York — and fo lofl: to all
parties. The three brigs purfued their refpeftivc
voyages; taking the Argo's men with them, whom
they left in Spain, and other remote parts.

The refpondents have refted their defence on
two grounds of argument : Firji^ they alledge,
that they have produced fufEcient teftimony to
prove that the brigs Achilles, Patty, and Hiber-
nia, were within fight, when the Argo engaged
and captured the Betfey, and acquired. thereby a
property in the prize, according to the maritime
law : inferring, that as their intereft in the booty
was much greater than that of the Argo, they be-
ing three to one, they had a right to order the
prize where they judged bed for their fecurity
and benefit ; more efpecially as they had reafon
to doubt the fidelity of Welt, in whofe poffeiTion
they found her, on account of the fallhood he had
told them : concluding, that if any injury was
done to the libellant, it only amounted to his pro-
portionable fhare of the booty, for which alone
they ought to be anfwerable. Secondly^ that ma-
ny fufpicious circumftances on board the Betfey —
fuch as the Britifh papers, the number of men on
board agreeing therewith, and the declaration of
Weft, that flie had been captured three days be^


r 135 1

fore, contrary to their own obfervation, were fuffi-
cient to induce them to conclude that the whole
was an artifice ; and, therefore, they were jullifia-
ble in taking her as original prize, and to confider
thcmfelves as the firil captors •

These two pofitions of defence are fupported

by the teftimony of W D , a paffenger

on board the Patty. This depofition, on which
alone the refpondents have relied, labours for the
eftablifhment of two fa^ls which are altogether
incompatible with each other, viz. firft, that the
three brigs faw the Argo engage and capture
the Betfy; and, fecondly, that the Betfy had
not been captured at all, or, at lead, that the
captains of the three brigs had good reafon to
think fo, and werejuflifiable in taking her as ori-
ginal prize. One only of thefe pofitions can be
true : therefore, a teflimony which labours to
eftablifli both, may, at leaf!:, be faid to prove too

The fa£i: bed fupported by the circumflances
feems to be, that the three brigs were in fight of
the battle between the Argo and Betfy. What
then was their conduct in this point of view ?
The next day after the engagement, of which


r 136 T

they had been diftant fpeftators, they come up
under Britifli colours ; they find the Betfy in
the polTeffion, and under the proteftion of the Ar-
go, her captor ; they chafe away the Argo, and
fire on the prize under Britifli colours ; they
board her ; take out all the people placed on
board by captain Talbot ; man her with part of
their own crews ; give her in charge to their
own prize-mailer, and order her for Philadelphia.
Could their having been in fight, the day before,
of the engagement between the Argo and the Bet-
fy, juilify fuch a procedure ? Surely it could not.
Befides, it is manifefc, that the rule of law refpe£t-
ing veffeis in fight of a capture does not refer to
what may have been feen by the claimants,* but
by people on board the prize: for the rule is
founded on a prefumption, that the crew of the
captured veiTel, feeing others coming up armed and
prepared for battle, were thereby induced to

Further, I can on no accoimt admit the doc-
trine, now for the firil time advanced, and unfup-
ported by any authority whatever, that captains,
claiming a fiiare in the prize they may have feen
captured, have a right to order the booty where
they Dleafe, by vi.tue of a majority of votes, or


[ '37 J

of theirfuptrlor interefh in the captured property.
Their claim mufl follow, and depend upon the
fuccefs of the real captor. Befides, in the prefent
cafe, the libellant who fought for, and alone took
the brig Betfey, had at lead fome right in the
prize : the captains of the three brigs therefore,
ought in juftice, to have left his prize-mafter on
board to profecute the Argo's claim, which was
not done.

Upon the whole, this feems to have been an a£l
of fuch unjuilifiable violence and wrong, on the
part of the brigs Achilles, Patty, and Hibernia,
that I am clear in deciding in favour of the libel-
lant in this caufe. And, having carefully afcertain-
ed the value of the property loft, I find that a brig
of 200 tuns, mounting eight fix-pounders, with
her tackel, apparel, furniture, and provifions on
board, was, in 0£lober 1779, worth

£ 35500 o o
214 puncheons of rum, averaging

100 gallons each, at lo/b per

gallon, 10,700 o o

I quarter-cafk, 25 gallons, 12 10 o

^.14,212 10 o

[ I3S J

Total, £^ 145212 10 <5

But as the brig Betfey had not yet

arrived in port, and allowance

fliould be made for the rilk

file had to run, which appears

to be worth 10 per cent, in-

furance, amounting to 1421 5 o

Which being dedu£led, leaves ^T. 12,791 5 o

Judgment in favour of the libellant for
jT. 1 2,79 1 5 o, with cofls of fuit.*

* No difcrimination was, in this caufe, attempted to be made be-
tween the three captains of the brigs Achilles, Patty, and Hibernia t
the principal fafts were attributed to all, and the judgment was ge-
neral againft the refpondents.

The caufe was carried by appeal, to the court of appeals in prize
eaufes eftablifhed by congrefs ; but the judges rejected the caufe,
conceiving it to be a luit between citizen and citizen for damages
merely, and therefore not within their jurifdidlion. The court was
foon afterwards diflblved on account of the peace. The appellants
then removed their caufe to the high court of errors and appeals for
the commonwealth of Pennfylvania, where, after long arguments,
as well refpedingthe jurifdidion, as on the merits, a decree pafled
in favour of Silas Talbot for ^^.n, 141 5 4, with cofls.


C 139 ]



judgment on a Flea to the yurifdiclion of the


J-N a former fult in this court, Silas TabotYihd"
led and recovered againft Deans, Purviance, and
Harbefon, as owners of the brigantine Hibernia,
and alfo againft certain other perfons, refpondents
in that caufe, for a wrongful capture on the high
feas. From the decree in that caufe, an appeal
was made to the high court of errors and appeals
for this commonweakh, where a judgement was
finally obtained againft the faid refpondents, to a
confiderable amount. And now, Dean Purvi-
ance, and Harbefon, owners of the Hibernia libel
againft John Angus, their captain, for fatisfaflion
of the damages they have fuftained, in confe-
qnence of the wrongful capture he had made.


r 140 3

To this libel, Angus hath filed for anfwer, a
denial of the wrong done, and a plea to the ju-
rifdiclion of this court in the prefent caufe: " For
** this, viz. that the contract between the faid H-
*' bellants, and him the faid Angus, and alfo the
^' damage allcdged to be faflained by the faid li-
'^ bellants, if any there be, arofe upon the land,
** to wit, in Philadelphia, in the county of Phi-
" delphia.'^

Three acknowledged principles of law nata-
rally prefent for the folution of the prefent que-

tft. Where the original caufe of a£i:ion is ex-
chifively of admiralty, or exclujively of common
law jurifdii^lion, all incidental matters necelfarily
flowing from or dependant upon the firil caufe of
aftion, fhall follow the original jurifdiclion, what-
ever the complexion of thofe matters, feparately
confidered, may be.

2dly. Where the original caufe of action is
partly of common law, and partly of admiralty
junfdi6lion, the common law ihall be preferred.

3dly. Where the jurifdi£lions are concurrent,
the fuit may be determined in either.


[ UI ]

To one or other of thefe principles mufl: the pre-
fent cafe apply : to afccrtaia the jurifdi^ion by
which it is to be tried, and the propriety of the
application depends upon this fole quedion. What

is the original caufe of a£lion in this fait ?

. It is alledged in fupport of the pka, that this
is a new action between the owners of a veiTcl and
their captain, and hath no necelTary connexion with
the fuit brought by Silas Talbot: that ii is enough,
if the refpondent fliews that the decree pall againft
the libellants, not as principals in the wrongful
capture, but folcly on account of the maritime
law, which makes owners anfwerable for the mif-
condu£l of the captains they employ ; aed there-
fore their connexion with Angus, as captain of
the Hibernia, mud be contidered as the true
caufe of the damage they fay they ha¥e fuilain-
ed, and the fource from vvdiich the prcfent fuit
originates. And fo infer, that as this connexion
is grounded on a contrail exprefs or implied, made
upon land, the original caufe of aclion muil, from
its nature and locality, be exdufi^cly of common
law jurifdiclion.

Tke two criterions of exclufive imifdlclion
are, the fubjed matter^ and the locality of the


C U2 1

It is not doulDted, but that the quellion, prlzi
or no prize? when it is the foundation of a fuit, is
exchifively of admiralty cognizance from xhcfubjed
matter. The authorities to this point are too pre-
cife to admit of doubt. But fome of thefe autho-
rities go further ; and fay, that the mere taking as
prize ^ and all matters dependant thereupon, are
alfo peculiarly of admiralty jurifdiftion. Ld. Ch^
Jus. Lee's opinion, in the cafe of Rous verfus Haf-
fard, as cited by Lord Mansfield, and again cited
by juitice Willis, in the cafe of Le. Caux verfus
Eden. Douglafs, 581, is full to this purpofe*
^ The great queflion was, Whether an action fof
' trefpafs would lie for taking a fliip as a prize ?
' Lord chief juflice Lee^ having called in two
' civilians to his aiTiflance, delivered the opinion
^ of the court* That though, for taking a fhip
' on the feas, treffpafs would lie at common lawj
' yet when it was taken as prize^ though ta*
' ken wrongfully, though it were acquitted, and
' though there zvas no colour for the taking, the
' judge of the admiralty was judge of the daraa*
' ges and colls, as well as of the principal mat-*
' ter : and he laid it down as law, that, if fuch art
^ a£i:ion was brought in England, and the defen-
' dant not guilty J xhc plaintiff could not recover."


[ 143 1

It Is clear by this authority, that in ordcf
to fix the admiralty jurifdi^tion, it is not neceffary
that the queflion before the court ihould precife-
iy h^j^ prize or no prize ? but that a fuit for coits
and damages may and mud be brought in the ad-
miralty for a taking as prize y though wrongfully
done, and even without any colour for fuch ta-
king, and, as it fliould feem from the cafe^ even
though the property fo taken Ihould not be in the
poiTeilion of the court.

So alfo, in the cafe of Lindo veifus Rodney
and Vaughan (Douglafs, 592.) Lord Mansfield, in
giving the opinion of the court, fays : " A thing
*' being done upon the high feas, does not exclude
*' thejurifdi£i:ion of the common law ; forfeizing,
^^ flopping, or taking a fhip upon the high feas9
*' not as prize^ an aftion will lie, but for taking
*' as prize^ no a^ion will lie. The nature of the
**^ queflion excludes not the locality." And a
little further on—" The end of prize-court is
" to fufpend the property till condemnation, and
^' to punijh every fort of jnijhehaviour in the cap*
" tors:'

How It came to pafs that the cafe of Silas Tal-
bot was, by the court of errors and appeals, and
ftill is, by conceiTion of council in the prefeni:


t 144 ]

caufe, confidercd to be not of admirality jurif-
di^ion on account of xhtfubjed mattery I am at
a lofs to conceive ; efpecially when I look at the
two only points of defence taken in that caufe,
viz. firft, that from the papers found on board
the captured velTel, and from other concomitant
circumftances, there was a reafonable colour for
taking as original prize* And, fecondly, that if
the Betfy was indeed prize to Silas Talbot, the
three brigs were in fight at the time of the cap-
ture, and by the maritime law, acquired thereby
an interefl in the property. I fay, thefe pleas, to-
gether with the current of the teftimony then ex-
hibited, and the time of the tranfaftion, being
time of war, all united in fixing that caufe within
the admiralty jurifdi^lion, from the fubje(fl mat-
ter, and the very nature of the cafe.

It is in obedience to ftrong conviftion that I thus
venture to differ in opinion from thejudgment of the
honourable court of errors and appeals : a judgment
which I am inclined to believe would not have taken
place, but for the peculiar fituation of Talbot's
caufe. The court of appeals for the United States, in
prize-caufes, had rejedled the appeal, becaufe the
I queflion

C 145 1

queftion was not finally, prize or no prize ? but
an a^ion for damages between citizen and citi-
zen. That court, as I have underHood, looked
at that caufe in no other point of view, and there-
fore refufed to take cognizance of it, and foon
after was dilTolved* The appeal was then car-
ried to the high court of errors and appeals
for this commonwealth. Here the pro£lors had
made a previous agreement, not to contell the
point of jurifdi£lion ; and fo the caufe came be-*
fore the judges on the merits only, and the
court proceeded to fentence without fufpecling
their jurifdiflion. After fentence, however, fome
of the judges began to entertain fcruples refpecl-
ing the jurifdi^lion of the court ; and, on enquiry,
found that the jurifdi£lion had only been Submit-
ted to by confent. The court well knew that
confent could not give legal jurifdi£l:ion ; and there-
upon retrafled or fufpended the fentence until an
argument fliould be held on that point : and
the queftion of jurifdi£lion was again agitated.
In the meantime, that is between the rejection of
the caufe by the court of appeals for the United
States, and its introdu£lion into the court of the
commonv/ealth, the cafe of Le Caux verfus Eden,
as reported by Douglafs, with Lord Mansfield's
dilfertion on admiralty jurifdiclion fubjoined, made
Vol. III. K their

I 146 J

tlieir firft appearance amongfl: us, and furniflied
new ideas refpe6llng the court of adiniralty.
Then, for the firft time, did the diftin^^ion occur,
between the prize-court and the inftance court
of admiralty. PoiTefTed of this idea, the judges
of appeal for the ftate, looked at the proceedings
which the court of admiralty had adopted in the
cafe before them, and found they had been in
perfonam^ by attachment, to anfwer for damages
arifmg from a tort committed at fea. This, it
was obferved, was never the practice in the prize-
court, which always proceeded i?i reniy by procla-
mation and monition, whether the property be in
fa£t in the poffeffion of the court or not : and
fo it was in the cafe of the king verfus Broom,
Carth. 398. by proclamation at the Royal Ex-
change, although the prize taken had been previ-
oufly fold at Barbadoes. And for this error of
form in the admiralty, Talbofs cafe was confidered
as belonging to the inJlance-LQWxx., The judges of
apppeal confidered themfelves as an inyiance-court
of appeal, and fo proceded to the definitive de-

Had the court of admiralty, when Talbot's
caufe firft made its appearance there, been pofifclT-
ed of the light which hath been fince thrown up-

[ 147 ]

on this fubje^l:, It is very probable that the procefs
would have been condufted otherwife than it was.
It fliould be obferved, however, that an exclujive
jurifdidlion cannot be fubverted by an erroneous

How far the confideration, that if the court of
appeals for the commonwealth fliould reje£l: Tal-
bot's caufe (as the court for the United States hadi
done) the appellants would have had no other re-
iburce, and fo have been deprived of the benefit
of an appeal altogether, might have operated to
induce the judges to take that within their cogni-
zance as an inftance-zo\xxi^ I will not prefume to
fay ; but the peculiar circumflances of the cafe
ought to be remembered : and I have mentioned
them on this occafion from a fenfe of the duty
I owe to the jurifdi£l:ion entrufled to ray care.

I come now to confider the origin of the caufe
now before me, and whether it is, or is not, necef-
farily dependant upon, and confequential to, the
cafe of Silas Talbot^

It has been faid, that this fuit is derived from
three circumftiinces, viz. the contract by which
Angus was made captain of the Hibernia, the
wrongful taking at fea, and the damages the li-

K 2 bellanis

r '48 ]

bellants have been obliged to pay in confequence
of this contra6t and wrongful taking. And it has
been urged, that as two of thefe circumftances
viz. the contraft and the payment of damages,
happened on the land, the common law, by the
fecond general rule,hath the exclufive jurifdi£i:ion.

It appears to me, however, that owners are
anfwerable for torts done by the captains they
employ, under a general principle of law, and not
by virtue of any ipecial contrail whatever. No fuch
Tcfponfibility can be deduced from any articles, or
failing orders given to captains of vcflels. The
contract may be the ground of an a£lion of da-
mages for a breach of orders, refpe£l:ing the par-
ticular intereils of the owners ; but in cafes of
tort the owners are anfwerable by a general law.-*
The libellants have been obliged to pay the dama-
ges in Talbot's cafe, not becaufe they employed
captain Angus, but becaufe they were owners of
the brigs.

Neither can I confider the payment of mo-
nies, according to the decree in favour of Silas
Talbot, as the origin of the prefent fuit. We fhould
not (lop fhort in the train of caufes. In fuch a train,
every circumftance is the effedl: of the preceding
and the caufe of the fubfequent link. No decree


r 149 1

would have pad, no damages have been paid, nor
would the prefent fuit have been inilkuted, but
for the original wrong done at fea. To this
wrong, therefore, we mufl have recourfe for the
fource of the prefent adion.

Some pains have been taken to apply the cafe
of ranfom bills, charter parties, and policies of
infurance, all fueable at common law, to the pre-
fent fuit. A ranfom bill fuppofes a divefture of
property by the rights of war, and the bill is a
promilTory note for a certain fum, in confidera-
tion of the victor's relinquifiiing his right of con-
qued, and relloring the propeny. In a fuit,
therefore, on a ranfom bill, the queftion of prize
or no prize can only come in incidentally, to fliew
whether there was value received or not. For if
the taking was wrongful, the property never di-
vefted, and of courfe the promiiTory bill was gi-
ven without confideration. Charter parties, and
policies of infurance, are written contradls, execu-
ted on land, refpec^ing certain fpecilic contingen-
cies : it is immaterial where thefe contingencies
fhall happen. The fuit is founded on the bind-
ing force of the contrail, and the contingencies
are only incidental circumllances, fhewing that
the force of the contrail is to take place and ope-
rate. But thefe are not parallel with the cafe

K 3 before

[ I50 ]

before the court, wherein the libellants complain
of damages they have fuftained in confequence of
a tort committed at fea by the captain they had

When the cafe of Silas Talbot came firfl be-
fore this court, the libel was filed in the name of
Silas Talbot, qui tam^ againft the brigs Achilles,
Patty, and Hibernia, and againft certain perfons in
the faid libel named, as owners and captains of the
faid brigs. All thefe perfons (except two, if I
rightly remember) appeared either in perfon or by
proxy, and entered into ftipulations, according to
the practice of the court. In this form the fuit
commenced, and proceeded through the admiralty,
and through the court of appeals. The queftion
was general in both courts, viz. Whether there had
been a wrong done? and if fo, whether the parties
who appeared as refpondents to the libel, were
anfwerable for the damage, and to what amount ?
And, finally, the decree was alfo general — That
the appellants fliould pay to the appellee certain
monies in recompence of the injury fuftained. But
how far any particular captain, or the owners of
any particular veflel might have juftified themfelves
by a feparate defence, was never the fubje^l of en-
quiry. No fuch fpecific juftification having been
|)roirered in either court. And whether it is, or is


r 151 3

not now too late, to make difcnmination5maybe the
fubje£l of future difcuflion : but I mention this to
fhew, that the prefent Hbel rifes out of Talbot's
cafe, and that its purfuit will unavoidably force us
up to the wrongful taking as prize for the origin
of the prefent fuit. Since then, I cannot but con-
fider the cafe of Silas Talbot, as properly belong-
ing to the prize-court of admiralty, and that the
prefent fuit originates from, and is a fupplementary
part of that tranfa£tion, I cannot (according to the
firfl principle ftated) but over-rule the prefent plea
to the jurifdi£i:ion of this ceurt.

I conclude with this obfervation — That in all
pleas of this kind, where the law is doubtful, the
leanine of the court will be in favour of its own
jurifdi£lion — not from a defire of extending the
admiralty cognizance, but for this confideration — ■
That if the decifion in favour of the jurifdiftion
fhould be erroneous, the doors of the common
law are open for redrefs, and a prohibition may
be obtained. But there is no remedy for the er-
roneous cxclufion of parties who apply for the
procefs of the admiralty, the benefit of the laws
by which it is governed, and the fummary juftice
it affords.

May, 1785.


[ »52 ]





1 HE bill filed in this cafe dates, " That John
Angus, being commander of the brig Hibernia,
belonging to Jofeph Dean and others, did, on a
certain day, without any licence, order, or autho-
rity, from his owners, and without any probable
caufe of capture, with a view to his own private
intereft and emolument, combine and confederate
with certain malefactors, and did purfue and take
the brigantine Betfey, then in the pofleffion of
Silas Talbot, commander of the (loop Argo, as
lawful prize and booty of war. And that the
faid John Angus, not being ignorant of the pre-
mifes aforefaid, but well knowing the fame, and
intending to deprive the faid Silas Talbot of his
prize, and to defraud and injure, as much as in



r "^sz ]

him lay, his owners, the libellants in this caufe,
did caufe the brigantine Betfey to be fent to places
unknown, &c. whereby fhe was loll, &€." —
" That for this caufe, the faid Silas Talbot did
afterwards file his bill in this court againft the faid
John Angus, and againfl his owners, the prefent
libellants, and alfo againfl certain other perfons,

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