The Federal mirror — Concord, N.H., 1795-12-25 00:00:00, page 1

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THE PRIVATEER M’CLARY.
. REPORT
WTH2 OPINIONS or thrJUDGES
in the IMPORTANT CAUSE of
PenbaUow & al. against Doane's
ADMINISTRATORS,
Delivered in the SUPREME COURT of the
UNITED STATES,
•AT FEBRUARY TERM, 179§,
On an Appeal from the Circuit Court for
xthe Diftria of Newbampthire.
^ fah# bypraifon from the note: of&,&<!,s.
In the Supreme Court of the United
States, Feb. Term, 1795.
John Fenhallow,and others, against the
Adminiftratofs of Elisha Doane.
0a fwfdg, the 24th da, of Februar,, 1795,
The Judges thus delivered their Opinions.
• JUDGE PATERSON. °™
/[continued.] <
That, on the 23d March, 1776, Con
^ grefs refolded that the inhabitants of tbefe
Colonies be permitted to fitout arihed ves
sels to cruise on the enemies of the United
Colonics.
That, on the zd April, 1776, Congress
agreed on the form of a commission to com
manders of private fhipsof war ; that the
commission run in the name of the delegates
of the United Coionta of Nowbampfbirc, &c.
AndrasJf,^ty the PrtfdCTt ofCosgrtjs.
That, on the 3d July, 1776, the Legisla
ture of Newhampfhire puffed an aft for the
trial of Captures ; of which the part materi
al in the prefentcontroverfy, lb as follows :
" And be it further enacted, That there
4man be erffled arid confer held i, the
▼ town of Porrfmouth, or some town or place :
adjacent, in the county of Rockingham, *
court of Justice, by the name of the Court
of Maritime, by such able and difertet per- 1
{ son, as shall be appointed and commissioned,!
by the council and assembly, for that per-1
pose, whole business it shall be to take cpg-|
nizance, and try the Justice of any capture
or captures, of any vessel or vessels, that have
been, may or shall be taken by any person
or persons whomsoever, and brought into
this Colony, or any re-captures, that.have or
(hall be taken and brought thereinto.
And be it further enaded, That any per
son or persons who 'hare been, or shall be
concerned in the taking and bringing into
this colony, any vessel or vessels employed or
offending, or being the property as aforefaid,
thill jointly, or either of them by themselves,
or by theirattornies, or agents, within twen
ty days after being possessed of the fame in
this colony, file before the laid judge, a libel
ig writing, therein giving a full and ample
amount of the time, manner and cause of the
qgfeg such vessel or veflels. But in case Jf
anpfuch vessel of veffel^, already brought in
as aforef@, then such libel Iha# be filed
within twenty days next after the passing
this ad, and at the time of filing such libel,
shall also be filed, all papers on board such
vessel or veffelS- to the intent that the jury
may have the benefit of the evidence, there
from arifing.' And the judge ihail as soon
as may be, appoint a day to try by a jury,
the justice of the capture of such vessel or
;, vessels, with their appurtenances and car
goes ; and he is herety authorized and em
powered to try the firmer ^ And the fame
, judge fall! cause a notification thereof, and
foe name, if known, and defcrintion of the
+eflfel,fo brou^rin with the day fa for the
trial therebri, to be advertised in feme news
paper, printed in. the said Colony (if any fuCh
fyhth 0$ f infa'dP°rtf
intent owner
to
'^ vessel, wi!h her cargo and appurtenance,
fel 'or vefrh, issue his warrant to any confit
ble or constables within the county aforefaid.
_^g them or either of them
femble the in habitants of their to w n*refpec.
—— —. 1 : —_ M ri — — ,
[VOLUME KV.] ^'
order, not less than twelve, nor exceeding
twenty tour ; and the constable or consta
bles shall as soon as may be, giveany person
or persons, so drawn to serve, on Mie jury in
said court, due notice thereof, and (ball make
due return of his doings therein to the said
judge at or before the day set and appointed
for the trial. And the said jurors (hall be
held to serve on the trial of all such veflels
as shall have been libelled before the said
judge, and, the time of their trial, published,
at the time said jurors are drawn, uril&s the
judge fliall fee cause to difebarge them or ei
ther of them before ; and if seven of the ju
rors shall appear, and there (halt not be e
nough to complect the number of twelve,
(which shall be a pannel) or if there shall be
a legal challenge, to any of them, so that
there shall be (even, and not a pannel, it Anil
and may be lawful for the judge to order his
clerk, the sheriff or other proper officer at
tending on laid cot, to fill upfhe jury with
good and lawful m^ present ; and the said
jury when so fille^up) and impannelled, shall
be sworn to returna true verdia, or any bill,
claim, or memorial which shall be committed
to them according to law, and evidence ; andl
if the jury shall find, that any vessel or vefleh,
against which a bill or libel is committed t,l
them, have been offending, used, employed|
or improved as aforefaid^ or are the property|
of any inhabitants of Greatbritain as afore
faid, they shall return their verdid thereof to
the said judge, and he shall thereupon con
demn such veflel or veflels, with their car- §
goes and appurtenances, and shall order them
to be disposed of, as by Jaw is provided ; and 1
if thejury shall return a special verdid, there
in setting forth certain fads relative to such
vessel or vessels, (a bill against which is com
mitted f. them) and it fhall' appear to the|
said judge by said verdid, that such veftel or
vessels, have been infeftirig the sea co < 1 of
America, or navigation thereof, or that such;
vessels have been employed, used, impre ed,
or offending, or are the property of an, in
habitant, or intebitaQ of Greatbrita ? as
aforefaid, he the said judge shall condemn
,such vessel or vessels, and decree them :o be
§ fold, with their cargoes, and appurtenances
at public vendue, and shall also order the
charge<of said trial and condemnation to be;
paid out of the money which such vessel and
[ cargo, with her appurtenances shall fell for
to the officers of the court, according to the
"table of tees, last eilablifhed by law of this
colony, and mail order the residue thereof to
be delivered to the captors, their agents or
attornies, for the use and benefit of such cap
tors, and other# concerned therein : and if
two or more vessels (the commanders where
of,fhall be properly commilfioned) shall joint
ly take such vessel, the money which she and
her cargo fhallfell for (after payment of char
ges as aforefaid) shall be divided between the
captors in proportion to their men. And the
said judge is hereby authorized to make out
bis precept under his hand and seal, directed
to the fheriff of the county aforefaid, (or it
thereto requested by the captors or agents to
any other person to be appointed by the said
judge) to fell such vessel and appurtenances,
and cargaat public vendue, and such fheriff
or other person after dedtf&ing his own char-!
ges for the fame, to pay and deliver the resi
due, according to thqfeed of said judge,
And be it enacted, by the aufetty afore
faid, that any person or persons claiming the
whole or any part or share, either as Owner
Or captor of any such vessel, or Vessels, a#
gainft which a libel is fofiled^may jointly,
or by themselves or by their attornies or a-
I^t^^ x^z
fate theicdaim before the said judge; which
claim shall be committed to the jury, with
the libil, whichis srft filed, and thejury shall
thereupon determine and return their ver
did ofwhat part or share such claimant or
claimants shall have of the capture, or cap
'ft^r# person or persons who shall
negtea to file his or their claim in manner
1 as aforefeid, shall be forever barred there
.from.\^
laforefaid;ttyI aforefaid;tty every ^effety^jch shall be ta
C 6 NCOR D, FRID AY, December 25, 1795.
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^m^tl^^ts—t^^
condemned as aforefaid, the Sid judge shall
distribute and dispose of the said vessels, and
cargoes, according to the resolves and or- 1
dirs of the American Congress.
And whereas, the honorabte Continental
Congress have recommended, that in certain
cases an appeal should be granted from the
court aforefaid.
Be It therefore enabled, that from alljudg
ments, er decrees, hereafter to be given in
the said court maritime, on the capture of
any vessel, appurtenances or cargoes, where
such vessel is taken or shall be taken by any
armed vessel, fitted out at the charge of the
United Colonies, an appeal shall be allowed
to the Continental Congtefs, or to such per
son or person, as they already have or shall
thereafter appoint, tor the Irials of appeals,
Provided the appeal be demanded within five
days, after definitive fentericegiven, and such
appeal shall be lodged with the Secretary of
the Congress, within forty days afterwards ;
and provided the party appealing, shall give
security to prosecute the said appeal with ef
:fea ; and in case of the death of the fibred-
I ry,duri ^ "he recess of the Congress, 'the faid'
I appeal it '^ged in Con^refs, within
twenty oaf .: he oerf meeting thereof ;
and that from the judgment, 0 'frees, or fen-.
I teuceof laid court; on the capture of hnwvef- 7
I fel, or cargo, which have been or shall her,
after be brought into this colony, by any per-1
son or persons, excepting those who are in|
the service cf the United Colonie, an appeal
shall be allowed to the fnperior court of jtiJ
dicature, which shall n^t be held in the ;
county aforefaid.
And whereat no provision has t
made by any of the said resolves for
an appeal from the sentence or de
efaid judge, where the cap
den a' 16^ such vessel or veffeli may
cr^e by a vessel in the service of
& I 1 d ^Coloniet, and of toy par
d&Ur colony, or person together :
Therefore be it enacted by the au
gbprig aforefaid, that in such cafei,
the appeal shall be allowed to the
then next superior court as aforefaid :
Provided the appellant shall enter in
to bonds with fufficient furetiei to
prosecute his appeal with effedb.
Abd such superior court, to which
the appeal shall be, shall take cogniz
ance thereof, in the fame manner as
if tireappeal was from the inferior
court of common pleat, and shall con
demn or acquit, such vessel or vessels,
their cargoes, and appurtenances, add
in the laity and disposition of them,
proceed according to this ad. And
the appellant shall pay the court, and
jury, such fees as are allowed by law
in civil aalons."
That, Qn the 30th January, 1777,
Congress r^folved, that a standing
committee, to confiff of five mem
bers, be appointed to hear and deter
mine upon appeal# brought againftl
fentencti passed on libeh in the court#
of admiralty in the refye&ive dates.
fr That Jota Stackpole, a citizen of
Newhampihire, commander of the
aimed brigantine, called the M'C^ry,
^^##
of Oftober, 1777, on the high feat,
capture the bfeniine Lufena, a#
"t^Te V Air Tfo
W^U^teß ^
thaniel Fo|fom, fol Sherburhe,
ch"rd RO'^
nefe all citizen 'of Newhampfhire,l
were owners # brigantine M- 1
Clary,
- That Geor| Wentworth was a
6# the ,ftb & ^ll
I 11,,,I 1 ,,, a libel bn exbiblieci in me#
thenames of John Penhallow and Ja
cob Treadwell, in behalf ofjheown
m of the M'Clary, and of George *
Wentworth, agent tor the captors, a
gainst the Luftona, and her r%o ;
to which- claims were put in by Ehfha
Doane, Ifiiah Djane, and; James'
Shepherd, citizens of Mass chufe%
That on the i6<h December, <7,7,
a trial was bad before the said court,
when the jury found a verdid io fa
vor of the libellants •,' thereupon
judgment was rendered, that the Lu
feot, her cargo, &c, fbould be for
feited, and deemed lawfur prize, and
the fame were thereby ofgeted to be
distributed according co law.
That so appeal to Cungrefs war.fa
Idoe time, demanded, bee retoted by
I the said court! because it te courary
to the law of the Amtf
That then the "id claiming pray
ed an appeal to the superior court &
Newhampfhire, which win granted.
That, on the fi ft Tuefday of Sep
I : r./^r i„8, the superior court of
I Newh« nrfhhr. proceeded to the trial
; <Qhe laid appt% A hen the juty found
] iofavCT^ fi " lib^i : ', .that ^e^-
I Upon the f ^ e^ jx:g.rrwf that
hide Lofars, vUW^ r r goods, Horned
by Est ^^, if^ Do^e, CT
James Shepiu 1 were ior^d to the
libellants, and the hrne ^^' ^^ei
to be fold at public vendw^'x ^'^
use and benefit, and that the p'oca*ib„fe
thereof, sfterteeduaing the ^ , of. 1
suit, and charges of tale, be pa, to
John Penhallow and Jacob Tread
well, agents for the owners, and to
George •Wentworih, agent for the
captors, to be by them paid and dif
tdbuted according to law.
That the claimants did, in due
time, demand an appeal from the said
Sentence to Congrefi, and did also ten
der fufficient security or caution to
prosecute the said appeal toeff^t,and
that the fame was lodged in Contyrefa
within forty days after the definitive
sentence was pronounced in the fupe
tior court of Newhampthire.
That, on the ninth of Odober,
1778, a petition from Elisha Doane
wo read in Coogreft, accompanied
with the proceedings of a court of^ _
miralty for the state of Newhamp
fbire,on the !ibel, Treadwell and Pen
hallow, vetfus brig Lufanoa, &c.
praying that he may be allowed an
appeal to Congress ; whereupon it °
was ordered; that the fame be refer
red to the committee on appeals.
Fourth journal of Congress 586.
& That, on the 26th June, 1779, the
commissioners of appeal, or the court
of commissioners, gave their opinion
that they had jurisdiaioo of die cause.
That the Grtictes of confederation
bear date the 9th July, ty^and
were ratified by all the states on the
aft March/ 1781.
That§ by chefe articles, the United
States were v,fted with foie Qw
clufive power of establishing courts
IPppeftil l all caica ui
in cases of capture." By the commil
fion the judges were to bear, try,^
and determine, ill appeals from the
rnurta ot 'Bumtraitv m the itatea nr-
I fpeai<ely, in cates or capture,.eus
[NUMBER 166.] 1
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