The Federal mirror — Concord, N.H., 1796-02-23 00:00:00, page 1

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1 _ BY RUSSELL AND DAVIS. ''
1 __ _ —_&&—=. —_— _ — _— —: —=— —
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IMore about the M'CLARY.
I A STATEMENT . 7^
, Os the CAUSE of the M'CLARY
4 OWNERS,
' And DOANE & DOANE's Administrators,
•-From its Commencement in 1777,
To its elofe in the SUPREME COURT of the
G United Stares, Feb. 1795.
1 „.==..
Mifea-— —übi jus tf-w^gun aut inregnifum,
1' [CONTINUED.].
TT was also deposed by a number of per-
I ^ font, that they were at Halifax, some-
L time during the war, and were well ac
quainted with Meffrt, Cochrans ; to whom
a large part of the Lufanna's cargo was
ft consigned in her voyage, in.which the was
I, captured. And that they were oocat that
time, to their knowledge, agent victuallers
for the army of the King or hit navy, or in
>any manner concerned in Applying them ;
% butthat other perfoot, naming them, were
—that the Messrs. Cochrans had always
b, treated the American prisoners ^with kind-
Defa, and that they imported provisions, &c.
for file to the inhabitant#. Though one
• Captain who was in Halifax, from Decern
ber 1776 to June 1777, depoftd, u that he
was well acquainted with Messrs. Thomas
and James Cochran, merchants in Halifax ;
that they Supplied the King's troop, with
; ^ provisions, that they had several vtffels in
the tranfpor t let vice, fete hing coals and pro
vlflumiand that they also Applied the
inhabitants with provisions. With refpea
, .Aid Capt. James Shepherd, it appeared, that
he failed from America, in 1775, in afhip
belonging to Mr. William Dennie of Bof
, ton, for Southcarolina and Ruffis ; that on
^ bis return, he put into Halifax, when it does
not appear, but prior to May „d, 1776,
(Boston, “ and all ,he NewengUod potto
I, tying then (hut up," as Dennie in hit dep
osition expreffei it) that his yeffeltaitbere
seized, and condemned by the British § that
he appealed to Greatbtitaia, ,^^ there
{' ^ to profecute_his appeal. That b(tyok .pg
sage in the Lufanofon her voyage from
London to Halifax ; but was ataeyme pt
p her departure, unable by Gd@e6, to pro
7<eed in her ; that the article# Whipped on
i te board her by him, although he did not go
himfelf, were sent. And that he appeared
to be friendly to the cause of America. .Up
on this evidence, with what had been offer
& ed to the court below, the cause was com
* minted to a Jury, who gave a verdia.—
" That they find the fads as set forth in the
I libel true, and the goods forfeited to the li
:bellana.% The court accordingly rendered
judgment, that "it is considered an&deter
rained, that the said brigantine Wanna,
¥ with the good# claimed by Elisha Doanes
, Isaiah Doane and James Shepherd, are for
' feited to the libellants; and the fame are
L' ordered to be fold, at public vendue, by the
, ffieriff of the county of Rockingham, for
i their use and benefit, and that the proceeds
if thmrpnf affmr dpdriAino thr rharofinftri^l
amounting to the of and of fale'
p uwuuuuub iu vuu wut ui row vi IBic,
1 he naid to lohn Fenhinow and larch
p, Treadwell, agents tor the owners ot laid
armed vessel, and to George Wentworth,
agent for the captors, to be by said agents,
paid and diftribured, according to the law
of this State, in that case made and provid
ed." ,
'&may be nect ffary to observe, that a
part of the cargo being consigned to differ
ent persons at Halifax, and not claimed at
the lo^er,court, was there condemned. And
no appeal being taken therefrom, its deciL
ion refolding it was final. °
After judgment was rendered in the Su
perior Court, an appeal was again claimed
by Doanes and Shepherd, to the American
Coogreh, upon the feme ground as below ;
and rejected. As by the law of the State,
the Superior Court had the final appellate
jurifdiaion, in all maritime causes, except is
one ipfta,ce.
It will here readily occur, that the Judg.
es of the Superior Court, constituted by the
laws of the State, under oath bound to ad
here te them, whatever their views of the
frnefs or propriety cf Congrefi, or a court
Conftifufed by them, being the final judges
in prize caules might be, could not but re*
fife the appeal claimed by Messrs. Doanes
and Shepherd, as the law of the State was
clear, that no appeal fhoold be granted.—
The consequences tq the individuals con
cerned on either fide, could not enter into
their judgment ; whether it foreboded ruin
or riches to cither party, the la # of the State
had confined them ; and they could not
, without breach of weir, oaths (offer the ap
peal.
On the 9th of Od. 1778, Eilha Doane
presented a petition to Congress, “ praying
that he might be allowed an appeal to Cou
grefs •," which was referred to the commit,
tee on appeals, who by the resolve appoint
ing them a ftandiog committee, were " to,
hear and determine upon appeals, brought
against sentences passed on libels, in the
courts of admiralty in the refpeaive States,
agreeable to the resolve of Coogrefi."
foThisi (committee issued a notice for the
parties to appear before them, they appear
ed; and the counsel for the owners of the
M'Clary put in a plea to their jurifdiaion,
which was argued by the counsel ; and on
the 26th of July 177% this plea was over
ruled. The court giving their opinion,
66 that by the refolution# of Congress, of the
25th Nov; 1775, which have since been ex
plained and confirmed, by certain other ref
oluticns of the 6th of March last, they have
jurifdiaioD of this eaufe : but as the law of
Newhampfhire militates with said resolves,
and those last mentioned have been trans
mitted to said State ; the court declines any
further proceedings io the premises, until
they are advised, of the result of the delibe
rations of said State refpeding the resolves
aforefaid."
In January 1780, the committee or cofa
miffioners of appeals were di(charged ; and
a court of appeal in cases of capture was ef
tainted, who, by their commission, were
“ to hear, try and determine ell appeals
fromthe courts of admiralty in the Stares
tefpeaively, in cases of capture, which now
ate, or hereafter may be duly entered and
^ _t_-—CT.^tratotttfyted^^
CONCORD, TUESDAY, February 23, 1796.
.made in any of she bid States." And, on
the 2,h of May, 1780, Congress resolved,
"'that all matters refpeaing app als, in cas
es of capture, now depending before Con
grtfs, or the commiffiooers of appeals, con
fiding of members of Congrtfs, be referred
to the newly erected court of appeals, to be
there adjudged and determined according to
law ; and that all papers touching appeals,
in cases of capture, lodged in the office of
the Secretary of Congress, be delivered to
and lodged with the regifteyof the court of
appeals," this eaufe was accordingly brought
forward in the court of appeals, and without
giving new notice to the parties, in Septem
ber 1783, was tried. It having rested, from
the time of the decision of the committee'
1 of appeals in 1779, '"at they hid jurifdic
tift to that time. The M'Clary owners
did not know of its being intended for trial,
until it was too late for them to appear, with
inftruaioos to their counsel. .Their coua
tel however, who had been employed be
fore the committee of appeals, again plead
ed to the junfdiaion, or infilled again upon
the plea, which had originally been given
in before the committee 1 and with the
fame fuccefa As this new court of appeals
determined they had jarifdiaibn, and pro
ceeded to the trial of the merits ; and did
finally adjudge and decree, that “ the sen
tences or decrees passed by the Inferior and
Superior Courts of Judicature of Newh,mp
ffiire, so far as the fame lefptded Eiftia
Doane, Ifiiah D@e and James Shepherd,
fhoold be teveked, reverted and annulled 4
and that the property fpecififd in their
claims mould be feftored,,
Thus existed two co^tradiaory final de
crees refpeaing the fame fubjeCh Ihe de
cree of the Superior Court of Newhamp
fhire final, by their laws, that the M'Clary
owners should retain the property of the
Lufanna, and the part of the cargo claimed
b'y Doanes and Shepherd. And the decree!
of the court of appeals, filial by the resolves
of Congress, that it should be reftored,—
And the question was now almost reduced
solely to this : which jurifdiaioo, in the va
rious chances of revolution of government
and. cbnftitution, should prevail over the
other ? Newhampihire laws had guararfe
teed it to the owners of the M'Clary, Cop
greffional determinations, or father their*
courts, had endeavoured to nullify this gua#
rantee. It was a conflift, dreadful to the
individuals, who had to bear the expendi
tures, necessary to ascertain whether the
federal, government, or the state govern
menft ffiould finally prevail. And possibly, *
in this fringe changing |@ of things, of
which we fee such strong instances in the
old world ; state jurifdiftion may in a snor
ter term than from 1783 to 1795, be again
placed upon a footing, which cannot be al
tered, without a revolution of a similar -
courfeof years.
Immediately upon the determination of
the court of appeals, the owners of the
M'Clary presented a memorial to the legif
=^T^-,Jfa
cnmttance, that their laws were adjudged
and decreed to be of no force, by a court
N°. 174.
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