3 U.S. 54 (1795), Penhallow v. Doane's Adm'rs

Citation:3 U.S. 54, 1 L.Ed. 507
Party Name:Penhallow, et al. v. Doane's Administrators.
Case Date:February 24, 1795
Court:United States Supreme Court

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3 U.S. 54 (1795)

1 L.Ed. 507

Penhallow, et al.


Doane's Administrators.

United States Supreme Court.

February 24, 1795

This was a Writ of Error, directed to the Circuit Court for the District of New-Hampshire. The case was argued from the sixth to the seventeenth of February; the Attorney General of the United States, (Bradford) and Ingersoll, being Counsel for the Plaintiffs in error; and Dexter, Tilghman and Lewis, being Counsel for the Defendants in error.

The Case, reduced to an historical narrative, by Judge Paterson, in delivering his opinion, exhibits these features:

'This cause has been much obscured by the irregularity of the pleadings, which present a medley of procedure, partly according to the common, and partly according to the civil, law. We must endeavour to extract a state of the case from the Record, Documents, and Acts, which have been exhibited.'

It appears, that on the 25th of November, 1775 (I Four. Congress, 259) Congress passed a series of Resolutions respecting captures. These Resolutions are as follow:

'Whereas it appears from undoubted information, that many vessels, which had cleared at the respective Custom-houses in these Colonies, agreeable to the regulations established by Acts of the British Parliament, have, in a lawless manner, without even the semblance of just authority, been seized by his Majesty's ships of war, and carried into the harbour of Boston, and other ports, where they have been rifled of their cargoes, by order of his Majesty's naval and military officers, there commanding, without the said vessels having been proceeded against by any form of trial, and without the charge of having offended against any law.'

'And whereas orders have been issued in his Majesty's name, to the commanders of his ships of war, to proceed as in the case of actual rebellion against such of the sea-port towns and places being accessible to the king's ships, in which any troops shall be raised or military works erected,

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under colour of which said orders, the commanders of his majesty's said ships of war have already burned and destroyed the flourishing and populous town of Falmouth, and have fired upon and much injured several other towns within the United Colonies, and dispersed at a late season of the year, hundreds of helpless women and children, with a savage hope, that those may perish under the approaching rigours of the season, who may chance to escape destruction from fire and sword, a mode of warfare long exploded amongst civilized nations.'

'And whereas the good people of these colonies, sensibly affected by the destruction of their property and other unprovoked injuries, have at last determined to prevent as much as possible a repetition thereof, and to procure some reparation for the fame, by fitting out armed vessels and ships of force. In the execution of which commendable designs it is possible, that those who have not been instrumental in the unwarrantable violences above mentioned may suffer, unless some laws be made to regulate, and tribunals erected competent to determine the propriety of captures. Therefore resolved,'

'1. That all such ships of war, frigates, sloops, cutters, and armed vessels as are or shall be employed in the present cruel and unjust war, against the United Colonies, and shall fall into the hands of, or be taken by, the inhabitants thereof, be seized and forfeited to and for the purposes herein after mentioned.'

'2. Resolved, That all transport vessels in the same service, having on board any troops, arms, ammunition, cloathing, provisions, military or naval stores of what kind soever, and all vessels to whomsoever belonging, that shall be employed in carrying provisions or other necessaries to the British army or armies, or navy, that now are, or shall hereafter be within any of the United Colonies, or any goods, wares, or merchandize for the use of such fleet or army, shall be liable to seizure, and with their cargoes shall be confiscated.'

'3. That no master or commander of any vessel shall be entitled to cruize for, or make prize of any vessel or cargo, before he shall have obtained a commission from the Congress, or from such person or persons as shall be for that purpose appointed, in some one of the United Colonies.'

'4. That it be and is hereby recommended to the several legislatures in the United Colonies, as soon as possible, to erect Courts of Justice, or give jurisdiction to the courts now in being, for the purpose of determining concerning the captures to be made as aforesaid, and to provide that all trials in

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such case be had by a Jury under such qualifications, as to the respective legislatures shall seem expedient,'

'5. That all prosecutions shall be commenced in the court of that Colony, in which the captures shall be made, but if no such court be at that time erected in the said colony, or if the capture be made on open sea, then the prosecution shall be in the court of such Colony as the captor may find most convenient; provided that nothing contained in this resolution shall be construed so as to enable the captor to remove his prize from any Colony competent to determine concerning the seizure, after he shall have carried the vessel so seized within any harbor of the same.'

'6. That in all cases an appeal shall be allowed to the Congress, or such person or persons as they shall appoint for the trial of appeals, provided the appeal be demanded within five days after definitive sentence, and such appeal be lodged with the secretary of Congress within forty days afterwards, and provided the party appealing shall give security to prosecute the said appeal to effect, and in case of the death of the secretary during the recess of Congress, then the said appeal to be lodged in Congress within twenty days after the meeting thereof.'

'7. That when any vessel or vessels, shall be fitted out, at the expence of any private person or persons, then the captures made, shall be to the use of the owner or owners of the said vessel or vessels; that where the vessels employed in the capture shall be fitted out at the expence of any of the United Colonies, then one third of the prize taken shall be to the use of the captors, and the remaining two thirds to the use of the said Colony, and where the vessels so employed, shall be fitted out at the continental charge, then one third shall go to the captors, and the remaining two thirds, to the use of the United Colonies; provided nevertheless, that if the capture be a vessel of war, then the captors shall be entitled to one half of the value, and the remainder shall go to the colony or continent as the case may be, the necessary charges of condemnation of all prizes being deducted before distribution made.'

That, on the 23rd March, 1776, Congress resolved that the inhabitants of these colonies be permitted to fit out armed vessels, to cruise on the enemies of the United Colonies.

That, on the 2nd April, 1776, Congress agreed on the form of a commission to commanders of private ships of war; that the commission run in the name of the Delegates of the United Colonies of New-Hampshire, & c. and was signed by the President of Congress.

That, on the 3rd July, 1776, the Legislature of New-Hampshire,

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passed an act for the trial of captures; of which the part material in the present controversy, is as follows:

'And be it further enacted, That there shall be erected and constantly held in the town of Portsmouth, or some town or place adjacent, in the county of Rockingham, a court of justice, by the name of the Court Maritime, by such able and discreet person, as shall be appointed and commissioned, by the Council and Assembly, for that purpose, whose business it shall be to take cognizance, 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 recaptures, that have or shall be taken and brought thereinto.'

'And be it further enacted, That any person or persons who have 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 aforesaid, shall jointly, or either of them by themselves, or by their attornies, or agents, within twenty days after being possessed of the same in this Colony, file before the said Judge, a libel in writing, therein giving a full and ample account of the time, manner, and cause of the taking such vessel or vessels. But in case of any such vessel or vessels, already brought in as aforesaid, then such libel shall be filed within twenty days next after the passing of this act, and at the time of filing such libel, shall also be filed, all papers on board such vessel or vessels, to the intent, that the Jury may have the benefit of the evidence, therefrom arising. And the judge shall 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 apurtenances and cargoes; and he is hereby authorized and empowered to try the same. And the same judge shall cause a notification thereof, and the name, if known, and description of the vessel, so brought in, with the day set for the trial thereon, to be advertised in some newspapers printed in the said Colony (if any such paper there be) twenty days before the time of the trial, and for want of such paper, then to cause the same notification to be affixed on the doors of the Town-House, in said Portsmouth, to the intent that the owner of such vessel, or any persons concerned, may appear and show cause (if any they have) why such vessel, with her cargo and appurtenances, should not be condemned as aforesaid. And the said Judge shall, seven days before the day set and appointed for the trial of such vessel, or vessels, issue his warrant to any constable or constables within...

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