4 U.S. 308 (1804), Duncanson v. Mclure

Citation:4 U.S. 308, 1 L.Ed. 845
Party Name:Duncanson v. M'Lure.
Court:United States Supreme Court

Page 308

4 U.S. 308 (1804)

1 L.Ed. 845




United States Supreme Court.

September Term, 1804


THIS was an action of trover for the ship Mount Vernon, which the defendant had purchased, under a sentence of condemnation as prize, pronounced by theFrench Provisional Tribunal of Prizes, established in the city of St. Domingo. The material facts of the case were these: 1 'Mr. Duncanson, an English gentleman, came to the United States with a view to settle; and, in order to manifest his intention, took an oath of allegiance to the state ofPennsylvania, though he had not been long enough in the country to entitle himself to naturalization, under the act of congress. Contemplating a circuitous voyage from America to England, and thence to the East-Indies, he applied to Messrs. Willings and Francis to procure a ship for him; and those gentlemen agreed absolutely with Mr. Thomas Murgatroyd, for the purchase of the ship Mount Vernon, owned by him; the bill of sale being made out, and delivered to them, upon terms of payment precisely ascertained. It, then, however, occurred to Mr. Duncanson, that as he had not yet acquired the rights ofAmerican citizenship, he could not enjoy the advantages, which he proposed to derive from his projected voyage. For, the trade from England to the East-Indies is, by the law of that kingdom, a monopoly; no British subject can, individually, embark in it, without incurring a forfeiture of his vessel and cargo; though it has recently been adjudged in England, that an American citizen is entitled to carry on the trade, by virtue of express stipulations in the treaty of amity and commerce between the United States

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and Great-Britain. 2 Hence it was deemed necessary to enter upon another operation. The bill of sale was sent back, and a new contract was formed between the parties, upon these principles: that Mr. Murgatroyd should remain the owner of the ship, and as such retain the register and make the insurance; 3 that she should, however, be delivered to Mr. Duncanson, or his agents; that Messrs. Willings and Francis should procure a freight for her on Mr. Duncanson's account; that Mr. Murgatroyd should empower Mr. Skirrow (a gentleman who went as a passenger) to assign and transfer the ship to Mr.Duncanson in England, on the 1st of September ensuing, at which time Mr.Duncanson would be duly naturalized as an American citizen; and that the consideration money should be secured by the notes of Messrs. Willings andFrancis, payable, at all events, in certain instalments.'

The Mount Vernon sailed from Philadelphia on the 10th of June 1796, with the usual documents of an American vessel. As soon as she had cleared the capes of the Delaware, she was boarded and taken possession of by 'the Flying Fish,' aFrench privateer, and carried into the port of St. John, in the Spanish island of Porto Rico. While she remained there, the ship and cargo were libelled by the captors, in the Provisional Tribunal of Prizes, at the city of St. Domingo, in the island of St. Domingo; a Court established by the republic of France in that city, for the determination of questions of prize. And on the 30th ofAugust 1796, after various proceedings, the following sentence was pronounced, by the Court:

'Thirteenth Fructidor, fourth year.

'Condemnation of the English ship Mount Vernon.

'Extract from the books of the office of the provisional tribunal respecting prizes established in St. Domingo.

'We Francis Pons, Judge of the provisional tribunal respecting prizes established in St. Domingo, having looked over our sentence of the seventhThermidor last, where all the papers exhibited by citizen Nadal, captain of the privateer Flier, against the ship Mount Vernon, are duly noticed, through which we had submitted the decision of this prize to the civil commission of Guarico, which applies again to our tribunal for pronouncing sentence on this subject; having noticed also instructions which were officially given us by the citizen agent of the French Republic in this city, issued by the civil commission aforesaid, in whose archives they have been duly recorded,

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from which it appears, first, that the papers having been thrown into the sea by the captain in sight of the privateer which captured him, secondly, that the captain and supercargo having precipitately abandoned their ship, in spite of the good treatment received by them from the French captain, and the hints he gave them about remaining there in order to plead their own cause, and thereby avoid her confiscation, thirdly, the behaviour of the captured crew, fourthly, the captain being a Portuguese, without a certificate of his naturalization, fifthly, that the United States, in the last treaty which they concluded withEngland, having suffered to be added to the articles which have been looked upon till at present as contraband of war, staves, tackles, sail-cloth, iron hoops, and finally all which can be made use of for vessels, are sufficient motives to condemn said ship; after a serious examination we have judged and do judge that the ship Mount Vernon, captain George Dominico, Portugueze, with her cargo, has been duly and justly captured by the French privateer commanded by citizen Nadal, to whom we adjudge her as property belonging to him, and of which he may dispose under the clauses and conditions made with his officers and crew, he being accountable for the duties of invalids and the costs of the tribunal, which he shall pay to the bearer of our notary's order. Santo Domingo, Fructidor thirteenth (August thirtieth). Fourth year of the French Republic, one and indivisible. Signed in the Register, Pons Judge, andDespujeaux Notary Public.


PONS Judge.

'Despujeaux Notary.'

Under this sentence of condemnation, the Mount Vernon and her cargo were delivered to the captors by the Spanish governor of Porto Rico, with permission to sell them there. At the public sale, Rousseau, a naturalized American, purchased the ship; and afterwards sold her for 22,000 dollars, to M'Lure, the present defendant, an American citizen, who brought her to Philadelphia. A replevin was then issued for the ship, in the name of Murgatroyd, from the Circuit Court, for the Pennsylvania district; but it appearing on the trial, that Murgatroyd had received payment of all the notes, which Messrs. Willings and Francis gave for the purchase money, the COURT declared, that he had no property in the ship, to maintain a replevin; and directed a nonsuit. In consequence of that defeat, the present action of trover was brought in the name of Mr. Duncanson.

The cause was argued, at great length, upon the following general points: 4

1st. Whether the ship Mount Vernon, at the time of her sailing and capture, was the bona fide property of Murgatroyd, a citizen of the United States; or was only registered and held in his name, in trust for Duncanson, an alien.

2d. Whether the capture of the Mount Vernon was a lawful, or a piratical act; considering the commission of the privateer, and the circumstances of the capture.

3d. Whether the French Court, established at St....

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