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THE MARY, 15 U. S. 123 (1817)
U.S. Supreme Court
The Mary, 15 U.S. 2 Wheat. 123 123 (1817)
15 U.S. (2 Wheat.) 123
APPEAL FROM THE CIRCUIT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Decided that where an enemy's vessel was captured by, a private armed vessel of the United States and subsequently dispossessed by, the force or terror of another, the prize was, under the circumstances of the case, adjudged to the first captor, with costs and damages.
The British schooner Mary, whereof Charles Thomas, Jr., a British subject, domiciled at St. Johns, New Brunswick, was late owner and master, sailed under convoy from St. Johns, New Brunswick, bound to Castine, then in the military occupation of the British, laden with a cargo, the growth, produce, and manufacture of British possessions, shipped by British merchants domiciled in St. Johns, N.B., to merchants resident in Castine.
The schooner Mary was captured by the private armed schooner Cadet between Duck Island and Mount Desert on the night of 25 December, 1814, between the hours of 11 and 12; the convoy under which the Mary sailed, was in sight of the Mary at the time of her capture, but no other vessel was in sight at that time. The Cadet came up with the Mary so suddenly that she had no opportunity to make resistance or give notice to the convoy of her danger.
After the capture of the Mary, the principal part
of her cargo was taken on board the Cadet, carried into the District of Massachusetts, and, in the district court of said district condemned to the Cadet as prize of war.
On the morning of 26 December, after sunrise, the Cadet and Mary being then in company, and armed brig Paul Jones was discovered by them, under such suspicious circumstances as to induce them to believe her to be a British cruiser, and in consequence to part and steer different courses. The sails of the Paul Jones were of English canvas. She pursued the Mary, firing at her, until between 4 and 5 o'clock P.M. of 26 December; the Mary had then arrived in a bay of the United States, to-wit, Wheeler's Bay, a bay frequented by American vessels. The Mary being within half a mile of the shore and within the same distance of the Paul Jones, and being in such a situation as rendered it certain that she must be intercepted by the Paul Jones, the prize master and crew, considering it certain from her appearance and actions, that the Paul Jones was an English cruiser, left the Mary for the shore, after having thrown over her anchor, and ordered the British captain, and his son of twelve years of age, who were left on board, to pay away the cable.
After the prize crew left the Mary, the British master hoisted English colors, and steered the schooner towards the Paul Jones.
Ten minutes after the prize crew left the Mary, she was boarded by a boat from the Paul Jones, when the English captain informed them that the
Mary was an English vessel, prize to the Cadet, when the Paul Jones immediately stood off from the land with the Mary in company, with English colors still flying.
A boat, then out to the windward of the Mary, and within musket shot, or a quarter of a mile distant from her (the crew then lying on their oars, the sea smooth, and the wind light), repeatedly hailed the Mary, both before and after she was boarded by the Paul Jones, and received no answer.
The prize master of the Mary, immediately on his getting on shore, dispatched a boat on board her to ascertain the national character of the vessel by whom she was boarded and claim her if the boarding vessel should prove American, but before the boat could get off, the Paul Jones had sailed with the Mary in company.
Libels against the Mary and cargo were filed in the District Court for the District of Maine by David Elwell in behalf of himself and the owners, officers, and crew of the private armed schooner Cadet, and by John Thomson Hilton, in behalf of himself and the owners, officers, and crew, of the private armed brigantine Paul Jones. The Mary and cargo were condemned in the District Court for the District of Maine to John Thomson Hilton and the owners, officers, and crew, of the Paul Jones. An appeal was entered from said decree by David Elwell, and the owners, officers, and crew, of the Cadet in the Circuit Court of Massachusetts. In consequence of the affinity of the judges to the parties, the decree of the District Court of Maine was,
by consent of parties, affirmed pro forma and the cause brought by appeal, to this Court.
MR. JUSTICE JOHNSON delivered the opinion of the Court.
We are of opinion that the facts stated in this appeal make a clear case of tortious dispossession on the part of the Paul Jones. The privateer Cadet had, with great gallantry, captured the Mary and been in possession of her part of a night and day. The prize was close in upon the American coast, and making for a port which was open before her. It was not until the superior sailing of the Paul Jones made it manifest that the prize must be cut off from this port and until she had been repeatedly fired upon that the prize crew abandoned her. There exists not a pretext in the case that this abandonment was voluntary or would have taken place but for the hostile approach of the Paul Jones. Whether the vis major acted upon the force or the fears of the prize crew is immaterial, since actual dispossession ensued.
But it is argued that the Paul Jones showed American colors; the Mary ought not therefore to have feared her; the Mary showed no colors, she therefore invited pursuit; and finally that the Paul Jones found her in the actual possession of her
original master, and therefore could not have done otherwise than detain her.
We think otherwise. It was more probable that an enemy would show false than true colors. The circumstance of the Mary's standing in for a friendly shore was less equivocal evidence of her character than the exhibition of colors, and after boarding the Mary and learning that she was a prize to the Cadet, it was the duty of the captor to have repaired the injury he had done, and, either by making signals, sending a boat on shore, or a message by the boat that did come off, to have recalled the prize crew of the Cadet. But instead of this, she instantly mans the prize, bears away from the harbor, which was close under their lee, and, by carrying English colors until out of sight, completes the conviction of the prize crew that the recapture was by an enemy.
We are of opinion that the decision of the circuit and district courts should be reversed, that the prize should be adjudged to the Cadet, and the case remanded for the assessment of reasonable damages in favor of the Cadet. But considering that the prize arrived in safety and probably in a more secure harbor than that for which she was sailing when seized by the Paul Jones (although it is certainly a case for damages), we are of opinion the damages should be moderate.
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