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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
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.
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