US SUPREME COURT DECISIONS

This was an Appeal from the Court of Admiralty. It was argued on the 7th and 8th of July by Lewis, Wilcocks, and Sergeant for the Appellants; and by Bradford, Ingersol, and Wilson for the Respondent . The Court held the matter for sometime under advisement, in hopes that a compromise would have taken place between the parties; but on the 27th of September THE CHIEF JUSTICE, delivered the following judgment.

M'KEAN, CHIEF JUSTICE.

I will state the case as it appears before the Court from the proceedings, and the evidence, which are not controverted on either side; and shall then taken notice of those points which have been disputed.

The Appellants on the 28th day of August 1779, were owners of a Brigantine, called the Hibernia, then riding at anchor in the port of Philadelphia, and appointed the Respondent master and commander, on a voyage from thence to Oratavia in the island of Teneriffe, having a commission as a Letter of Mart and Reprisal. The owners, in the sailing orders then delivered to the Respondent, (among other things) 'advised him to keep company with the armed vessels bound to the Eastward as far as he should think it prudent; and that should they agree to cruize two or three weeks on the coast, he had their approbation in joining with them.' The Respondent sailed on his intended voyage, and in the river Delaware joined

Page 1 U.S. 180, 181

the Brigantine Achilles, whereof George Thompson was master, and the Patty, whereof John Prole was master, each having a commission of Letter of Mart; and about the 1st of September following they proceeded to sea in company, standing to the Eastward.

On the 6th of September in the forenoon a firing of cannon was heard by people on board the Achilles and Patty, and in the afternoon the Achilles and Patty had altered their course, and, being swifter sailors than the Hibernia, left her at some distance; they then waited for her, and when she came up, she inquired the reason of their altering their course, and was informed, that they had seen two sail and given them chase. At this time the two vessels were not in fight, the Achilles and Patty having waited for the Hibernia until they were lost: They all three then continued the same course until the morning, when at day light two vessels were descried, lying close together, by each of the masters of the three Brigantines, who forthwith made towards them; and the Achilles and Patty, after firing a few guns, took posession of a Brigantine, called the Betsey, which had been a British vessel, bound from Montserrat for New York, ( which places were then possessed by the Enemy) and was captured the day before by the Argo sloop of war, belonging to the United States, Silas Talbot, Esquire, Commander. At this juncture the Hibernia was a few miles astern of the other Brigantines, and when she came up, the Respondent asked, 'what vessel they had brought too?' and was answered, 'a Brig from Montserrat bound for New York; a good prize.' In consequence of some conversation with the Captains of the two other vessels, the Respondent sailed in pursuit of the Argo, then in sight, and did not rejoin them, until near sun set, when a boat came along side from the Patty, and asked for men to assist in navigating the Betsey into some port: The Respondent immediately put two men into the boat, and signed Orders for William M'Neil, who had been appointed Prize-master, which contained these words, 'to get her if possible into Delaware, Egg harbour, or Chesepeak, for fear of the Sloop Argo falling in with you, if you go to New England;' and 'beg of M'Neil to stand to the Southward this night and strive hard for Philadelphia.' These orders are dated 'the 7th September 1779, at sea on board the Brigantine Patty,' and were signed first by John Prole and George Thompson. So far the facts are agreed.

Mr. William Davis, who was a passenger on board the Patty, swears, 'that he verily believes, the firing of cannon on the 6th about ten o'clock in the forenoon, was heard on board the Hibernia, and that the people on board each of the three brigs saw two vessels engaged in fight, for that he heard and saw them distinctly; that the three lay becalmed within hale of each other, that the Argo and Betsey were then about three leagues distant from the three Brigs, and that the firing continued more than an hour.' He further is positive, that the Respondent and Prole and Thompson had a consultation in his presence, about the brig Betsey, whether she was prize [1 U.S. 180, 182]

Full Text of Opinion