The Mary

APPEAL from the circuit court for the district of Massachusetts. 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 the 25th of 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 the 26th of December, after sun-rise, the Cadet and Mary being then in company, and armed brig, the 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 canvass. She pursued the Mary, firing at her, until between 4 and 5 o'clock, P. M. of the 26th of 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 colours, 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 colours 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, despatched 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. Jones, for the appellants. This is a case of novel impression as to the circumstances, but long since settled in principle. The prize crew of the Cadet were driven out of the Mary by the terror or the force of the Paul Jones. It is not the case of a prize abandoned and taken as res nullius, nor retaken by the original British crew, and recaptured by the Paul Jones. The prize was in a place of safety, infra praesidia; not constructively, as of a fleet, or a neutral port, but of a port of the captor's country. In order to constitute a dereliction of the property acquired in the thing captured, the abandonment must be voluntary, and with intent to relinquish the right acquired. The origin of this principle is to be found in the Roman code, which distinguishes between a voluntary and compulsory abandonment of possession; the first changing the right of property, whilst the latter has no such effect.a It is applied to

a ''Just. Inst. L.'' 2. t. 1, sec. 46. 47. Alia sane causa est earum rerum, quae in tempestate levandae navis causa ejiciuntur. Hae enim dominorum permanent: quia palam est, eas non eo anime ejici, quod quis eas habere nolit, sed quo magis cum ipsa navi maris pericurum effugiat. Qua de causa, si quis eas fluctibus expulsas, vel etiam in ipso mari nactus, lucrandi animo abstulerit, furtum committit. So also D'Habreu, in commenting on the 9th article of the French prize ordinance, (which prescribes that, if a captured vessel, not having been recaptured, is abandoned by the enemy, or if by storms or other accidents, it returns into the possession of French subjects, before having been carried into any enemy's port, it shall be restored to the former owner, if claimed within a year and a day, although the possession of the enemy may have continued more than twenty-four hours,) makes the following observation, 'Quoique l'article de l'ordounance ne paroisse pas faire la diff erence entre un vaisseau abandonn e par les ennemis, et celui qui l'a et e par l'effet d'une temp ete ou de quelque autre accident impr evu; il est n eanmoins certain qu'il y en  a quelqu'une. Nous n'entreprendrons point ici de la faire sentir: outre que cela nous ecarterait de notre objet, il n'est personne, tant soit peu vers e dans la jurisprudence, qui ignore que l'abandon volontaire fait perdre la propri et e, tout au contraire de celui qui est forc ee.' D'Habreu on Prizes, ch. 5. § 10. tom. 2. p. 95. of M. Bonnemant's Translation. the law of prize by the different elementary writers.b It was practically enforced in the case of the Lord Nelson,c and by this court in the case of the Mary Ford.d Striking the colours is to be deemed the real deditio, and the consummation of the capture.e So, also, the capture is held to be consummated where the prize is completely under the dominion of the captor, has no ability to resist, and no prospect of escape.f Here was no recapture by the enemy crew, because no resistance nor escape; and the British master could clearly not have maintained a claim for salvage in the courts of his own country had the Paul Jones turned out to be a British privateer.

Mr. Webster, contra. This is a case of voluntary relinquishment of the prize; and even if it was produced by terror of a supposed enemy, that will not make it involuntary. The case of the Lord Nelson does not determine the present case; but Sir William Scott there puts the very case now before the court, and decides it by asking, 'Suppose, therefore, that after this voluntary abandonment, the ship had been met with by some French cruiser, and that by means of jury-masts, they had succeeded in carrying her into a French port; can there by any doubt that she would have been prize to the second captor?' In the case of the Ann, which was a question of jurisdiction in a revenue cause, the seizure being abandoned before adjudication, this court illustrate their opinion by analogy to the prize law, holding, that capture gives no authority to proceed to adjudication, if abandoned before judicial proceedings are commenced.g So, also, in the case of the Astrea, it was determined, that an interest acquired by possession is devested by the loss of possession, from the very nature of a title acquired in war.h The case of the Adventure is likewise in point.i There was no fraud on the part of the Paul Jones. She had a right to chase under any colours; but she neither chased nor fired under enemy's colours: whilst the prize showed no colours, and therefore invited pursuit; and was found in the possession of her original British master, and therefore authorized detention. She was not infra praesidia whilst lying in Wheeler's Bay; but even supposing she had been, if she was afterwards abandoned by her original captor, the Paul Jones had a right to take possession. The prize master did not think it worth while to risk being taken prisoner, and therefore abandoned his prize. Mr. Jones in reply. The case supposed by Sir William Scott, in delivering his judgment in the Lord Nelson, is of a voluntary abandonment, and not one produced by the application of force or terror. In the case of the Ann, this court, though incidentally describing the general doctrine, adhere to their accustomed accuracy and precision of language. 'A voluntary abandonment' is the phrase used by the learned judge, who delivered the opinion of the court; and he proceeds to state, 'It is not meant to assert that a tortious ouster of possession, or fraudulent rescue or relinquishment after seizure, will devest the jurisdiction.' The precedent of the Astrea does not apply. In that case there was a capture and recapture, and a second recapture; but no question whether the abandonment by the first captors was voluntary or not. The case of the Adventure was not a question of derelict; but whether the belligerant may invest a neutral with his rights at sea, in fraud of the contingent right of recapture by the other belligerant. The question here in not whether fraud was used, but whether force was used. The prize crew supposed they were surrendering to British captors: but the Mary was not in situation to be captured by a cruiser of the United States; she was not derelict, but lying in a roadstead, which is a praesidium, though not guarded by forts and castles. Mr. Justice JOHNSON delivered the opinion of the court.