USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III > Part 100
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The enemy at present are landed up the York river, at York and Gloucester. Brig. Gen. O'Hara is re- ported to have command at Portsmouth. The Marquis, with his detachment, has crossed the Pamunky river; and we remain at this place, waiting his orders. We were on our march towards Gen. Greene; but this movement of the enemy has recalled us. What the intentions of Lord Cornwallis are, we are at a loss to determine. Va- rious conjectures have arisen. Baltimore, it was thought by some, would be his object; while others conjectured he would send part of his force to the relief of New- York, and the remainder to Charleston. How his ope- rations will be, we know not for certain. I shall take it as a particular favor, you will continue sending me the newspapers; and give me the northern intelligence.
I am, dear sir, Your obliged friend and hble. servt.
Brig. Gen. LACEY. JOS. HIARMAR.
VICE-PRESIDENT MOORE TO GEN. LACEY. In Council, Sept. 26, 1781.
Dear Sir-I received your's dated yesterday, and one from the President, dated the 24th inst. We have no other news than what you will see in the papers here- with sent you.
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REVOLUTIONARY LETTERS AND PAPERS.
1829.]
We have sent orders for the Chester militia not to march; but to hold themselves in readiness to proceed to Newtown at a minutes notice. Col. Anderson, of Bucks county, has sent for some commissions for officers in the militia of that county. They are directed to your care. You will please to forward them. I wish you a pleasant campaign,
and am, your most lible. servt.
General LACEY, 2 WM. MOORE.
at Newtown. S
-
SAME TO THE SAME.
In Council, Sept. 27, 1781.
Dear Sir-I received yours of yesterday's date. Nei- ther the Board of War, nor the Council, are in posses- sion of any of the Articles of War, or Baron Steuben's Exercise. The President of Congress received yester- day an express from Gen. Washington, dated Williams- burgh, 15th inst. mentioning that every thing was get- ting ready to attack Cornwallis. The minister likewise received a letter from Count de Grasse, informing of the junction of Admiral Barras' squadron, and the driving the British fleet from the Capes of Virginia. The French suffered but little in the engagement. The Iris and Richmond slipt in to cut the buoys of the French fleet; but were both taken without effecting their de- sign. My compliments to the President, and am
Your most hble. servt. WM. MOORE, V. Pres't.
Gen. LACEY, at Newtown.
SAME TO THE SAME.
In Council, Sept. 28, 1781.
Dear Sir-I received your's, and the President's of yesterday, and laid the same before the President of Congress. All the spare arms in the city will not do more than arm those that are expected to turn out on this occasion. Orders are just gone off to the militia, horse and foot, of Chester county, to march to New- town. The city militia, horse and foot, wiil hold them- selve in readiness to march on a minute's notice. Mr. Morris will undertake to supply the militia with provis- ions. Commodore Hazlewood will come to Newtown for that purpose. Your's, &c; WM. MOORE, V. Pres't.
Gen. LACEY, at Newtown.
Every preparation is making as though we were cer- tain that the enemy are in motion for this city.
SAME TO THE SAME.
In Council, Sept. 28, 1781.
Dear Sir-I wrote to you this morning, by Commissa- ry Crispin, with two ofthis day's paper; since which we have ordered the city and district militia, and troops of light horse, to march immediately. The law gives them three days, after orders, before they begin their march; so that it will be Sunday or Monday before any of them will set off. The militia, horse and foot, of Chester county, will be ordered (by express to set off this after- noon) to proceed directly to Newtown. Judge Atlee set off this morning for Lancaster, by whom we wrote to Colonel Hubley, to march off immediately the militia, horse and foot, to Newtown, if not already gone. The expresses to Chester and Philadelphia county for wag- gons, will go off this afternoon. The order for Bucks county is enclosed to you. My compliments to the l'resident.
Your humble servant,
Gen. LACEY. WM. MOORE, V. Pres't.
PRESIDENT REED TO GEN. LACEY.
city militia meeting to march yesterday; and we shall endeavor to stop the Chester men, who set out this mor- ning. As soon as I received M'Calla's letter I sent for IIazlewood, and find he had received orders from Mr. Morris to take the directions of the Council last Satur- day in writing. They unluckily deferred it till my re- turn; and then, not having mentioned it, the matter has lain over till this day at noon. I then gave him an or- der to provide ten day's rations for 2000 men, and to go up immediately to make arrangements, which he has promised. But as I feared you might want in the inte- rim, I send you by the light horseman £100. As you will stand charged for these sums, you will be careful to take vouchers for your discharge.
The intelligence you give of the good disposition of the officers is very pleasing; and with proper care and industry I think every thing will go well. But you must keep the good humour up; which you will easily do .- Arms are preparing for you. Having been confined to my chamber, and chiefly to my bed, by a very painful, but not a dangerous complaint; I have been taking phy- sick to-day, and shall be well to-morrow-but must close my letter.
I approve of the Bucks people being mustered as you propose; but Sterrett cannot come up before the next day after to-morrow.
I have not been to Council; so that nothing is fixed for the allowance of light horsemen on command; but I believe you may depend on a dollar per day in the coun- try, if they find themselves every thing-10s. in town.
I am, dear general, Your sincere friend and hble. servt.
JOS. REED.
Philadelphia, Oct. 1, 1781, 4 o'clock, P. M. The Hon. Brig. Gen. 2
LACEY, Newtown. S
PRESIDENT REED TO GEN. LACEY.
Philadelphia, Oct. 3, 1781, 4 o'clock, P.M. Dear General, I have just received your favor of this day. The condition of the Lancaster militia is really distressing; and I much wonder that the Lieutenant should permit them to march in such a condition. We have no arms here, Mr. Moore having last week deliv- ered all in the store to our militia of the town, and after this, you know, there is no recovering them. Colonel Ross called yesterday to inform me that he had a bat- talion of 600 in the same naked condition: upon which, after conferring with Dr. Gardner and the Vice- President, we concluded to order them back -- not dis- charging them, but directing them to be in readiness. In the mean time we will try what arms can be procu- red: I am of opinion it will be best to do the same by these, and will send Sterrett up to muster them. We were the more induced to do this, as the Election will fall into the hands of the unfriendly to government, if the militia do not return. Mr. M- thinks if they could go home in time, so as to take the Election in their way, before they disperse, it would be favorable.
You will see Sterrett to-morrow. C-, and his as- sociates at the other house, are counteracting your mca- sure of last week. Could you not fall on some measure to get him down here, and I will take care he does not return. You can direct him to name a deputy or ap- point some one yourself. You may tell him he is want- ed, and to bring the returns with him. I sent a letter similar to the enclosed to Col. Ross. You can 'fill up the superscription of this, and send it to the Lieutenant Colonel of the Battalion. You will hear from me to- morrow -- so that I have only time to say that
I am, dear sir, Your ass'd friend and hble. servt. JOS. REED.
Dear General-I have received both your favors of Gen. Lacey. this morning, which you did well to send separately, as every one expects to see the intelligence. The delay CLEMENT BIDDLE TO GEN. LACEY. Philadelphia, October 11, 1781. of the enemy satisfies me more and more of this State not being the object of their design; as our prepara- Dear General, As I expect you will soon receive or- tions must be known to them. I have prevented the I ders from Council for the dismission of the militia, I re-
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LAW CASE.
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quest you to direct Mr. Rodman to receive all the camp equipage or other stores that may be turned in, to take an account of them, and have them safely stored till they can be removed, and that he transmit an account of them to me.
I am, dear general, Your obdt. servant, CLEMENT BIDDLE, Q. M. G. P. M. Hon. Gen. Lacey, Newtown.
VICE-PRESIDENT MOORE TO GEN. LACEY. In Council, Oct. 12, 1781.
Dear General-The accounts the President of Con- gress has received from the vicinity of York, are that the enemy are embarking a considerable number of troops, supposed for Chesapeake; if they fail of getting in there, probably a part, if not the whole, will proceed to Charleston. The Council have thought proper to dis- charge the militia now collected at Newtown: and en- closed you have a resolution for that purpose. You'll please to inform them that the Council thank them for their readiness in turning out on this occasion.
Letters are likewise received by Congress from Gen. Washington, dated Oct. 1. On his approach to York the enemy retired from all their outworks, and confined themselves within their lines: where they are bombard- ed and cannonaded'incessantly. I hope in a fortnight at farthest, Cornwallis and all his crew will fall. Upon the discharge of the militia I suppose you will go the New Mills-hope your stay there will be short, as your attendance in Council will be as necessary as agreeable to
Your most hble. servant, WM. MOORE, V. Pres't.
Gen. Lacey, Newtown.
IN COUNCIL. Philadelphia, October 12th, 1781.
The Council having received such information con- cerning the movements of the enemy, as renders it im- probable that their present designs tend immediately against this State; and the Council being anxiously desi- rous to avoid, as much as possible, the great inconve- niency arising from a continuance of the militia in the field longer than is unavoidably necessary for the de- fence of the State :- Ordered, that the militia now at Newtown be discharged: and that General Lacey bedi- rected to issue, in general orders, the thanks of the Vice President and Council to the said militia for the readi- ness with which they have taken the field, for the de- fence of the commonwealth, at a time of such imminent danger from an enemy, who, despairing of conquest, were spreading fire and desolation through such parts of the States as were unfortunately within their power- and assure them, that as they had been on this occasion called into the field in consequence of the designs of the enemy against the State, so there was'reason to suppose that the patriotic readiness with which the freemen of the State appeared in arms had a happy effect in pre- venting the intended invasion.
Extract from the Minutes.
TY. MATLACK, Sec'y.
To Brigadier General 3 3
LACEY, Newtown.
LAW-CASE.
District Court of the United States-Eustern District of Pennsylvania.
Recompense Hand and others vs. The schooner Elvira and Cargo.
ON A CLAIM OF SALVAGE-April 14, 1829.
HOPKINSON, Judge .- This is a claim of salvage by the owners and crew of the pilot boat Leo for service ren- dered to the schooner Elvira, by which it is alleged she was relieved from great danger and distress, and brought safely into the Port of Philadelphia.
A correct and careful understanding of the facts of the case is peculiarly indispensable to a just decision of |
of it; for every claim of this description turns on its own circumstances. The argument of the council for the libellants, has been mainly raised on the statement published in a paper of this city, and furnished by John Seabury, the second mate of the Elvira, which narrates the occurrences of the voyage in the usual animated and exaggerated style of such communications, made for the public and not for the more accurate purposes of a judicial [ enquiry. I cannot receive this publication as any evidence of the facts stated in it. John Seabury was examined as a witness on behalf of the respondent; what therefore he had said or published at another time, was properly admitted to impeach or test his cred- ibility; and so far and no farther, was it legal evidence. If a witness at another time has given an account of a transaction different from that given at the trial, he may be impeached by proving what he has said at ano- ther time on the question of his credit: but you cannot substitute the other account in the place of that which you had discredited, making it thus the evidence of the cause. In this case the difference is rather in the force of the expressions used-inthe colouring of the descrip- tions, in swelling exaggerations, than in matter of fact and essential importance. In a seaman's protest and reports the waves are always mountain high, the winds never less than a hurricane and the peril of life general- ly impending. There may be some pride of authorship in these compositions, and the writer may aim to exhib. it his power and style in describing dangers. I will take the facts as they have been given by the witnesses examined here; and there is no material variance be- tween those on the one side and on the other, when they speak of the same transactions. .
The Elvira sailed from St. Augustine, in Florida, on the 8th day of February last, loaded with live oak for the Navy Yard at Norfolk, and bound for that port .- She had on board the Captain, a first mate, a second mate, two hands before the mast, two cabin passen- gers, and seven steerage passengers, who had been em- ployed in cutting the live oak. From the 8th to the 2Ist of February, nothing occurred that was remarka- ble; but on the 21st the schooner was knocked down on her beam ends; about eight o'clock, A. M. they cut away the mainmast; the schooner righted and fell off before the wind. On the 22d, they cut away the staun- cheons and hove the deck-load overboard, part of which had been previously washed off. On the morn- ing of the 23d, the foremast was carried away. They then rigged two jury-masts, and determined to put into the first port in the United States. They could man- age the schooner with the jury-mast pretty well, so that they could steer an eight point course.
From the 23d of February to the 13th of March we have no regular or continued account of the occurren- ces that happened: it seems that the schooner had been blown off and had been navigated as above stated-It is important to be here noticed that the effect of the gale was confined to the destruction of her masts and rigging; her hull does not appear to have received any injury; when she was knocked down onthe 21st, she took in a- bout 3 feet of water, but after she righted and was got be- fore the wind she was cleared of this water by the pumps and leaked very little-about fifteen strokes in two hours; and this came through the deck.
From the 21st of February to the 6th of March, the first mate says they were much fatigued, but after that they were better and thought themselves safe.On the6th of March a man was washed overboard by shipping a heavy sea, which did not hurt the vessel.
On the 13th of March they fell in with the Schooner Milo bound from Carolina to New York, and put on board of her the two cabin passengers, and two of the steerage passengers, who, I think it was said, wanted to go to New York. From the Milo they received some bread and beef, which it seems was all the assis- tance they thought they wanted at that time. On the 14th of March they spoke a ship from round the Horn belonging to Nantucket, but required nothing from her.
1829.]
LAW CASE.
361
The mate says that between the 23d of February and 13th of March they saw several vessels but did not speak them. During the period mentioned it was blow- ing heavy a considerable part of the time: and as an ex- cuse for neglecting her logbook he says they had e- nough to keep the ship from going to the bottom .- This was between the 23d of February and the 6th of March, after which he says they thought themselves safe. On the 17th of March at night they made the lights on the Highlands, and but for an unfortunate change of the wind a few hours would have brought them to New York. But the wind came round to the westward, and the Elvira unable to get to New York bore away for Cape Henry, her original destination; on the morning of the 19th they saw a schooner to the west of them about 6 miles-at 11 o'clock the wind died away calm. In the afternoon about 2 o'clock (Simon Palmer, the Pilot, says about four o'clock) they saw a small schooner to the westward which they took to be a pilot boat; and proved to be the Leo; she was steering on the wind, SSE. and the Elvira about WSW. The Pilot boat made one tack and fetched them, run across their bow-launched a boat and came on board. There is no material difference; I may say none of any kind, between the narration of the witness and that of J. Pal- mer, one of the Pilots. Palmer says the weather was suspicious, that the sun was about crossing the line, and they generally look for a breeze. But the fact was that the weather was good and so continued throughout the service. The situation of the Elvira at the time that she fell in with the Leo was that her masts and rig- ging were gone, but they had replaced them by jury- masts and sails under which she had navigated the ocean for three weeks-had been blown off the coast and returned to it, and by the aid of which she would have safely entered the port of New York but for a cri- tical change of the wind, and with which she was at that moment making her way under free sail for Cape Henry her place of destination: whether she would have reached there we cannot positively say. but we have had no account of the wind or weather to render it improbable :I confess I am not without some doubt wheth er in such circumstances the captain of the Elvira was justified in coming to Philadelphia at all, and whether it was not his duty to pursue his course to Norfolk. He thought otherwise and may have been right; at any rate he asked and accepted the service of the libellants to to bring him to Philadelphia, and he is bound to pay for it-what was the service in relation to those who of- fered it and who claim to be remunerated for it, is now to be decided. When the Leo saw the Elvira the Leo was running with a free wind to her harbour within the Capes of Delaware for the night. Jeremiah Bennet first discovered the schooner from the mast head. The Leo, of her own accord, uncalled for by any signal from the Elvira, not knowing of her distress, and perhaps supposing she wanted a pilot (for the Leo was a pilot boat then actually cruising in her vocation), immediate- ly beat towards the Elvira, making signal for her .- These signals were answered by the Elvira-who was between 30 and 40 miles outside of the Capes. When the Leo came up with the Elvira she was under low sail, the longest mast not above twenty feet long; she had two masts up with temporary sails. When the pilot came on board the enquiry was not about any danger or distress on board the Elvira, but the usual salutation, "Where are you from, and where bound." The answer was, "From St. Augustine, East Florida, bound to Nor- folk." The pilot then asked the master of the Elvira if he did not want to go into the Capes of Delaware .- The head mate Seabury, says, "The pilot asked if we wanted the assistance of the boat." Simeon Palmer did not go on board the Elvira, and testifies nothing of this part of the transaction. A negociation commenced for taking the Elvira into the Delaware, the pilots having cleclined to take her to New York or Cape Henry, as the captain desired, and a line is given from the Elvira Voz. III. 46
to the Leo, and both vessels proceed to the Capes of Delaware, the Leo towing the Elvira, but assisted by her sails. The witnesses differ a few hours about the time they came to anchor within the Capes, but there is no dispute that the weather was good, the night light, and no dificulty, danger or fatigue in the navigation .- Palmer says, "We towed the schooner along very eas- ily." During the day of the 20th, the wind being un- favourable, they remained at their anchorage within the Capes. They left there on the 21st in the morning- anchored about three miles below Reedy Island-no wind- got under weigh next morning (22) about 8 o' clock, and about 2 or 3 o'clock of the same day came to a little above the Point House, -that is about three miles from the city,-and were at the wharf in the evening. 'Both of the mates assert that the Elvira had on board, when the Leo came to her, fifteen days of provisions of bread, beef and water, although their al- lowance had been reduced.
Such are the leading facts of the case, and it is by them that the claim of the libellants must be decided .- The first question made is, whether the official charac- ter of the libellants, they being pilots of the bay and river Delaware, made it their duty to do all they have done for the relief of the Elvira; and whether, under these circumstances, they can present themselves be- fore the Court as salvors? I have no difficulty on this point, nor has it been insisted upon by the council of the respondent, although very fully argued for the li- bellants. The law makes the true discrimination. That which the pilot does in the ordinary course of his duty, can never be made the foundation of a claim for salvage; and the difficulty and exertion being more or less in such a case, can make no difference. He takes his chance for such hazards-he knows he must be expos- ed to them, and it must be presumed that his official compensation is calculated on the probability of such exposures. He cannot be at the same time and in the same act a pilot and a salvor; but he may become the latter for service beyond the limits of the duty of the former. If a pilot is not on board a vessel to bring her into port, a violent wind arises, and she is threatened with a casting upon the shore, assuredly it is the duty of the pilot to exert his utmost labor and skill to pre- serve her, and for so doing he could not set up a claim for compensation as a salvor. On the other hand cases have occurred, and many may be imagined, in which the assistance rendered by a pilot is clearly beyond that which could have been required of him by his official duty, which, as Sir William Scott says, "may exalt a pilotage service into something of a salvage service."- I consider this case to be one of that description; and that the libellants are entitled to compensation for the assistance given to the Elvira, according to the circum- stances of the case and the principles of law applicable to it. Whether a seaman can in any case become a sal- vor for services rendered to his ship in any extremity of danger or distress, is another question upon which I do not give my opinion. Great Judges have differed a- bout it, but it is clear that a seaman is much more close- ly bound to a ship than a pilot, and his duties to her are far more extensive, permanent and severe.
In deciding a case of this sort where every thing is left to the discretion of the Judge, I would not exer- cise the discretion arbitrarily : but hold it under the control of judicial principles and precedents. It is true, it is difficult to find, or fix a rule by which to measure the quantum of salvage. Circumstances vary so infi- nately in the degree of danger, in the extent and risk of the service, in the value of the property, in the con- duct and merit of the salvors, that a standard cannot be established to govern every case that occurs, nor even for classes of cases. There are nevertheless, some gen- eral principles and precedents which have grown out of the experience of Courts and afford strong lights to guide us in any new case.
I will as briefly as it may be done, take a review of
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the English and American adjudication upon the sub- ject; this review will be somewhat tedious, but as many decisions of high authority have been given since the subject was agitated in this Court, it may save us trouble in future to look to them now.
The definition given of Salvage by Abbott, is clear, comprehensive and accurate. It is "the compensation that is to be made to other persons (than those connect- ed with the ship,) by whose assistance a ship or its load- ing may be saved from impending danger, or recovered from actual loss." A difficulty has seldom occurred in deciding whether any given case was or was not a case of salvage. The question hias generally arisen upon the quantum to be allowed-now whether it be a case of impending danger or, of actual loss, it seems to be required that the property must be saved or recovered by the assistance for which this compensation is claim- cd. We may not perhaps be so rigorous as to say that that it must be absolutely certain that the property was saved by the assistance of the salvors, but it should be reasonably probable that this was the case, and that the ship or cargo was preserved from loss or damage by their labour, skill and exertions.
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