Name of Vessel:

Active

Master of Vessel:

Bunch

Rig of Vessel:

Sloop

Date of Capture:

6 September 1778

Place of Capture:

Near the Virginia Capes

Captor:

Gideon Olmstead and others; Pennsylvania Navy Brig Convention and Pennsylvania Privateer Brigantine Le Gerard

Home Port:

From What Port:

Jamaica, British West Indies

To What Port:

New York, New York

Cargo:

Provisions, stores, rum, coffee

Tonnage:

90

Battery:

 

Crew:

11 [total]

Owners:

 

Prizemaster:

Gideon Olmstead

Prizecrew:

4 [total]

Ordered Into:

Cape May, New Jersey

Into What Port:

Philadelphia, Pennsylvania

Date Arrived:

14 September 1778

Date Tried:

6 October 1778

Date Sold:

Action:

Yes

Recaptured:

No

Comments: The 90-ton sloop Active (John Underwood) was at Montego Bay, Jamaica, British West Indies in July 1778. She had a cargo of stores and provisions for the British forces in New York, New York, as well as rum and coffee, but was short of men. Her crew consisted of Underwood, his mate, one sailor, three male passengers and a Negro servant. To assist in working the sloop the British authorities put four American prisoners aboard, to be delivered to the prison ships at New York upon arrival: Gideon Olmstead, Artemas White, Aquila Rumsdale and David Clark. Olmstead was a former privateer commander from Connecticut, who had been captured, exchanged or escaped, and then captured again commanding a French privateer. Active sailed from Montego Bay on 1 August 1778. On 4 September 1778 she made Cape Charles, Virginia. The British Privateer Brig Tryon was spoken and Underwood was warned to keep out to sea, away from the coast, because of American privateer activity. He also learned of the British evacuation of Philadelphia, as did the American prisoners on board.

At midnight on 6 September, Rumsdale, White, and Olmstead were on deck, with an old sailor at the helm. There were three Americans on the deck together. Rumsdale called up the watch from below, and Clark and the servant came on deck. Underwood and the mate were about to follow when Olmstead and Clark pulled up the ladder. Underwood and the mate were told “they were prisoners and would be killed if they came up on deck.” Olmstead took charge and steered for Egg Harbor, New Jersey.

Near dawn the men below decks began to fire pistols through the chinks in the cabin. Olmstead told them to stop or he would fire one of the 4-pounder guns into the cabin. Underwood was unimpressed. “Fire and be d----d!” he said. Olmstead and his men rolled up one of the guns and fired it into the cabin, doing some damage. Underwood called out that he would blow up the sloop. Olmstead thought it was a bluff: he told Underwood to “do it and be d-----d, that he [Underwood] was more afraid of going to the bottom than they [the Americans].” Underwood then began firing through the chinks with his pistol and opened a keg of powder. He prepared to fire his pistol into it. That was enough for the mate and passengers. One of the passengers and the mate interceded with Underwood, proposing to cover all his losses if he would desist.

Meanwhile, Olmstead fired another 4-pounder through the bulkhead. The foresail was unbent and lashed around the companion way to screen the men on deck from the pistol shots. Underwood was not finished yet, however. He jammed the rudder from inside the cabin. Olmstead now got very serious: he loaded the 4-pounder with thirty musket balls, cut a hole in the sail, and fired the gun into the cabin. Olmstead and his companions now began to tear up the deck to get at the rudder. Underwood had had enough. The wedge was removed from the rudder and matters became mildly more friendly.

Early on 8 September the Active made Cape May, New Jersey. They were discovered by the Pennsylvania Navy Brig Convention (Captain Thomas Houston) and the Pennsylvania Privateer Brigantine Le Gerard (Commander James Josiah). These two took charge of her and escorted her into Philadelphia, Pennsylvania, where she arrived on 14 September. Active was immediately libeled with her trial set for 6 October 1778. Part of her cargo was sold on 25 September.

The capture was merely the beginning of the story. The immediate effect of Olmstead and his companion’s actions was to avoid a British prison ship. Houston libeled the prize as his own and Josiah claimed a share. Olmstead and his men demanded the entire amount of prize money. The Pennsylvania admiralty court awarded Olmstead and his men 25% of the prize and divided the rest between the Convention and the Le Gerard. Olmstead and his companions appealed to the Continental Court of Appeals, who, on 15 December 1778, reversed the Pennsylvania court’s decision and awarded the full amount of the prize to Olmstead’s group. Judge Ross of the Pennsylvania admiralty court recognized the authority of the Continental Court of Appeals but refused to change the verdict, and ordered the Active sold, with the proceeds turned over to his court, pending disposition of the case. Olmstead attempted to prevent the sale by the Pennsylvania court’s marshal. The marshal was out of the Court of Appeals’s jurisdiction, and proceeded with the sale, which brought in $98,800.

A further hearing was scheduled for 5 January 1779. Olmstead obtained the services of Major General Benedict Arnold, the military governor of Philadelphia, as his attorney. Prior to the hearing Arnold alerted the members of the Court of Appeals that Judge Ross was adamant and would insist that the proceeds of the sale be turned over to his court. The Court of Appeals ordered the marshal to hold the funds to await their further instructions. The marshal ignored them and turned the money over to Ross.

Olmstead now turned to the Continental Congress. On 23 April 1779 he filed a memorial with the Continental Congress requesting recompense for the capture of the Active in accordance with the decision of the Court of Appeals, or else a statement that nothing was to be expected. The memorial was read 24 April and postponed to 15 September 1779. It was then referred to a committee, which reported in October 1779. The Continental Congress granted a further appeal in the case.

The case dragged through the courts and the money was eventually deposited with the treasurer of Pennsylvania, David Rittenhouse. Rittenhouse was to stand security for the money until the Judge of Admiralty made a final disposition. The prize monies were expected to be over £11000. Here the matter rested until 1802, when Rittenhouse died. By now, one war and one Navy had ended, the Constitution had been approved, there was a new government, a new Navy, and one, going on two, wars had been fought. Olmstead was still alive and he and his shipmates now sued the executrixes of the Rittenhouse estate in the United States District Court for Pennsylvania.

Judge Peters of the district court reviewed the case and declared for the Olmstead party. Pennsylvania passed legislation ordering the state Attorney General to sue the executrixes demanding they turn the money over to the State of Pennsylvania. The legislature instructed the Governor of Pennsylvania to protect the executrixes from Federal process servers. The case went to the United States Supreme Court in 1809. Chief Justice Marshal, in February 1809, declared for Olmstead and ordered the executrixes to deliver the money to the claimants.

A rebellion seemed to threaten: Pennsylvania troops were stationed around the Rittenhouse residence, now referred to as “Fort Rittenhouse.” After five weeks, in April 1809, a Federal process server eluded the soldiers and served the writs. Litigation continued for a time, but Olmstead finally got his money: thirty years after the capture.

[Middlebrook, Maritime Connecticut During The Revolution, II, 117-118; Jackson, Pennsylvania Navy, 301-303; The Philadelphia Packet, Tuesday, September 15, 1778, Saturday, September 19, 1778]

Posted 11 November 2009