The Sun. — London, England, 1801-12-30 00:00:00

P.RIS, DEC. LI. TH E Official Journal announces, that the Squa_ drops at B 7 est, I'Orient, and Rochfort, got under sail on th.: 14th of December, and the winlebeing favouralle on the whole of the i sth, no signals were at i y l i nger made of any vessel. ?he Fleet consists of 23 Ships, of which the following is a list : FRENCH. SHIPS. I.'o cean, I.e Dullesne, • La Eurteuse, La Syrene, „ • La Fraternite, La Precieuse,', La. Cigogne, La Decouverte, La NetessitC. Le f eniappc, Le Cisalpin, Le Patriote, Le Mont Blanc, I s e Tatigny, i.e 1. j. Rousseau, , Le Gaulois, La Revolution, SPANI3H SHIPS. The Warriour, • The Neptttue, and the The San Francis de Paulo, Solida‘L The San Pablo, There are on board these Ships, and the Trans_ ports that . accompany them, z 5,000 men . .well equipped.. The Spanish General, GRAVINA, goes with the Expedition. It is said he is appointed Governor of the Havannah. • On the 18th of Brumaire, Admiral VILLARET DE Joy _l ? y virtue of an Artete of the Consuls, of the . 9th of Frimaire, of the year 8, authorising commanders 'to make such regulations as they should find necessary for the maintenance of order .and subordination on beard their vessels, had stiPpressed ail the Juries, and ordered that every , person on board, who should be accused of arft crime, shed:{ be brought befdre a Corsi de justice, composed as prescribed by. the law of the zzd .of August 1790, allowing an appeal to a C o urt--Martial, if the person accused should ob. jea to the competence of the Consil . de jartice. A'n ArretE of the Consuls of ther 27th, orders, That there shall be three Monthly Mails esta blished for the Army in Saint . Domingo, viz.— from Brest in the first Decade ; from Nantes, or ! L' ,rient, in the secon,l; and from Roehfort, in the third Decade. Individuals who go to join the army, :nay t ake their passage on board any of the Aiisos Which carry out these Mails: bECEMDEIi l3s Citizen OTTd, appointed Minister Plenipoten tiary frc n n the French Republic to the United States of America, has been appointed by an Arrtte of the 4th Frimaite, Minister Plenipotentiary to His 8R I rAXN t C MAJESTY, to exercise the funaions of that appointment till the conclusion of a Definitife ?caec a By an Arrete of the zBth of Frimaire, General 11 1ED 0 Ov IE LE is appointed Envoy Extraordinary and Minister Plenipotentiary from the French Re_ Public to His Majesty the EMPEROR of all the RUSS I A.S. The Minister:, for exterior relations and for the interior are preparing to set out for Lions. They Write from that City that the greater part of the Cis a ipine Deputies are, arrived there; so that the opening of the Consulta cannot be long delayed. A In the Proclamation by which the Cisalpine Go; vernment creates and ;convokes this extraordinary , Consulta, it is said that the First Consul, the au-. thor and restorer of the Cisalpi ne Republic, will Part a k e , with the Deputies cif the Consulta, the 'weight of the deliberations. The day of the departure of the First Con s ul . for tyons is not yet fixed • with cettainty. The inha bitants of that commercial city, so particularly in terested in the Peace, wait with the most anxious impatience to see him who has procured it for them. The Chamber which is intend'ed for him is furnish ed with all the sumptuous elegance that - may be expeae4 from .the industry and taste of the Lyonesc. DECEMBER 26. TheCoriservative Senate in the .Sitting of yes terday, being assembles to tile number of Members prescribed by the 9oth Article of the Constitution, proceeded • inconformity with the 16th Article, to the choice of : a Senator. The - three Candidates Were the Citizens DEsts,touNr ER, presented by the Tribunal.; Gil EGOlitE, by •the„Legislative Body'; and LA MARTILLIEREj by the First Consul. Citizen GItEGOIRE obtained a majority of the suffrages, and was in consequence declared a IVlern ber of the Conservative Senate. The Division which sailed .from on the 23d of Frimaire, to join the expedition to St: Do ',zing°, consists of five Ships; of which one is of the line ; that which sailed on the same day from Ro . c . h. fart, consists of eleven Ships, of which five are of the line. • It is reported at Frankfort, thdt the Austrian. Troops will immediately enter Moldavia.: the in habitants of that country, it is added, loudly ex. press their wish to pass under the Austiian Govern. RArrsnoN, Dec. 11.-Accotding to Letters fr om Vienna, a plan of indemnities have been formed, the principal object of which is to preserve the Con stitution of the German Empire. This plan was transmitted, towards the end of 'November, to the Courts of Petersburgb, and London. The answer of these Courts will de termine the nature of the extraordinary deputation of the Empire, which certainly will not assemble for - some time. It is said that Negotiations .have been again opened between the Courts of Vienna and Munich, (rn the subject of the. exchange of a small part of tavaria, and that the Imperial Court has a con fident hope of attaining its objet. WALK/ NC.MATCH Gentleman orGlasgow lately undertook, for a considerable wager, to walk forty miles in nine hours and a half, which he won With ease, between Thursday evening and Friday ?Porning last. He started exaftly at six in the even.: ' l g, and finished at fourteen minutes after three in the morning, being sixteen minutes within the time allowed. The place upon 'which he walked l '‘as under the shade of the 'Glasgow Tope , work, ,‘'' , llcre one-eighth part of a mile was measured off. tgilsiderzlie bets ;b ere depending cn the occasion, r L.IIV REPORT. COURT OF KING's SlITTi?iG$ /IFORt. LORD KENYON , AND A SPECIAL . J 11111:, IN CILIII.DIIALL, VONDON. BEATSON V. SCIIANK AND.OTHERS.. TH I s cause is of considerable i)ublic importance, and therefore we apprehend that a detail a ,the most material parrs of it will be acceptible to the It was an action by the Plaintiff' as Owner of the` f ship the Asia, for the hire of that • vessel in the Public service. The Defendants are'the Commis sioners,of. the Transport Board. • ' Mr. ERSKINE opened the case on the part . ofi the Plaintiff. He said it would not be necessary for him to call fora minute attention to the form of the pleadings in this cause, because, by admissions, extremely honourable to the defendants, the que stion between the parties had been made plain and simple, and had been reduced to, a very narrow compass. Not- did he find himself called upon to say any thing against the propriety of the Defendants' conduttin defending the action. They were per. sons iii an ostensible situation; and they felt, as they ought to fed, that they ought not to give assay the money of the Public until they were satisfied that those who claimed it, had a right in law and justice so to claim it. At the same time,. it was also clear, that when any individual had performed labour in the service of the Public, he was entitled to be paid for such labour, according to its value, if the contrast on which he did it was not specific ; if on a specific contract, then, ac cording to the letter of such contraa. This was an action for the nonperformance of a stipulation in the Charter-party of a vessel of which the Plain. tiff was the Owner, against the, Defendants, who were the Commissioners of the Ttansport Board ; and the clause which was mt.N.t important in the whole instrument, indeed the only one on which the whole case turned, was that which stated, " That in case of loss of time, breach of orders, negleet of duty, or from the ship's inability to execute or proceed on the service, being made ap pear, the Commissioners shall be at liberty to make such a mula as shall be by them judged fit and reasonable ;" that is, the Commissioners should, in either of 'the above cases, make a reasonable abatement in the freight of such vessels:as they. hired for the public service, of which thiS vessel was one. The reasonableness of that inula could nor come in question in this cause, for it was ad mitted, that if the Commissioners were right in making zny abatement, the quantum of the abate ment was to be judged by the Commissioners only. The first question here would be, indeed, properly speaking, the only one would be, whether there was or was not cause for the Commis'sioners im posing any mold on the Plaintiff's Freight for the hire of this Ship ? When be said Cause, he did not mean the whim of individuals, but a reasonable Cause. That was the substance of the issue between the Parties in this cause. The Plaintiff, .by this attion, maintained they had not, and the Commis- Sioners contended that they had. That was the issue. There was another, but it teas a minor question.— What rate of Freight the Plaintiff was entitled to hale. For the first twelve months the sum was specified, but then the Charter went on to provide, that if the Ship continued longer in, the service, she should be allowed according to the rate allowed to.other Ships. This Ship, the Asia, was taltht up in the. Public Service, by the Defendants, for the purpose of carry ing Troops to Quebec: on the 18th of August a 860; she was to sail from Cork to this place ; at that .time; he said, no fewer than 688 persons were on board this vessel. He understood it was to be con tended; in the course of this cause, there Was sufficient • .accommodation on board this Ship for this number of persons : in one sense, that was certainly correct ; for time might be sufficient accommoda tion in one sense, when there was not sufficient ac commodation in another sense : 'that was to say, there might be sufficient accommodation Merely to stow the bodies of that ntiniber of persons on board this vessel, but not sufficient accommodation to pre serve their•health ; which was an important con.' sideratiom. .It was daily more and more discover ed, that there was not any thing more injurious to health, than that of crowding a great numbei' of peo ple together in any place ; more especially on boahl a . shipi where the confinement was attended with inconveniences which Gould not be felt on shore. It was a' sure way to engender disease ; and that was most lamentably felt in this Case; A woman was .put - on board with a child that was infected with the small=pox : the child and the mother were removed out of the ship in twenty-four hours ; but, • before that time ; the contagion had spread itself, and had been communicated to others On hoard the vessel and that 'contagious .distemper produced an other and a fixed malady ; with an account of which it was unnecessary for him to nauseate those who heard him ; it was sufficient to say s chat the tale of the voyage of this ship was a melancholy one; and humanity shuddered and shrunk at the scene: nor in deed could it be otherwise, where there was such a number of persons in so small a space ; especially after there had been a tobtagions distetriper on board.— The Vessel; however - sailed on her voyage, but such was her state when she arrived at Quebec ; that several of the crew ; he believed six of them, went on shore and deserted her ; leaving a consider ' able portion of their wages behind them ; rather than expose 'themselves to . the risk of the contagion which they knew to be on board. In thii state of the Vessel, au order came from General HiI•TER, io ten days after her .arrival at Quebec; by Which it Was directed that t too' persons should be einbark ed on board her, and carried to Halifax The Plaintiff's Crew had desetted-on the 6th of No., veraber an attempt was Made to put ta sea; for. the purpose of carrying these r too persons to Halifai, but it was impossible ; for the Chief Mate, the Steward ; the Armourer and ten of the Sailors were sent on shore to sick: quarters, It was under these circumstances that General Hunter sent this order for the ship to proceed to Halifax with r too men, an order which he could scarcely reconcile with the good sense and hurnanity of that able Officer ; he could not possibly account for it but by supposing that somehow or other, thq case must have been Misrepresented to him. TO prepare for this voyao from Ouebee to Halifaa; there were direttions given to get Some Canadians'ao help to navigate Jis yes. sel a The Plaintiff was so.desirous of 'obeytng the Ordead-General Hunter; that he offered very large sums of minaey even for Canadian Sailors. Lord KaNyoN—".The only question to be tried by the Jtiry is, Whether there was a cause for the Commissioners to impose a mulct on the Plaintiff ? The quantum of'-it Is not to be disputed. 'really think that is the fair - construdion of the Chart party ;' but the admissions, in this case, put that matter out of &au - bt, fbr a rt is so stated in the ad_ missions" Y MratILSKINE said, he admitted that if the Plain ' tiff was 'bound: to provide proper Seamen at all times,. and in all placeS, and that he nevertheless sailed with, less than the complement of his crew, aßst 'was obliged to put back an that account, thew die'Plaintiff could have no right to a verdita in this. cause. But if an improper number olpersons were gut in the ship; by order of the Commissioners, or those whom the M Captain ust obey, or, - if any were put on board by their authority, who kid'any contagious distemper on them, so thik the illness which appeared on board terrified the Sailors, so that some of them deserted,. and 'by which means it became impossible for the Captain to sail in safe ty, then, he maintained, upon the principlesaaf 'jus tice, as well as by the. Charter-party in' this case, . and the true construction to be put upon it, the Plaintiff was entitled to a veidid. There had been a cause of this sort tried many years ago, it was Wilkinson against the Commissioners of the Navy. The Captain, in that case, sailed.from England to America, and back again' to ngland, and. the question was, Whether the Captain had, in that case, been guilty of negligence or not ? The ves sel was oyertaken by a atormain the Atlantic. The crew refused to proceed on the voyage, and he was obliged to put in at one of the WeSt India islands. The Commissioners attempted to mulct him for this; alledging that it .was really owing to his negligence. Mr. ERSKINE said, he was Counsel for the Plaintiff ; and 'obtained a verdkt in that cause.- That verditt.was not satisfa&oty to Lord MANSFIELD, before whom the cause was tried ; that Noble and Learned Judge, thinking it did nor appear from thp evidence there was• a sufficient de gree of necessity upon the Captain to put into port , when he did so, instead of proceeeding upon his voyage, and .the Court being of the same opinion upon the report of his Lordship, a new trial was had. On the second trial Admiral Campbell sat by his Lordship. The question was admitted to be, , c they what happened in that vO) age was a sufficient Cause to operate upon a man of an ordinary firmness and constancy of mind, to do what the Captaiii did in that case ? When the evidence was gorie through, Lord MANSFIELD asked 'the Admiral, " Are you of opinion upon this evidence, as an experienced Officer, there was a sufficient cause to operate bit the mind of a man of ordinary nerve, as it did on the Captain in this case'?" AdMiral Campbell answer ed, " Why my Lord, sitting here in Cdurt, per- , featly free from apprehension; I am of opinion there wag Dot sufficient cause ; that it might have been better if he had done otherwise, but I cannot tell you how I should have felt on that occasion, be cause I was not there, for the danger; as it appeared then to him, might be 'such as . it might be impoS 'sible for any Man, sitting in a place of safety, to say what he would do in such a situation:" This was the substance of what Minim! Campbell said on that occasiona--Lord MANSFIELD, with that readiness whiCh he always had about him, to do justice immediately, said, " this Canse is over," and consequently a Verdict :?'as again found' for the Plaintiff. It was upon this piineiple he built his right to the Verdict of the Juty in this Case if the AiI'ORNEY GENT RAL could sheW any niala fides, or . negligence in this , Case, or any disposition in this Captain to linger or loiter by the way, in any part of this Voyage, Mr. EasxlNE said ; he should not ask for a Verditi, , In a word, his Case, on the park of the Plaintiff *as this, and it should be proved to the Jury :—" That an im proper number of persons were put on board this ship at 'Cork, •by order of Government ; that there was a contagions distemper; augmented by thus crowding persons together ; that when the ship arrived at Ouebee, six Sailors deserted her from fear of the Contagion ; chusing rather to lose several months wages than to expose themselves to the danger which they apprehended on board ; that while this ship was in this state, General Hunter ordered that i job - p4sons should be carried on board of her from Quebec to Halifax; which was at that time impossible ; that the Vessel ought to be fumigated over and over again; before she was or dered to pioceed any further. Having said this, lie indst beg. to say a word or two as to General Hun ter : he begged it to be understood that he believed the case of this ship Was not faithfUlly Oinmunicat.. ed td General Hunter, Or he would not have made this order: He knew Genetal Hunter from the earliest part Of his military life ; General Hunter and himself were together in the ServiCe as Lieu tenants in the same Regiment; nor could he saY any thing against a man whom he so loved and honoured, but he believed he was; in this Case, in a situation in which he was imposed upon." The ATTORNEY GENERAL said; that notwith standing all the alatin which his Learned Friend had introduced into this . Case, the Captain had thought fit to take all these troops on board ; his Learned Friend had slated a number of things which existed only in fancy, but his Learned Friend was not optin oath. As to the Case on. which Admi ral Campbell had been examined; he had been haunted by the ghost of it fca• these twenty years: Lord KENYON said, he had heard that Case quoted very often; ht there was so much good sense in it ; that he believed he should never be tired of hearing it: The Charter party On Which this ACtion was founded was then put in and read; the material part of which; as opened by Mr. ErisaiNa, was " That in case of loss of time; breach of orders, or from the ship's inability to execute or proceed on the Service, on the same . being made appear, the Commissionets shall be at liberty to make such a multi as shall be by them judged fit and reason- . able." Lord KENY6N said, that • this condusion was to dtavn, by the Defendants; the CortithisSiOners, )4;,arbitrarily; lint it was according to coMtilort S'tinse and Justice to be a reasonable ConclasiotfrOni a , the circumstances which came before them: - The M'TORNEY GENlOL_admittO that it was ad arbilriiillibi,y; •• . Another Clatie of the. Charter:party, provided ",that the said ship shall be manned in proportion , tOrtite, men and boys, for every hundred torts, fit • and capable to . manage and sail her; and shall have 'twenty carriage guns mounted, &c." That the4whole number of men shall be constant_ . ly on board, and-there shall be a regular bookkept of their entry aod discharge." James Sherwoody being r vorn, said, " I was alt .sailcrempiyed on board the Asia. I was onboard her in England. - She sailed from Cork, I cannot say exadly, but it ;might be about three weeks be inre the ciinvoy sailed fur Quebec, which was about the 27th or 28,th August. 'We had eight-or nine and • forty in number of crew,. tnen and boys. 'there were about 703 troops put on board-: I cannot be exact as to the number ; ' but the vessel v..as much crowded. After` we had been •on board five• or six days, a child'had. the small-pox oti board, and a disorder spread . .very' rapidly through the ship, and' a very bad one it was. As mai)y troops were . put up in. the upper part (4. the - ship, as ,we could, antl some parts'of the ship were turned into an hospital, and that was necessary, - :from the statelif the ship.— Many were put. upon the, gun-deck. After the Vessel 114 been out some time, a malignant fever broke- out in the ship, among the troops. That did not spread .so'rapidly as the other disteniper did. The first person taken ill, was the third mate, and then a seaman e : They both died. As much care as possible was taken to keep those" that were from those' that were well, on the vcyage to Quebec. On the zoth of Oaolier we arrived at Qucbec. During the. voyage every care Was taken, that was possible, to keep the ship pure ; the decks were fumigated four or iiye times a week, and sometimes oftener, and sprinkled with vinegar, nine or ten gallons of a morning ; and washed daily. I think 18. or 19 of the troops died on the passage to Que. bee, one woman, and zo or z I children, in conse quence of the distemper that spread on board. The disorder spread rapidly after we got to Qiiebec.-- .The crew was in a state of alarM on account of it. I remember that some of them ran away from the ship: about the 21st-of Odober, at midi,-might. Six of them deserted in this manner iri one of the boats. The Captain took all possible care to prevent it ; and when he was informed of it,, he took a constable to take them, but there was but one of them appear= eef at that time: He exerted himself to the utmost, and could get but one of them. There waS -no great number. of the crew in good health at that . time, because most of them were affeded. There was no reason at all, that I perceived; for the crew deserting the ship; except their apprehen sion of the distemper on board. We had all .been well treated and well provided for during the voyage, nor had there been any qurrel with any body: The crew forfeited four months wages when they deserted the ship ; they, had 41: and some 41. los. a month. In two days the troops were disembarked, the 21st and 2zd of Odober; at Quebec: As soon as possible after the troops were disembarked, every thing Was done which the Captain could do to purify the- ship. , In six or seven days afterwards, the second Mate and others went on shore, Because they had the fever: On the 29th, or •the 3oth of 06 - tobet, I think that was; I was also seized with that fever on the zoth of Odober, btit remained on board till the Bth or 9th of NoVember ; besides thote that ran away from the ship, there were not above seven of the whole crew, that escaped the fever: Captain Strong used all his exertions to prevent the fever from spreading at Quebec. The first appear ance of distemper was when we tailed from COrk, and that was a child-having the stnalLpox, and that child was put on shore with its mother, I be:. lieve." On •crOss.:examination, he said; six of the men deserted : I cannOt i4 say hOw soon after the ship had been purified snore were put on boa rd again. She - was reported to 'be ready to receive troops afterwards: .But.l do not knot who reported her to be ready. The ATTORNEY GENERAIi Said, that the ad mission 'was; that she was reported to be ready to receive troops, and that; .as tat it went; was bidding on the Plaintiff. Mr; ERsKINE contended; that thfs:waS not the sense of the admission: The ATTORNEY •OENERAL said, if it iVal not the sense of the admission, he ought never to make amither admission: The WitnesS then 'proceededl understand that a man was offered. The Captain offered guineas for 'the run from Quebec to Halifax. I have heard it; but I do not knOw it. Lord KENvotl--;- " How long were the trO6pS put on board after the ship came to Quebec ?" Mr. PARK—On the first of November by the admissions; My Lord. The Witness" in answer to a question from rule ATTORNEY GENERAL; said, that in point of lt, they never completed their crew at Quebec ; and that they were at Quebec frdin November until the 16th of 'May. The fidst set in in 06tOber; but the very Cold Weather began► in November. That they were' to have taken Troops in at Quebec and proceed• to Halifax; and from thence to take in Maroons for . Sierra Leone. His Royal Highness the Duke of 'IStNt •was at Quebec at this time.' The Wiiness'Was ill until the 3c'th of Novernber, and did not know the number that were put on board befOre that tithe. George Christie was or. board the Asia Hi the 'voyage from Cork to ()lichee. He gave an account as the laSt Witness, of the sickness that was on board for that time, and that they used to purify the ship. He said that when the ship arrived at Que bec; there were sent on board her ; between i r and rzcio troops ; they were so much crowded' that they could hardly move on deck. At this time, said the Witness' we had not above 54. or . 55 of the crew on board, -and yet there was an - atteMpt made to sail in that situation, but it was not possibre to do it.— After this some Canadian Seamen, as they were called, were sent on board, but they were no Sea men at all, although they were the besf‘that could '.. J was )Od ece s of and is ,vas ig. era re, for 'eh :he :al he nC rat tel .e. eta by rat 100 10- r:i 1