Dunlap's Pennsylvania packet , The general advertiser — Philadelphia, Pa., 1774-02-07 00:00:00, page 2

From the Pennsylvania Journal.
H E author of the address to the Judge of
I the Vice-Admiralty Court in this place,
which made its appearance lately in the public pa
pers, has advanced some things receding the sup
posed powers intended to be delegated by the com
mission con ftituting that Court, which appear- to
me, to require some particular notice and remark.
I am aware, under how great disadvantage any
writer must expe& to labour, who shall venture to
en ^B- on the fide °f a Court of Admiralty; but
however popular and general prejudice may tend
to hinder the truth from reaching the understand
ing, y^t happily for mankind, whenever it does
make its way thither, the public judgment is al
ways ready to be pronounced on its fide.
I would by no means be understood to be an ad
vocate for Courts of Admiralty, as such, in pre
ference to the Courts of common law. No man
can have a higher idea, or a more favourable opinion
of trials byjury, than I have:—Nor would Ihave
the powers of Admiralty Courts extended any
farther than they have usually been. 1 only un
dertake to shew, that they are not extended fur
ther, in the case, at present under consideration.
Our authortakes notice, that the powers of the
Court of Admiralty, in England, have undergone
several alterations, by ads of Parliament.—The
fame thing might have been observed of other
Courts; but he fays, the statute of the 28th of
Henry the Sth, the preamble of which sets forth
the difficulty of obtaining full proof, according to
the forms and rules of the Admiralty Court, took
from that Court the cognizance of treason, robbery
and murder committed on the high seas, and gave
the fame to a new tribunal, directing that the trial
fliould be by jury.* This is agreed, and also,
that no hngle Judge of Admiralty since that time,
either in England, or the colonies, ought to be
vested with such power.
But our author thinks he has difeovered a clause
in this commiflion, that vests the judge with that
power, and then exclaims loudly—about a sus
pending power attempted to be exercised, and
what not: I own I was not a little surprised to
hear, that the judge Was furnifhed with such au
thority, and almost as much so, that no body had
difeovered it before pow; but when I came to at
tend to the words of the commission, 1 soon found
that all the difficulty proceeded from the author's
not fufficiently attending to the legal import of
the word crime,, and his confounding that word,
with the idea of fe'ony. —The clause in the com
mission, on which he founds his argument, is the
following, " And we do hereby commit and grant
" unto you—our power and authority to take
" cognizance of, and proceed in, all causes civil
" and maritime, and in complaints, contrasts, of
" fences, or fufpeded offences, crimes, pleas," &c.
Now although every felony may be said to in
clude in it a crime, or to be a criminal ads, yet
every crime does not include in it a felony,§ —
Should one sailor wound and maim another at sea,
this would be both an offence and a crime, punish
able by a Court of Admiralty; but it would not
be a capital offence , nor fubje& him to the punish
ment of death, as would treason, robbery and
murder, as being felonies.—This diftin&ion is so
obvious, and so well known, that I believe I have
no need to fay any thing more upon it.
I hope then that the public will find, that this
commission is not fraught with quite so much mif
chief, as our author imagined, and that they will
be relieved from their fears, if they have ever had
any, of what the present judge, or his more for
midable successor may do on the score of prosecu
tions for felony.
Our author next proceeds to take notice of the'
civil part of the commission, and after having ob
served, that by the law of England the Admiralty
hath no manner of cognizance of any contrad, or
of any other thing done, within the body of any
county, either by land or water; he fays, “ confe
" quently it hath no jurisdiction to hear, causes
" that aiife on bills of exchange, bi'ls of loading,
" bottomry bonds, charter parties, policies ofin
" furance or freight, but that the commission in
" eludes all these, and many more articles ofthat
" nature." —The general principle advanced here,
by our author, cannot properly be said not to be
true, and yet it does not express the whole truth.
Had he added, after the words, or of any other
thing done within the body of any county, these
words, not being of a marine nature, the whole
of the true idea would have been well enough ex
pressed. I cannot explain this matter better than
by tranferibing a few passages from an approved
modern author, who wrote purposely for the use
of merchants and others, concerned in maritime
affairs, and who cites adjudged cases in support of
what he advances.--The author I refer to is Beawes,
who in his Lex Mercatoria Rediviva, p. 246, fays,
“ the Admiralty hath jurisdiction in cases offreight,•
" mariners wages, breach of charter parties,
" though made within the realm, if the penalty be
" not demanded. And likewise in the case of
" building, mending, saving, and victualling (hips,
" &c. so as the suit be against the [hip, and not
" only against the parties."
Ibid. “ It is allowed by all the common law
" yers and civilians, that the Lord Admiral has
“ cognizance of feamens wages and contracts and
“ debts fa making foips, also of things done in na
" vigable rivers, concerning damages to persons,
" fliips, goods, annoyances of free passage, &c.
“ of contraCis, and other things done beyond lea,
" relating to navigation and marine trade.
" But if a contract be made beyond sea, fordo
" ing of an act, or payment of money within this
" kingdom or the contract is upon the sea, and net
" for a marine cause, it (hall be tried by jury
" the Admiralty may hold plea for feamens wages,
“ &c. because they become due /dr labourite on
" the sea, and the contract made upon land, is only
“ to ascertain them.
Ibid. “ The Court of Admiralty may award
“execution on land, though not hold plea on any
0 thing arising on land."
* 73eii ^izof if. 3. c. 7,diverts the trial of these
(treason executed) in the plantations.
§ See Wood, ~ 340, cites Hales pl. C. &c.
From the foregoing specimens, the judicious
reader will be able to apply the general rule and
principles of the law to every article mentioned in
the commission before us, and he may also find
them all laid down in the books of the law, as of
Admiralty jurisdiction, whatever resolutions there
have been concerning wreck. And to these ge
neral principles, I must refer some of the matters
mentioned by the author, as it would swell to a
volume to examine every article minutely, as whe
ther, there can in no case be a (hip-wreck at sea,
or whether wreck may not be cast ashore and yet
be afloat at high water —whether banks of rivers
may not be considered as appurtenant to the rivers,
since (hips may be made fall to them, by casting
their anchors ashore—and whether, by the words
ports, creeks and rivers, is not meant such as are
navigable, and below the firft bridges, as mention
ed by the statutes. It is enough that I observe,
that in all these, and every other case mentioned
in the commission, the particular articles are qua
lified with an", according to the civil and maritime
" Jaws and customs of our High Court of Admi
" ralty in England." And whether the Supreme
Court of this province have a power to issue a
writ of prohibition or not, though ofthat I think
there can be no great question ;||yet I cannot doubt,
but that the gentlemen ofthe law would find ways
enough to bring the matter before a common law
court, should a Court of Admiralty, in any in
stance, exceed the limits of the law, by issuing
process, where they have no jurifdidion.
I find the author, in copying the commission,
has put certain wor^s in italicks, thereby intima
ting, no doubt, that they are of dangerous im
port —thus the word tax. Is it possible he should
imagine, that by that word a power is intended
to be given to that court, to tax' the people, in
the common acceptation ofthe word? It plainly
means a power to tax coffs, to assess fines, and
other matters ofthat kind in court—a power com
mon to all courts —the fame may be said of com
pelling witnesses, and the like.
There is one matter however, so particularly
pointed at, by our author, that I may not pass it
over without some more full and explicit remark#
This is the clause which refpe'Rs fhipwrights—
who, our author tells us, are a numerous body
of men—and he might have added—a very ufeful
body of men, too-1-so much so, that the law has
taken care to put it in the power of a court of
Admiralty, to lend its aid for their help and be
nefit where a common law court cannot so well do
it, from the different forms of proceeding. That
this is the case will appear from the tranferipts
above, taken from Beawes. To exemplify the
matter: suppose a foreign vessel, a French ship,
for instance, should come into this port, in order
to refit, having sprung a leak, and the Captain
should employ a number of shipwrights to repair
her, who having done their work, the Captain
should refufe to pay their bills, —in this case, the
Court of Admiralty, upon application to that pur
pose, might iffiie process whereby the ship might
be arretted and detained, until the shipwrights,
within the compass of a few days, might obtain a
decree, have the ship fold, and their dues paid.
This is that power which it seems shipwrights have
so much occasion to dread, and I know of none
that refpeßs fifhermen, that is more alarming.
To conclude as to this point, it will most un
doubtedly appear, upon enquiry, that this com
mission, as to the obje&s of process and judgment,
doth not differ from all other commissions of Admi
ralty but is substantially the fame with them.
Our author fays this don't appear, perhaps he
means only that it don't appear in news-papers,
for he certainly might e#ily have known howthat
matter stands. Ihave before me great part of one
from a neighbouring province, as copied by way
of recital in a commission of deputation. I find in
that, the very fame words which we have been
canvassing, viz. the words offences and crimes,
banks, and bills of loading with many more, in a
word so far as the fame is copied, it appears to have
been drawn from one and the fame original stand
ard, from which, ! dare fay, the clerks of office,
make out all these commissions, and which have
been praftifed upon, and submitted to, in the co
lonies, for the space of about one hundred years.
I will now proceed to the consideration of ano
ther objection, which our author has, against the
mode of paying the judges salary.—This, he takes
notice, is made payable in the firfl place out of
monies arising from penalties and forfeitures, which
proceed from condemnations which the judge him
feif makes, but why it should be more exception
able to have the salary payable out of this branch,
in the firft, rather than the lad place, I am at a
loss.
I cannot help thinking, however plausible this
objeAion may appear in the general view of it, that
it will entirely vanish upon a closer examination,
the true state of this whole matter, is this : When
the four Vice Admiralty Courts were lately ap
pointed, in order to free them from those objedi
ons which had been made against the mode of pay
ing the former judges, in the case of captures in
time of war, it was concluded to give these judges
certain fixt fams by way of salary, in lieu of all
other fees and perquisites whatever, and it was
thought proper not to make these salaries payable
out of any monies arising from the Revenue a&sin
America, perhaps among other reasons, because
it was thought these might not be of any perma
nent duration. Be that as it may, these salaries
were in fa& made payable out of the monies ari
sing within the respective didrifts, by way of pe
nalties and forfeitures, if there should be fufficient,
but ultimately if needed, out of a large and per
manent fund, arising from the sales of old naval
(lores, and which it was reasonably supposed,
would not fail, so long as the nation itfelf should
last, andinafmuch as these judges refidedin Ame
rica, and the penalty monies after being carried v
into the hands ofthe cashier at Bolton, being to be
sent to England at the end of each year, unless
firft drawn out here, it became highly expedient
and proper, that these judges should apply fortheir
salaries here firft, where only there was any room
| |See if vol. Province Laud, p. 3384
to suppose their might be a deficiency, and not
fufferthofe monies to be sent to England, merely
to be drawn back again, and it was necessary, to
be known in England how much had been paid
here, in order for the balances' to be paid there.
Upon this plan and view of the matter, the Lords
of the Treasury issued a standing order to the
Commissioners at Boston to draw upon their cash
ier annually, for the paymentof these salaries, out
of those monies, so far as they would go, and to
certify the matter home, which certificates go to
the Treasurer of the navy in England, who, in
like manner has a standing order to pay the balances,
all which is done of course and the monies paid to
the agents of these judges, at the refpedive places,
without any particular application frpm the judges
themselves.
This being the case, whence arises this suppo
sed bias in the case? 'I he judge neither adds to
his salary by condemning, nor lessens it by ac
quitting. It is no uncommon thing for common
law judges to be paid, out of the gross sums ari
sing, in part from fines and mulcts of their own
imposing, and in part, from the other supplies of
the community, and yet no body ever thought these
judges were in danger of being biaffed by this
means. It is true, they receive their pay out of
the gross sums indiferiminately, but doth that
make any difference to the point in question ? What
if an order should issue to a collector of a public
tax, before the monies got out of his hands into
the hands of the public treasurer, to pay a certain
sum, ifhe should have fufficient monies in his hands,
and the treasurer to make up the residue, if the
colleflor should not have fufficient? This,! con
ceive, would not differ materially from waiting
till the collector had paid over all the monies in
his hands to the treasurer, and then making out
the whole ofthe order upon him. The penalty
and forfeiture monies in the case before us, are
not the property of these judges, but belong to
the crown, and are at the difpefal of the crown as
much as any other public monies whatever—they
are all of them indeed applied to certain demands
of the state, some to one service, and some to ano
ther. Upon the whole, it appears to me, and I
cannot but think it will to every one, who is dis
posed to view the matter in a full and fair light,
that this supposed bias, and judging in a man's own
cause, is purely imaginary.
The times, it is said, are critical, and every
public measure to be watched with a jealous eye—
I would not wish to have the watch notkept up, I
only wish, that under the general alarm painted
boards, may not be mistaken for real fpeftres: But
it is further said,“ that Czfar's wife should “ not
even be fufpeded."—Caefar's wife ought, no doubt,
to be very careful not to farnifh Caesar with any
ground of jealousy ; hut if from a general discon
tent, occasioned by the ill treatment of his other
friends, he will fufped his wife, without a cause,
if ffie is fucha woman, as she ought to be, poffefl'ed
of virtue and honour, her husband's suspicion, must
sensibly touch her delicacy; but I think her pain
ought to be considered as her misfortune and not
her fault.
cIVIs.
ofoofocfocfo ofocfcofccfccfocfocfcofocfccfo^
Q_ U E B E C, Jan. T 3.
ON Tuesday the 4th instant, one Francis La
Montagne, of the Parish ofSt. Michael, kil
led his own son, a boy about eleven years of age,
by (hiking him on the head and face four blows
with an ax. About four years ago he had been
under a dodor for lunacy, and a few days before
he committed this horrid action had shewn some
signs of insanity. He was brought to town on
Monday last, and committed to the public goal.
BOST O N, Jan. 27.
Yesterday the Great and General Court or As
sembly of this province met here, agreeable to
the last prorogation, when his Excellency the Go
vernor was pleased to make the following Speech
to both Houses, viz.
Gentlemen of the Council, and
Gentlemen ofthe Ho^fe of Representatives,
TH E letters which I have received since your
last session from the Right Honourable the
Earl of Dartmouth, one of his Majesty's prin
cipal Secretaries of State, have divers matters in
them, which I am now to communicate to you.
The Indians of Martha's Vineyard have, by
their Agent, made their application to his Majesty
in Council, refpe&ing their claim to the island
Chobboquiddick. A copy of their petition shall
be laid before you. No determination has been
yet made upon it. They are recommended to my
countenance and protection. In the year 1763
their case was brought before the General Court
and referred to a Committee of both Houses, by
whom, I have reason to think, it was fully and
impartially considered; but, by some means or
other, no report from that Committee was ever
laid before the Court.—l am to desire you now
to take the affair into consideration, and I hope
you will prevent all grounds or pretence for any
further complaint ofthe denial or delay of Justice.
The settlement of the western line of this Pro
vince where it is bounded by the eastern line of
the Province of New-York has been laid before his
Majesty. I have the fatisfadion of being inform
ed, that the pait which I took in the settlement of
this line is considered as an acceptable service to
the Kirig, as it tended to bring to an issue a dis
pute which has been the source of so much mif
chief to two of his colonics. I have reason to ex
ped his Majesty's confirmation as soon as the necef
lary formalities of office will adhiit.
I gave the earliest attention to the request of
the Council and House in their address to roe of
the 23d of January last. I made the clcareft arid
fulleft representation of the case to which it re
ferred, and I am encouraged to hope forfuch deter
mination and order as shall be fatisfa&ory to you.
1 he judicial proceedings of die Governor and
Council as the Supreme Court of Probate and as
the Court for determining in cases of marriage and
divorce having been impeded in many instances
where the opinion of the Governor has been dif
ferent from that of the majority of Councilors
present, the^overnor having always considered
his consent as necessary to every judicial att: in
the year T 771, I Rated the arguments as well
against as for the claim of the Governor, and his
Majesty having been pleased to order the case thus
Rated to be laid before the Lords of his Majesty's
most honourable Privy Council, l am now able to
inform you that it has been fignified to me, to be
his Majeftys pleasure that I do acquiesce in the
determination of the majority of Councellors pre
sent, voting as a Court for proving wills and ad
ministration and deciding controversies concerning
marriage and divorce, although I should differ in
opinion from that majority. This order more
immediately refpeds the Councils; nevertheless,
the tender regard which his Majesty has (hewn'
for the interest and convenience of his fujedls, ia
a conftruaion of the charter, different from what
had been made by all his Governors ever since its
firft publication, makeit proper for me to comma
nicate the order to both houses.
I am required to fignify to you his Majesty's
disapprobation of the appointment of Committees
of correspondence in various instances, which fit
and a& during the recess of the GenerahCourt by
prorogation.
These are all the matters which, from my pub
lic letters, I am to lay before you at present.
Gentlemen of the House of Representative;
There never has been a time since the firft set
tlement of the Country when the treasury has
been in so good a state as it is now. I may con
gratulate the Province upon its being entirely free
from debt, the tax of the last year, with the
stock in the treasury, being equal to all the secu
rities due from the Government and to the char
ges of the current year. It is, at least, worth
confideriug whether it may not be advifeable in
your present session by a moderate duty on spiritu
ous liquor, by an additional impost or by such
other ways and means as you may think more fit,
to provide for the charges of another year. 7 his
will prevent the necessity which the Assembly at
the session in May next will otherwise be under
of Contrasting a new public debt.
Gentlemen of the Council, and
Gentlemen of the House of Representatives,
There are certain parts of the public business
of the Province which have usually been omitted
in the session which by charter must annually be
held in May, in expedion of another session at
this season ofthe year, and I need not particularly
point them out to you. I may not regled ear
nestly recommending to you to employ the pow
ers with which you are entrusted in promoting the
tranquility and good order of the Government.
You have no reason to doubt of the consent ofthe
chair to every bill or vote which shall have that
tendency.
Council Chamber, T. HUTCHINSON.
Jan. 26, 1774.
One John Malcom, an inferior Custom-House
officer, a fellow of great insolence, and a vile cha
radler, who had made himfelf very obnoxious to
the people, was, on last Tuesday evening severely
disciplined, Gripped, tarred and feathered, and
carted through the streets.
NEW-YOR K, Jan. 27.
Conclufoft of a letter from London (dated the 9th of
OHober, 1773) to a friend in Ne^-fork, began
in our paper of the 24th of January.
" How much the people are taxed, in England
you will judge, when I assure you, that according
to the best information I have been able to obtain,
estates in general, pay nearly a third of their year
ly value in taxes; nor are there any limits to their
extension, but the Ministry's apprehension, that
the people either could not, or would not submit
to pay any more.
o " By this you may judge what will be the con
dition of the colonies (which you may assure your
selves, will not be favoured) if they once admit
the right of the British Parliament to tax them,
or even if they submit to such taxation : For, if
the Ministry canlut prevail with you, either by
force, or cunning, to pay their exa^ions, they
will not be much concerned, whether you admit
their right or not; every day will strengthen their
pretensions to it, and their power, and proporti
onably weaken yours : And if you cannot now,
while the novelty, as well as injustice of the de
mand, forces your general attention, be unanimous
and resolute enough to defend your rights and pro
perty; it will be in vain for you to depend upon
recovering them afterwards; if they are once giv
en up they are loft for ever. The plausible pre
tence for the taxation of the British colonies, is,
that as they receive benefit and proteclion from
the British government, they ought to contribute
to the expence of it, especially as the people in
Great -Britain, are already burdened as heavily
as they are able to bear. This pretence gives the
measure, with ignorant people, some degree of po
pularity ; but the nation in general (I dont mean
those concerned in the executive powers of go
vernment) fee through the falacy, and detest it.
They look Upon the present struggle, between the
colonies, in defence of their rights and freedom,
and the arbitrary powers which would enclave
them, in a very interesting point of view. Thev
confider American freedom, as the palladium of
their ran : They, therefore wish and pray for
your firmnefs, perfeverande, and success ; though
from their present circumstances, and situation,
they Cannot yet effe&ually assist you. The Eng.
lifh constitution, ahnoft deployed in England,
from your virtue and resolution, they hope may
revive again, and recover its former life and vi
gour; at least, that if rooted out of G/eat-Bti.
tain, it may live and flourifh in America, which
now begins to be considered as an asylum from op
pterion, not oply in England, but in all the nations
of Europe. And if you do but preserve your
constitutional rights Arid liberties,' you may de
pend upon it, that people, and arts, and manofac--
tories, will flock to you from all quarters of the
globe; and riches, and power, will follow of
.course. But takecare you do not fall into the vi
ces, luxury and oppression, that have brought ru
in and deftrudiori AWall the greatest Rates and
kingdoms that ever appeared ip the world, and