United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1803-09-03 00:00:00, page 1

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prosperity, RELIGION & MORALITY are indispensable, , Oil jC^AD^R ^SEME^ „„ er W-C OMMU .
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J (edged.
Search.
8. That the penalty of opposing this
right of search is the confilcatipn of the
property so withheld from visitation.
9. That, on the breaking out of a war
it is the right of neutrals to carry on
theiraccuftomed trade,except in contra
band articles, or except they go to plac
es blockaded ; but that the coaming or
colonial trade cannot be the accullom
cd trade, (e)
10. That though a maritime neutral
power should Rridly abstain from car
tying the trade of a belligerent, or sup
plying him with contraband ; yet, if he
Kpens his ports to his privateers for the
purpose of hoflile equipment, if he gives
him Shelter for his prizes, and lends
him his courts, or fuffers him to ered
Iris own for the purposes of condemna
tion—this is a breach of neutrality and
a cause of war.
11. That before a ship or goods cap
tured can be disposed of by the captor,
there must be a regular judicialproceed
ing for trying for the legality of the
prize, wherein both parties must be
heard. , ,
12. That the proper and regular
court for trying the legality of a prize,
is the court of that date to which the
captor belongs. (,)
i 3. That the court must judge by
the /a<w of nations and by treaties, and
according to an established method of
determination universally and immedi
ately received.
Additional, —^ S. B.
14. The claim set up by Great Bri
tain, of intercepting all commerce be
tween a neutral country and the colo-
From th Nev-York Dail, Advertijer.
Sir,
I have tranferibed, and fend you in
doled an ertrad from a late work of
profeffor Browne, on the fubjeCr of civil
and admiralty law. Tothe "principles"
he has Rated as those" adopted by
Great-Britain refpeding neutral com
merce," I have added a few others,
that apply more particularly to Ameri
can merchants, with some (hort notes. If
you think this epitome of the leading
points rejecting neutral commerce,that
have been fettled 0 the English courts
of admiralty, will be ufeful or accepta
ble to your mercantile friends, you are
at liberty to make them public.
I remain, Sir
Yor obedient servant,
—o— S. B.
THE PRINCIPLES
ADOPTED by GREAT BRITAIN
RESPECTING
Neutral Commerce.
Extracted from th 2d vol. of Admiralty,
,- 297-
I. That free flips do net make free
goods ; or in other words that the pro
perty of enemies found on board of the
flips of fiiends is conffcable; but this
confifeation doth not extend to the car
rying (hip, which is even entitled to
freight, except in certain excepted
cases (4)
2. That the goods of a fiiend (if
lawful and not contraband) founded on
board an enemy's ship, are not feizca
ble, but ought to be restored to him
(the friend.)
“ 3. That contraband goods going to
the enemy,even though the property of
friends, are feizeable as prize, because
they enable the enemy the betterjo car
ry ou the war, the doing of which is a
departure from .neutrality ; and that
contraband is not exclusively confined
to implements of war. (b.)
4. That by carrying contraband (ar
ticles) the freights and expences are for
feited, but not thef sip, unless the con
traband belongs to her owner, or there
be some particular circumstances of ag
gravation.
'5. That neutral vefels breaking a
blockade are liable to confifeation, if
connufant (known) of the blockade ei
ther by nitration er by fee ; but not
so as to their cargo, unless the owners
of the cargo & re connufant of the blok
ade, and that the accidental absence of
the blockading force doth cot remove
the blockade, (c)
6. That the right of voting and
Marching merchants ships upon the high
seas, and not merely their papers, but
their cargoes, whatever be the ship, its
cargo, or its deftinarion, is an inconteft
isle right of the lawfully commiflioned
cruisers of every belligerent naiion.(^)
• ~ That the sovereign of the neutral
country cannot, confidently with the
law of nations, oppose this right of
20. In cases of re-capture or rescue
of British property from an enemy, by
a neutral, they allow him the salvage as
to a fubjed of Great Britain. In the
course of the late war the high court of
admiralty allowed a salvage to English
cruisers on the recapture of neutral pro
perty from the French, on the ground
of the notorious rapacity and lawless
conduct of the constituted authorities
of revolutionary France. Whether
the fame rule will be observed in the
present war must depend on the condud
of the French government toward neu
trals.
NOTES.
(a) Asin the cafeof a falfe destination, sup
pression or spoliation of papers by the matters,
for whose a&s the owners are liable. Freight
is also disallowed between a colony and the mo
ther country, for enemy's goods,found on board
of a neutral, so trading between the colony of
one, and the parent country of another enemy.
So in the coasting trade of an enemy. But it
is allowed between the ports of one enemy 8c
those of another, because this is a trade allow
ed in time of peace.
(6) It is the doctrine of the English admi
ralty, that what is to be considered as contra
band, “ must ever be fluctuating and depend on
the circumflances and flatus belli," (Rate of
war ) tn general, contraband is fixed by trea
ty. By the ißih article of the treaty between
the United States and Great Britain, "in order
to regulate what is in future to be efleemed
contraband of war, it is agreed, that under the
said denormnation (ball be comprised all arms
and implements serving for the purposes of war,
by land or fta, such as cannon, muskets, mor
tars, petards, bombs, grenades, carcaffcs, faucif
fes, carriages for cannon, mulkec rests, bandol
iers, gunpowder, match, falrpetre, ball, pikes,
swords, head-pieces, cutlaffcs, halberts, lances,
javelins, horse furniture, holders, belts, and ge
nerally all oth-r implements of war ; as also
timber for ship building, tar or rosin, copper in
sheets, fails, hemp, and cordage, and generally
whatever may serve diredly to the equipment
of vessels, unwrought iron and flr planks only
excepted ; and all the above articlcsare hereby
declared to be just articles of confifeation, when
ever they are attempted to be carried to an ene
my."
(c.) What ffiall, or shall not amount to
blockade is now pretty well fettled. It cannot
be limply by proclamation, there must be a
force actually invoking the port or place. In
the case of the Betsey, Murphy, (i Rob. Rep.
78) Sir W. Scott on this fubje& fays "three
things must be proved—l. the existence of an
actual blockade—2. the knowledge of the party,
j. force a& of violation either by going in, or
nies of an enemy, not allowed in t>ne of
peace is so far relaxed in favor of Amer
ican citizens trading to the Wed-Indies,
that they may import produce of any
kind from thence into the United States;
but here it must be ednfumed, fold or
exchanged ; it cannot be transhipped for
a foreign market, nor exported in the
fame vefTel on account and rifque of the
original owners.
15. But the last general inftru^ions
to the commanders of British Chips of
war, &c. neutrals are not allowed to
carry the produce of any of the colo
nies belonging to the enemies of Great
Britain, to an, port of Europe, except to
a British port, or to a port of that coun
try to which the neutral belongs. The
fame principle will most probably be
adopted in the prefect war.
16. Property whipped by a neutral,
and to remain neutral until it reaches
the country of an enemy to Great Bri
tain, but then to belong to such enemy;
in the British courts, is considered as
enemy's property from the moment of
its (hipment.
17. Great Britain allows neutrals to
purchase British vessels that have been
captured and regular!, condemned, but
the evidence of condemnation,purchafe,
&c. must all be perfectly clear, and the
title muff be indefectible. If the ship is
to revert to the feller, at the termina
tion of the war, the sale would be con
sidered as fraudulent and void.
18. The national charaßer of a mer
chant, and of his property depends on
his birth or residence, but more particu
larly on the latter ; residing in an ene
my's country for the purposes of trade,
and having a counting house or domicil
there; residing there as a confnl, and
carrying on trade ; being concerned in
a house in trade for some time after the
commencement of hostilities; have been
adjudged to be grounds for condemn
ing both vessels and cargoes. The na
tional character of the wafer of a vessel
is taken from his general employment,
and course of tiade.
19. If a belligerent takes possession of
a neutral vessel and fends her into port
for examination, and on her way the
master or crew of the neutral vessel ref
ct^e her from the captors, and (he is re
captured by the belligerents, the rescue
is held to be a just ground for condem
nation.
(d) But chib right (of all others the most
liable to abate and the most frequently viola
ted) is reftrided to the re infpedhon of the
ships papers and the examination of foe master
or mariners at sea ; if from these there is any
reasonable ground for suspicion, the neutral
vessel may be carried to the next and most
convenient port of the captor for examination
but altogether at his own rifque. The belligerent
under pretence of fearchiog for enemy's goods,"
however, has no right to order the neutral
master to leave his vessel with his papers, hut
mould go or fend on board of the neutral. By
the last treaty with Russia, this right is fub
jeded to very proper limitations.
~ (e) This is a new pretension fee up by G.
Br itain during the late war, but certainly not
an admitted principle of the law of nations.
O.lthe contrary,all Europe,(G. Britain except
ed) and the United States deny it. On this
point, G. Britain herfelf is not confittent or
uniform. In time of war she opens the ports
of her colonies for the admission of articles in
neutral bottoms, which they are prohibited from
carrying in time of peace. By the treaty of
1794, she allowed the U. States, in time of
war, privileges which she had ever before refuf
ed ; she allowed a trade from the enemies co
lonies to her own ports, and between the U.
States and her enemies colonies, not usual in
time of peace. In fad the principle is at once
unsound and impolitic. It is grounded on no
admitted right and supported only by force.
So far as relates to the U. States, it is impolitic,
for while Great Britain retains her present mar
itime superiority her enemies will not trust their
property on the ocean in their own vessels. If
American citizens are not allowed to trade with
her enemies' colonies during war, their pro
duce would perish in the hands of the cultivat
ors ; whereas if purchased with American cap
itals, and transported to Europe, a large pro
portion of the proceeds would eventually go to
the merchants and manufactures of Great Bri
tain.
LAW INTELLIGENCE.
—o—
— Court—Before the Hon. Mr.
Judice Livingston.
Newo-Tork, June 30, 1803.
COCK, w. IRVING d SMITH.
For negligence as Agents.
—o—
— fads which appeared in evi
dence on this trial, were Ihortly these :
—The plaintiff, a merchant residing in
Virginia, had sent a consignment of 15
hogiheads of tobacco, worth about
14.00 dollars, to the defendants, who
were commission merchants and Auc
tioneers, with dire&ions to fell the fame
for cash. They kept the tobaccoon hand
for some time,and then fold it to a cer
tain Mr. Gavin on a credit of 60 days.
At the time this sale was made it ap
peared that with a limited number of
(,) This has long been a fettled principle in
the British Code of maritime jurisprudence.
As it regards neutrals, however, it is often une
qual and injurious. Belligerents will be partial
to their own fubje&s. They are at once judge
and part. Under the persuasion of this truth,
and willing to accommodate differences with
this country, Great Britain, in the year 1794,
consented to wave this claim in favour of those
citizens of the United States whose property
had been irregularly captured or condemned at
the commencement of the late war. Hence
under the 7th article of Mr. Jay's treaty, a
board of commissioners was constituted of five
individuals, belonging to the two nations whose
province it was to review the decisions even of
the high court of appeals and to do full and
complete justice to the claimants, if that had
pot before been done.
(g.) No doubt, the rules of decision oug h t
to be "the law of nations and treaties." But
in many inflances the Englifo courts of admi
ralty bound their decisions and are guided in
their proceedings by the municipal regulations
prescribed by the king, or by parliament with
out permitting themfelvcs to enquire whether
these are conformable to the law of nations
and treaties," or not. By the 6th article of the
Ruffian treaty of 180 X, Great Britain stipulates,
"that the fentencea of her admiralty courts
shall be agreeable co the rules of the most rig
orous justice and equity, that they shall be de
livered' by faithful judges uninterested in the
tranfadion, and ffiall be " duly and promptly
executed." Such should be the rule of her
coodud towards all nations.
coming out, with a cargo laden after the com
mencement of the blockade. By the treaty of
June 18oz, with Raffia, G. Britain agrees that
"what the denomination of a blockaded port, is
to be applied only to one hear which mips of
war areriatioaed, and there is evident danger of
entering." So far as concerns the U. States this
point so fettled in the iVrh article of Mr. Jay's
treaty, which is in these words: "And whereas
it frequently happens that vessels fail for a port
or place belonging to an enemy without know
ing that the sane is either besieged, blockaded
or invested : it is agreed, that every vessel so
circumstanced, may be turned away from such
port or place, but the shall net be detained, nor
her cargo, if not contraband, beeonfifeated, un
less after notice she shall again attempt to enter ;
but file shall be permitted to go to any other
port or place file may think proper : Nor shall
any vessel or goods of either party that may have
entered into tech port or place, tefore the fame
was befieged,blockaded,or invested by the other,
and be found therein after the relation or sur
render of such place, be liable p confifeation,
but shall be restored to the owners or proprie
tors thereof."
perfons,Gavin was in good credit ; sev
eral persons who knew him at that
time, declared that they had endor ed
for him to the amount of the goods in
question, or would have done so if re
qrtefted. In June, 1802. this sale was
made. The vendee (Mr. Gavin) was
then not generally known in New-York,
had no domicil,nor any counting house
there ; but in the autumn of ißot had
bro't goods of a considerable amount
from Europe, and in the spring of 1802
had engaged in an adventure to Spain
to the amount of 7000 dollars.
It appeared that prior to the sale of
this tobacco, the defendents had made
some enquiry refpefting Mr. Gavin ;
the person to whom the enquiries
were addressed, informed Messrs. Irv.
ing and Smith that " he did not know
that Mr. Gavin possessed any property,
but that he (the witaefs) would trust
him for 12 or 1500 dollars. Upon
this information Gavin's note, without
an indorfer, was accepted. In Augult
this note became due, but not being
paid was protetted ; of this the plain
tiff was duly-informed. The defendants
at the fame time dated their expedi
tion of its yet being difeharged. Under
these circumstances they resorted for
advice to a young gentleman, a rela
tion to one of the defendants, who re
commended taking the alignment of a
policy of insurance on goods feat to Ca
diz ; but advised against putting the
note in fait. They pursued this advice,
and apprized the plaintiff of their pro
ceedings. In reply, he did not then
difapproveof their conduct,but requeu
ed as soon as the money was received
it might be remitted to him, or passed
to credit. On the i&h of November
1802,Gavin eloped,which circumstance
the defendants communicated to the
plaintiff. In answer to this letter, he
then firft suggested his intention of con
sidering the defendents as liable for this
debt ; and for the amount of tobacco
thus fold to Gavin the present action
was brought.
Mr. Hoffman, for the defendants,
from the evidence in this case, raised
three questions for the consideration of
the jury. He undertock to (hew—l.
That the defendants had a&ed as faith
ful and prudent agents in the sale of
this tobacco—2. That after the sale,
they had used all due caution and dili
gence in securing the debt—and 3.
That the plaintiff had confirmed the
tranfa&ion by his subsequent acquies
cence in the measures taken by the de
fendants. As to the firft point, it ap
peared from the testimony of the wit
nesses examined, that in the spring of
1802, Mr. Gavin was a person of cre
dit ; that his negociations were to a
considerable amount ; that he brought
to this country property of no small
value ; that he was trusted by several
merchants, and that his notes were ac
tually received and difeounted at Bank.
From the caihier of the Bank of the
United States, we have it in evidence,
that it is a general rule at the Bank al
ways to have two good names to a
note ; yet where 'here is perfect confi
dence in one, a note will fometimes,be
received. That on a new loan how
ever, if the drawer was absolutely in
bad credit, his note would not be dif
eounted whatever number of indorfers
he might have.
It appears then that Mr. Gavin had
credit, at Bank and out of Bank, of
course that his note was to be consider
ed as good for so small a sum as is now
in difputc.
In regard to his residence, this is not
to be considered as the measure of his
credit. Many persons of large fortune,
and established credit from the south
ward, and from Europe, do business in
this place to a large amount without
having either a domicil or a counting
house here. From the evidence befoie
the jury they must be fatisfied that it is
the daily practice of Commission mer
chants to fell to persons on credit, such
as Mr. Gavin, without any fixed resi
dence, and who have not avery general
acquaintance in the mercantile world.
But, has there been any evidence to
shew that the defendants have aded
mala fide or unfaithfully in regard to
the plaintiff. On the contrary, has it
not appeared that they trutled Gavin
on their own account to the amount of
1200 dollars, and that they took his
note for this sum without an indorfer.
And surely there is no rule of law,which
obliges an agent to take greater care Qf
General Hamilton, in reply for the
plaintiff, contended that the defendants
in this tranfaftion had not aded as pru
dent and faithful agents of the plain
tiff. Readmitted they had a right to
fell on credit, but in such case they
ought to be extremely cautious, left
they should involve their principals in
a loss." The rule oflaw thathad been
Rated he assented to, with the addition
of one word. It had been said " that
when a man bona fide takes the fame
care of another's property that he does
of his own, he is not liable in case of
loss." Gen. H. said this was well,
with the addition of the word prudent
before “ man." The firft question in
this cause then was “ did the defend
ants in this business ad as prudent a
gents ?" He contended not.—They fold
this property to a person who was not
a resident in New-York, who had no
domicil, no counting house there ; to
a person who had no general credit,
none at bank who was known but to a
very few merchants. In such a case
was it not plainly the duty of a factor
to demand a good endorser ; would a
ny prudent, any reflecting agent-have
exchanged property to the amount of
1400 dollars for the paper of such a
person as Gavin, without some collate
ral security ? It is true it appears they
made enquiry of one person refpe&ing
•he vendee's credit; but would not a
prudent person have gone further and
enquired of fevetal. For although it
sometimes happens that'one or two per
sons would accommodate an acquain
tance with their names, from perfon^
friendship or confidence, yet this does
not determine the general credit of a
me: rt hant ; and it is by the Rate of a
man's general credit that an agent, in
circumstances like those in question,
should be governed. In my opinion,
therefore, said Gen, H. the defendants
in this indance were raffi, careless and
imprudent ; nor will, the law juftify
them in the sale. From their own cor
respondence we are authorifed to draw
this conclusion, for in one of their let
ters to the plaintiff, they fay “ we had
great hesitation, and some altercation
with Gavin,
But a second and not less material
point, in which the imprudence and
want of due regard to the plaintiff's in
terest on the part of the defendants ap.
the concerns of his principal, than of
his own. If he takes equal care it is
all that law, or reason demands. Be
sides have we not fee'n that the confi
dence reposed in Gavin, originated
with the plaintiff, that he introduced
Gavin to the defendants as one who
had offered a certain price for his to
bacco. If then a loss ensues, is it not
imputable to the plaintiff himfelf?
As to the second point, viz. whether
after the sale due diligence and caution
had been used to secure the debt. The
defendants took every measure which
prudence didared. They go to a pro
fefynal man, who although young,
molt certainly flood high and very de
fervedlyfj in his profedion,they rely on
hisjudgment and not on their own,and
although he might have omitted to take
every precaution that might have oc
curred to a more experienced pradi.
tioner ! yet in all this there is evident
proof of an honest regard to the interest
of their principal.
But supposing the defendants hare
exceeded their authority in the sale ;
supposing them to have erred in the
measures taken to secure this debt ;
Rill as they kept the plaintiff regularly
advised of their proceedings, and as he
never suggested a hint of considering
them as responsible for this money un
til after the elopement of Gavin, he con
sidered the plaintiff as acquiescing in
this measure, and of course as exoner
ating his clients from all responsibility.
The rule of law on this fubjed is clear;"
"when after a principal is regularlyad
vifed of an agent or factor's condud,
and does not disavow the fame, he ad
mits it and takes the responsibility on
himfelf."—The many letters which
passed between the parties after the sale
in question, seems decisive on this point.
Although the sale was made in June,
the protest in August, the elopement of
Gavin in November, it was not until
the 6tli of December, that the plaintiff
pretends to confider the defendants as
liable for this money.
On these three grounds Mr. Hoff
man trusted thejury would find for his
clients.