Fayetteville Gazette

              favetteville gazette a town and countrt paper prihtid«wj tuesday by alexander martin for john sibley vol i — non acti parte tuesday july 16 1793 justitiam speculamur.j no 4 miscellany pleadings of the council he proceded to deliver his decree upon the plea in tbeju rifdiftion as follows — dithict court of the united states in power driven by its enemies on his ihore appear to have been ads of power and not done in confequence of decrees or orders ot courts of admiralty yet thefe jiir fdic^ions exifted in both the countries above-mentioned for the fatette gazette hermit and for pennfylvania diftrift robert findley jun and others fubjecls of the king of great britain verfus the ihip william and her cargo now in fhe port oi philadelphia i have given this fubjeel every con sideration i am capable of and huve de liberated us on the arguments and au thorities brought forward by the ad vocates on both fides the queiiion with the attention they jufilv inerit but it leems to me that much has been faid not immediately applicable to the only point i have now to determine to v»it whether this courtis vefied with the pow er to enqtire into the legality of the prize and to invefugau the f aft on ivhich all the nafonir.gs are founded ? if this lacl is e iablifhed and the extent of our terri torial limits afcertained fo as to make it cleat that a capture has been made within the territories of the united states there is not a doubt but that a flagrant violation of the rights of neutrality has betn committed and this is followed by many of the confequences mentioned by the advocates for the libellants fo far as they refpeel our national dignity and duty towards a friendly power en deavouring to caufe rertitution or ic compencc to be made nor doe this feem to be denied by the other fide of the queftion but the cmbarraflment ftill exifts who is to enquire into the matter and either give or attempt the red t efs ? no i it the cafe of cape landis in the a merican frigate alliance who was or dered by the court of france to reftore a fliip taken by hin is not in point — for the foflers who appeared as own ers were either fubjes or perfons re fident and domiciliated in franc and tta fhip was failing under a paftport of th^t nation they therefore could not be confidered as enemies and the cap ture not being made from enemies the csfe was not comprehended in the trea ty or the capture authorized by the laws of nations in the cafe falling un dfcr tht notice of the king of england except that of his having the power of peace and war as an appendage to which he might hare exercifed this kind of authority i fhould not hav fuppofeel him vcfted without an aft of the legiflature with the authority he ufed and it is doubted by binkerfhock whether he did right in interferriag at all on the occafion if it confident with treaties and otherwifc right our legiilature can veft the executive in future wirh fimilar powers i fhould fuppofe too that the ibcrty off«lfifliprizes,inaneutral country is not perfect by right and may alfo be confidered by our national jegi/lature as a fubjetf of regulation if any cap tures are made within our limits and the veifels or plunder is brought with in our ports the fale may be forbidden they m»ft then be either abandoned or carried within the jurifdiclion of the captors ; where the proper courts will confider of their legality yet that is a matter not of judicial but of political arrangement and ran ft be teft to tbofe who hsvc the authority to diredt tht l^vrrc'gniy of onr nation is as complete as that of any other « where rnujl old a?e find indulgence it do r.ot meet ivith it in ihe piety and par tiality of children palhy trjjthat virtue renders its poffeff v v o r more amiable than filial ref petf ? what duty can we difcharge which yir'.jsib much real comfort and dcligfct to thofe who are the obje&s of it \ the truly benevolent wi'1 anftver tnrre isnore a parent who has felt tronble and anxiety on account of a child whofe care had fneltered it from the rude blafts of misfortune and in aiilcd into its mind virtuous principles ; jas a claim upon it aftetficns and fer vices which none but the unfeeling or abandoned can refufe ; and he who is unmoved at thediitretfesof a good pa rent or flow to relieve ih;m has little virtue of any kind to confole him : only faid the vefiel " was taken at jea " but if not it ratherappearsthatitwould be more proper fora pifplornatic than judiciary examination the general principle as to the capture is agreed s and is fimilar to that eftabliftied in our treaty with france which ought to hare its proper weight it was icfolved by the whole court of king bench upon conference and deliberation that the spaniards whofe hip had been taken by the enemy and brought into england a friend to both parties had loft the property of the goods forever and had no remedy for them in england and relied princi pally on the books in i r 3 ubi fupra being of fo great authority for by that bookhe that will fare to have reftitution of goods robbed at fea ought by law to prove two things ift that the fove rem of the plaintiff was at the time of taking if amity with the king of en gland ; 2d that he who took the goods was at the time of taking in amity with the fovereign of him whofe goods were taken then was it no depradation or robbery butalawful taking as every enemy might take fromanothcr 4 ins 154 it is true that by the laws and cuf toms of nations the capture if taken in neutral bounds is not a lawful prize ; but i do not fee that this court can get at that encumftance without hoiding plea as to the laiufulnefs of the prize it is the original queftion and notcollaterof all matter which determine jurifditfion the courts of common law in england will not take cognizance of any thing arifing out of the queftion prize fir n t>rize " becaufe the original cauie mud all come into queftion again and yet the admirality had determined tha the hip was no prize this will be a proper fubjec of en quiry ou the part ot our government or in a court of the country of the captor erefybation has eftabliiliedthefecourts and knowing tha if war they are an fwerable to a nation at peace or in ami ty if violation of territory happen in captors care is taken to examine into this circumftance if on this account some fuch reflections were preferred to my rr in'i by an event which alfho f r.icle in itfelf gave me a feeling of de licious melancholy which no former occurrence of my life had produced — returaine from a viflt to one of my neighbors i obferved a perfon fitting fcy the tick of the road whofe appear ance ftrucli me with reverence and a mazemen.t age had furowedhis checks srd robbed his forehead of all but a few whitelocks.which hanging loofely down point-e 3 to an honorable fear over his lefi eyebrow a tattered ree'mental cost and a patched wallet which uv.i no ftores ro bo^lt of called forth all my fyrrpa'hy for a fellow foldiar ; and the ex^ernc cli'rr's and hunger nndtr the preftvire of wh'ch his o«f y fcemed to he faintin j..v h z i vsnr ic *.! t.fif of tv r refpea but as if providence had d ierted the weukeft of her cliildren his e res h :$•.] loft their fight ; and his tre mulous woice murmuring the fad l;m gozge of diftrefs ri\ichej at once the tenderoil ftrings of rny lei'-r the lln r i appearance had hither to rlverud my glent amazement bnt t cor wp.it no longer ; hiy cup of.mife ryfeemed to hi full zn'1 i rejoiced at the idf.i of mv cpnifort to a fellow creature who wanted it fo much — *' mv oo*o!d man&wbath your dfhitfion f«id i ** fuirl u.'v have you feen v child — i allighted from my hcrfe — " / frny r->i inform me have you 1:0 oks to conduriyou to a bofftitable rovfc or isips t'e tear vf wifery from your cheek " no e:ie nr.fwered he railing his fnow v'lilte head the tore in which he ut tered thefe la'r words feemej to be a complaint againft the jnflicj and hu manity of the world " al:3s ! 8ir r.onlinnt he " my four children all all have dejert ■ dvie ; my poverty ', ny n%c and my hlindnefi have driven them aivav — but i fcryive them — but — my daughter — my daughter ," repeated he with afigh which fecmei to burft fnii:e of the fineft veifels of ills heart — " foe is my child my friend fhe nuhem i leaq regarded when the fun jhine of fortune beamed upon vte ; and new vjhcn i am borne dewn by a might of niife ry fhe is the only one tuho will give me cowftrt " when did fhe leaveyou ?" " ef:erday,fr,r the frq time 1 « yo have nstfarely been unhappy from your youth — you ccuid have arrived at to advanced an age if forrow had been your conftant companion the poor man hghed and p;ave me his hiiory in a few words to he continued it is difficult fora neutral nation with the beft difpoiition fo to conduft itfelf as not to difpleafe one or the other of the belligerent parties heated with the rage of war and jealous of even com mon a&s of juftice or friendship on its pair neither is it eafy for the nations at war to retrain their fubje#s from a'fls c.f violence even in the territories of their friends the leaft under con trol are thole whofs objects is not ho norable conflict or patriotic exertios thefe ar actuated by a fpiritof lucre wheih not o\,\f incites to plunder the bafe and iawlefs freebooters but tarnifii es even rvfoifm by feducing into un juilrfiable feftions thebraveft men it would be for the interell of nations and the happinefs ct mankind if by univer fal confent the quarrels of nations were prevented from bsing turned to the pur pofes of private advantage but the fwords of thofe who fights for gains will not in our days be beaten in to plough fhcares we mull take nations and men as we find them and confideras lawful what thofe at war authorize fo far as it ref pe«3s the parties engaged after all it depends much on the interefts the conveniences or the good temper of go vernment whether a neutral ft all or fhall not bsengaged in war a prudent and jufl conduct on the neutral parti cularly is the fiireft preventative : but how to evince this is a matter of con fideration with thofe to whom the go vernmentis delegated the fimpleft mode of evincing our impartial defpo fition is to confine ourfclves to the cuf tom ofother nations in our predicament an over anxious zeal to avoid contefts may other wife lead us into error and while we are endeavouring to avoid one rock we may fplit on another mutual toleration mud be exercifed for thofe that are at war and thofe who are not have their f hare of difficul ties on this fubjeft under this view of the matter before me i have given a patient hearing to both fides and have particularly attend ed to the arguments by which a jurif di&ion has been endeavoured to be e ftablifhed in this court i muft certain ly be allowed by the advocates for the libellants that they have not been able to fhew any direct authority upon the ; point for the two cafes of the doke of tufcany feizing the ve.t-1 commit ting the outrage near the port of leg rmn and that of the king of england ordering reiiiution of the effects taken out of the houfes of the inhabitants andbclonghg to a fhip of a friendly therefore whatever other fovereigns can do we hare in our power butbe caufe at this time the authority fuppo fed neceflar on thisoccafion i not as it is alledgcd to be found in ths execu tive branch ; i dc net fes thit^thc ju diciary ought to exercife it as a confe quence refulting from political conveni ence or the neceffity of the particular cafe this i fear would be a novelty dictated by our zeal and might give caufe of offence to one while we are aiming at juftice to ourfelves or gratifi cation to the other i hedtate not to ufe any plain authority i know this court to poftcfs let the confequence be what it miy but this is a queftion too important in its effc&s to be a&ed on thcfureft ground i agree here as i do in many of their other pofitions with the advocates for the libellants when they fay that courts of admiralty juris diction are jefs liable to objedhon as thefe courts are regulated by the laws and cuftoras of all nations and not liable to the capture is illegal it is fo adjudged ; and the party taking is liable to da mages whether fuch damages hall exceed the amount of the fecurity given by commanders of private fhips of war whether one nation is anfwerable to a nother for injuries done by its fubje&s to others contrary to or whhoat its or ders is a matter in which there are diffe rences of opinion amongft civiltans and which it is uneceflary for me now to in vettigate itisdoubtlefscontraryto the inftrufti ons of the french government that a ny of the fhips commiffioned by them a£fc in a hoftile manner in afriendly and allied territory it is to beexpecled by one power from another that her courts and her adminiftration will 3o juftice to the rights of fovereignty and neutrality it will be the more to be lamented if a political bias or entangled in political considerations this ftiould induce the greater caution in their determina tions i have not feenany proofs that : " the iwwsandcufioms of all nations war rant the interference of this court if they do not no authority can be deriv ed from our own laws if they were not filent on thefubjedt intheetifting ar rangement of our goverment we did not calculate on our relative ihuation as to contefts between other nations if for this rcafon no immediate remedy is at hand who can juftly cenfure the exe cutive when he has given decided evi dence of his impartial and juft inclina tion who can with reafon blame the judiciary j if they will not aflurne a pow er not conceived to be vefted in them ? not the government of the country whofe fubje&s are the libellants to whom i with every degreeof jufticemay be done theprinciples eftablifhedin the decisions of their own courts and the opinions of their moft celebrated lawyers in the eonteft with the king of pruflia iathe cafe of theshefia loau,inaq[raat degree reach the point 1 a to judiciary authori ty in a neutral nation in palache's cafe i am aware that it friend and ally hould difappoint this expedition — but ftiould this be ihc cafe it is not for me to fay what pro ceeding fhouldbe had i have fubjoin ed to this decree from the ** expoftthn of the motives c from the duke of newcaftle the britifh minifter's letter to mr mirchell the minifter of pruffia and from the report and opinion of sir george lee do&or paul sir dudley rider and mr murray the late lord mansfield on the fubjetfs i have men tioned which are to be found in ma gen's 463 482 437 391 496 505 other authorities from britifh and other writers might be added by which it appears that when two powers h?ve any difference between them the affair muft be treated by negotiation and not through the inftrumentality of their courts ofjuftiee that affairs of prizes are only cogni zable in the court of the power making the capture ; thefe courts being gener ally ftyled courts of adniirality ; and that it never was attempted before th fubjetf of thatcontroverfy happened to erect in a neutral ftate couits for the trial of prizes taken by belligerent pow eis even where neutrals were concern l a!v int el li g ence interesting trial of the ship william and nt cargo mentioned in a former paper to bs captur ed hy a french privateer ani libelled ly her former britifo owners pr i ladelp h i a f n friday tfc e 9th jvki 6 v inft came on be fore ion jvj,;-e peters the caufeof the i^^iantsapa'jrft the fhfp wflliair of gla^ovi and on friday the zifl the libei pc.;i zr,d rephcation being firft re capitulated by the judge us well use be