Francis Hopkinson.

The Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) online

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" eft in the faid prize to the ufe of the common-
*= wealth, and be fubjecledto the penalties of con-
«« tempt," &c. &c. It is evident, therefore, that

E 2 the

C 68 ]

the claimant did not confider himfelf as the captor
of a prize, till after the libel filed by Pringle and
Shee, otherwife he would have taken care to com-
ply with the injunctions of the admiralty law.

As to the do61rines q{ occupancy and remitter^ if
they operated at all it mud have been at the mo-
ment the claimant firfl entered on board this veiTel;
and if fo, why does he not libel for the cargo as
well as the veflel ? But I am of opinion that no force!
can Warp thofe dodrines to fit the prefent cafe.

Judgement in favour of the libellants.

DIXNEUF ri^erfus L A C A Z E.

Libel for wages^

xjl Parole contraft was made at Cadiz, between
captain Sherribeau, mailer of the frhooner Necef-
fity^ and Dixneuf, the libcllant, to this purport —
that if Dixneuf would enter on board, and ferve
as mariner and carpenter, he ftiould have the fame


f 69 ]

wages with the other mariners on board, and llaould
be at hberty to leave the veiTel on her arrival at
Philadelphia, or to return with her to Cadiz, at
his option : that if he ihould not choofe to return
with the veiTel, he fliould be paid mariner's wages
for the time he had ferved ; but if he Ihould en-
gage at Philadelphia to complete the voyage, the
captain would then pay him the fame advance he
had paid the reft of the crew.

After thefchooner arrived at Philadelphia it
feemed as if the libellant had made his election
not to return with the velTel to Cadiz, becaufe the
captain was heard to defire him to continue to
work on board as carpenter, and promifed to
pay him the fame wages the carpenters of the
country received. Some difference arifmg after-
wards between the captain and Dixneuf, the cap-
tain failed without fettling with him for his fervi-
ces. Whereupon Dixneuf now libels againfl La-
caze, one of the owners of the fchooner Necefflty^
for his wages as mariner from Cadiz to Philadel-
phia, and for fcrvices as carpenter in the port of

Judgment, that the libellant fliall have his
wages as a mariner on board the fchooner NcceJTity
from Cadiz to Philadelphia, and that the bill be

E 3 difini (Ted,

C 70 3

difmifled fo far as hath refpea to a demand of
wages for work done as a carpenter in the port of



The resolution.

A claim filed in behalf of the Jhippers of the cargo ;
alfo a claim in behalf of the owners ofthefloip,

1 HE M^ Refoluiion^hdongwig to Brandlight and
Sons, merchants in Amftcrdam, failed from the
Texel on the 9th of January, 1780, bound for the
ifland of St. Euftatius. This voyage was interrupt-
ed by ftrefs of weather, which obliged her to put
anto Lifbon, where flie remained fome months to
refit, but afterwards arrived at St. Euftatius. From
St. Euftatius {lie failed for the ifland of Dominica,
where flie arrived on the ift of 06lober, 1780.
In March, 1 78 1 , ftie failed from Dominica for Am.-
ilerdaro, with a valuable cargo of fugar and coftee,


r 71 ]

fliipped by fundry perfons, certified to be capitU"
lants in the ijland of Dominica ; which cargo was
configned to MelTrs. Brandlight and Sons, of Am-
fterdam, the owners of the veffel. Soon after tht
commencement of her voyage from Dominica, flie
was captured by a Britifli armed vefTel, and taken
as prize into Nevis, where admiral Rodney exa-
mined her papers, and thereupon difmilTed her.
She again proceeded on her voyage, but was after-
wards captured by another Britifli veffel, from
whom {he was re-captured by an American priva-
teer ; from this privateer flie was again taken by a
Britiih fliip, and finally retaken from her by Peter
Miller, the libellant in this caufe, and fent into the
port of Philadelphia. It is not contended but that
in each and every of the captures and re-captures,
ihe remained more than 24 hours in the pofTeiTion
of the conqueror. Being thus found in the hands
of the enemy, and taken from them by force of
arms, the libellants pray that both fliip and cargo
may be condemned as lawful prize and booty of


But it has been contended in behalf of the
claimants — That it appears in teftimony that the
ifland of Dominica did on the 7th of September,
17783 furrender by capitulation to the marquis de

B Old lie ^

r 7^ J

Bouille, general of the French forces in the Wind-
ward Iflands — that by the terms of this capitulati-
on, all the property and eftates in Dominica, with
their produce were fecured to the inhabitants, and
prote6ted from confifcation ; particularly by the
1 7th article, in thefe words — " The merchants of
^' the ifland may receive vefTels to their addrefs
" from all parts of the world (Englifli veiTels ex-
^' cepted) without their being confifcated ; and
^' they may fell their merchandize, and may carry
*^ on their trade, and the port fhall be entirely free
" for them for that purpofe, paying the cuftomary
*^ duties paid in the French iflands." And it is
alledged, that this privilege and proteci:ion was ex-
tended to abfent perfons having property or con-
cerns in the illand, by virtue of the gth article of
the fame capitulation in thefe words-—" The ab-
*^' fent inhabitants, and fuch as are in the fervice
" of his Britannic majedy, fliali be maintained in
" the poireiTicn and enjoyment of their eftates,
*' which fhall be managed for them by their attor-
*' nies." That thefe United States being in ftri61:
alliance with the court of France, are bound by
the terms of every capitulation, convention, or
treaty, which the court of France, or any perfon
or perfons under that authority, ihall make in the
courfe of the war, the war being a common caufe,
and both allies principals in the conducl of it :—


L 73 J

thzt it was aifo in proof, that the king of Eng]aii(3,
by his proclamation, dated in December, 1780,
extended the efFe6ls of the capitulation of DomU
pica, to Dutch velTels for four months, notwith-
flanding the rupture between Great Britain and'
Holland, by the capture of St. Euftatius : and,
that this lliip, under the fan^ion of the faid capi-
tulation which fecured her and her cargo from
capture by the French or Americans, and under
the faid proclamation, v/hich protedled her fram
Britiih capture, failed from Dominica, with the
property of capitulants on board; and that the
paiTport of monfieur DuchilleaUy the French go-
vernor of Dominica, endorfed on the manifefto of
the cargo, ought to protect this property from be-
ing made prize of by the friends and allies of

It has been further mfiiled — That a re-capror
acquires no other right than what the captor had ;
inferring that as the Britifli captor could not have
procured a condemnation (as appears by the acqui-
tal of admiral Rodney) neither can an American
re-captor make this velTel legal prize — that the Bri-
tifli captain (hould be confidered asapirate,and that
the law is, that goods taken by pirates, and again
retaken from them, fliall be reltored to the former
owner — that if it ihould be objedled, that molt of


r 74 ]

the real conilgnees of this cargo are not inhabi-
tants of Dominica, and therefore nor within the
capitulation ; it is anAvered, that article the 9th
extends the operation of this capitulation to abfent
inhabitants, even fiich as are in the fervice of the
king of Great Britain having property in the iiland,
whofe bufuiefs may be tranfa£led by attornics ; and
that if the attorney is an inhabitant, and figned the
capitulation, it is the fame thing in eite6i: as if the
principal had done it. And, iaftly, that although
no exprefs authority can be produced to prove di-
rectly that allies in war are bound by the capitula-
tions, conventions, and treaties of each other, re-
ciprocally ; yet a fLriking analogy may be found
in the cafe of ranfo7}u That it cannot be denied,
but that if a French velTel takes a prize, and ran^
foms her for a liuiited time, the ranfom bill would
protecl: the property from capture and condemna-
tion by the Americans. If, therefore, the act of
an individual captain of a French privateer can
fcreen the property of an enemy from an ally, much
more fliould the folemn capitulation of a French
general with the whole inhabitants of a captured
jlland bind the fame ally.

To this it has been replied ; that the fliip Re-

Joliition and her cargo were found in the polfeiTion

of the enemy, who held the fam e by force as


[ 75 ] -

their property for more tiian 24 hours which
brings the cafe ftricily within the ordinance of
congrefs of February laft^ wliich excludes any
claims of former owners after a polTcffion of 24
hours by the enemy: that w^e have no bufinefs
to enquire by what right the eiicmy became pof-
felfed : it is fiiiiicient for us that we found it
there : that the dodrine refpecling pirates does
not apply, becaufe the Britifli as a fovereign nation
has an undoubted right to w^age war, and to take
prizes, which pirates have not : that if any fiibjecl:
of a fovereign power takes unlav/fully, let him or
his prince anfwer the wrong, the re-oaptors at
war with them being altogether blamelefs, whofe
right to take from an enemy cannot be doubted :
that it appears evidently by the letters and ether
exhibits in this caufe, that this cargo is in iacl
Britifli property, and not the property of the
inhabitants of Dominica ; and although con-
figned to merchants in Amfterdam, the nett pro-
ceeds were to be remitted to merchants in
London, and other parts of the Britilh dominion :
that it is abfurd and untrue to fuppofe that
the benefits of the capitulation were defigned to
extend to London merchants Vvdlo had never been
inhabitants of the iiland of Dominica, and Avho
are and will remain Britifii fubje(5ls, aiding, by their


r /S 3

wealth and influence, in the war> againfl France
and her allies : that the captulation included on-
ly real inhabitants, either prefent on the ifland, oi*
abfent on bufmefs at the time, and placed them in a
Hate of perfect neutrality with refpe6t to the
war ; a character v/hich can by no means be ap-
plied to the real confignees of this cargo : that
if the eiFe£ls of this capitulation were to be thus
extended, France would have obtained a conquefi
which can produce nothing but expence, trouble,
and lofs to her, but will tend to flrengthen and
enrich the enemy ; and that it would be for the
prefent, the interefl of Great Britain to furren-
der all her Weft-India iflands upon the fame

It has been further urged by the counfcl for
the libellants, that allies are not mutually bound by
every ex parte treaty or convention : that con-
fent is neceffary to include one in the engage-
ment made by the other ; as for inftance, in a
truce or cefTation of hoflilities : that France
does not deem herfelf io bound, is evident from
her condu£l: v/ith refpe6l to Bermuda and the Ba-
hama iilands, whofe property congrefs have ex-
empted from capture and condemnation by Ame-
ricans ; yet their velTels are confifcated in the


I n I

French courts of admiralty : and that this ex-
emption, granted by congrefs to Bermudians, runs
finally parallel with the terms granted by the
French general to the people of Dominica, fo far
as allies in war were to be afFe<51:ed by fach trea-

Tpiat the law refpefting ranfonu cannot apply
to the prefent cafe, becaufe, if, after our ally has
made a capture, and difcharged the prize on a
promifed ranfom, we fliould violate the ranfom
bill, we ihould in faft plunder our friend of his
aftually acquired property j and it is for this reafon
that allies are bound by ranfom. bills : that this
cafe coming precifely within the ordinance of con-
grefs refpe6ling 24 hours poifefTion by the enemy,
this court is bound to decree according to that
ordinance, and hath no power to judge how
far its operation may, or may not, under particu-
lar circumftances, affeft the terms of our ali-
ance with France, the true limits of which are on-
ly to be afcertained by the fovereignty of the
ftates, and are not fubmitted to the determination
this court.

That, as to the pafTport fubfcribed by mon-

fieur Bu Challeau^ he did it as a matter of courfe in

o confequence

r 78 ]

confequeiice of the depofitions annexed to tlie
bills of lading, which were taken by the Britiflt
judge of the iiland, and who might probably be in
the intereO: of the parties ; or, at leaft, that it was
done with the official negligence too ufual in palT-
ing cufcom-houfe papers. It was further fuggeft-
ed, that the manifed variance between the bills
of lading, with their depofitions annexed, and the
private letters of advice found on board ; the d'u
vedi fraud mani^eil in fome of thofe letters, and the
myderious complexion of others, are alone fuffi-
cient to juftify a condemnation of this property ;
double papers and fraudulent clearances being le-
gal caufe of conlifcation.

In ihort, that this whole bufinefs appears to be
a mercantile fcheme concerted between Britifh
merchants and Brandlight and Sons, of Amfter-
dam, in conjunftion with the (hippers at Dominica,
to impofe en the French governor, and to derive
an unfair advantage from the liberal terms of the
capitulation : that, if this property is to be deem-
ed neutral^ the true docl:rine is, if a neutral volun-
tarily puts his property on board an enemy's fliip,
he does it at his own riik ; but if an enemy unjuftly
takes neutral property, and the fame is retaken,
the remedy is againfl: the enemy who did the
wrong, and not againfi: the rccaptor who only did


t 79 1

hi3 duty : that it is true, that the paiTpon of go-
vernor Diichalleau^ recommends this veilel to pafs
unmoielied by the friends of France, but docs not
fay file iliall not be talcen from the enemy in cafe
file fnould fall into their hands : that if the inha-
bitants of Dominica, in their prefent fituation, be
confidered either as French or as Briciih fubjecls,
ftill the recapture is good ; if French, then the
property (fuppofmg it to belong to the fiiippcrs)
having been more than twenty four hours in the
pofTeiTion of the enemy, is prize to the recaptor
by the marine ordinances of France and America ;
if Britifli, it belonged to the enemy, and is there-
fore prize. And hiilly, that this capitulation ihould
not be conilrued to extend further than the pro-
te^lion of property upon the ifland, and within its
ports and harbours, but cannot reafonably be ex-
pelled to infure fafety on the high feas in the
Hiidd of a raging war.


This caufe, fo far as it refoeds the car<o o?
the fhip Refolution^ reits principally on one que-
flion, viz. whether the United States by their al-
liance with France, are, or are not to be confide-
red as parties in the capitulation made by the
Marquis De Bouille with the inhabitants of Do-
4 miuica.

r So 1 ^

inlnlca. No authority has been produced, audi
believe that none can be, to ihew that allies are
mutually bound in all cafes. It is manifefl, that it
Is not generally (o underilood ; becaufe it is ufual
in forming treaties of alliance to infcrt fpecial
claufes fpecifying thofe cafes, wherein the pro-
mifes and engagements of the one fliall bind the
other : for it would be a very dangerous doctrine
that fhould bind fovereign powers in engagements
to which they "had neither exprefsly or implicitly
given confent, or that one ally fliould necelTarily
become a party in the conventions which the ge-
nerals and officers of the other may, under particu-
lar ftraits and circumllances, make with the com-
mon enemy, unlefs the ally be mentioned in the
Convention, and the terms thereof be afterwards
acceded to by him. Thus, in the cafe of Domini-
ca, had governor Stuart, when he furrendered the
iiland to the marquis de Bouille expected that the
United States fliould be bound by the terms of
the capitulation, he would have made this one of
the articles, and not entrufted fo important a point
to a fpcculative queftion, how far one ally may
or may not be virtually bound by the engagements
of the other. This, however, he has not done,
either becaufe it would imply an acknowledgment
of the fovereignty of the United States, or becaufe
he deemed the ob]e6ls of the capitulation to be li-

r 8r J

mitcd to property within the iiland. Be this as it
may, the Britifh could not reafonably complain
that the French had violated the articles of the
capitulation lliould the Americans take the goods
of the inhabitants of Dominica found upon the
high feas, becaufe fuch an alTurance made no part
of the ilipulation. " If he who can and ought to
" hare explained himfelf clearly and plainly, has
" not done it, it is the worfe for him ; he cannot
*^ be allowed to introduce fubfequent reftridions
" which he has not exprefTed." Vattel, B. 2.
ch. 17. fee. 174.

But whatever doubts there may be of the right
of Americans to take the property of the people
of Dominica under the prefent circumftances,
there can be none of taking Britifli property,
wherever found, without any danger of impairing
the friendfhip of our good ally. And from a fcru-
tiny of the papers found on board this veflel, there
is ftrong reafon to believe that this cargo, howe-
ver artificially covered, is, in fa£l, Britilh pro-

As to the general do£lrIne refpe£ling allies, the
cafe of Bermudas is, I think, ftrong in point. The
vefTcls of that iiland were by congrefs exempted
from capture by Americans, and yet the French

Vol. III. F made

[ 82 1

made prize of them whenever they could ; noi"
was it ever fuggefted, that they had thereby violat-
ed the faith of the alliance. Had the Britifli ex-
pelled, or France defired, that the United States
ihould be parties in the capitulation of Dominica,
it cannot be doubted, but that this would have been
made one of the terms of that capitulation, or that
France would, e'er this, have fignified her defire
to congrefs, and that congrefs would have inftru£l-
ed the mailers of privateers as to this matter.

Having made no national agreement to fpare
the property of the people of Dominica, when
found on the hisih feas, much lefs are we bound
to refcue it from the hands of an enemy at our rifle
and expence, in order to reftorc it, falvage free,
to their ufe. This would be to put them on a bet*
ter footing than our own merchants, whofe pro*
perty, after 24 hours poiTeffion by the enemy,
would be confifcated to the re-captor, whereas ic
is contended that no confifcation whatever *fliould
pafs on the property of the people of Dominica.

Being fully fatisfied as to this general point, it
renders a minute difplay of the flriking contradic-
tions between the bills of lading and letters of ad-
vice, and other papers found on board this vefTel,
the lefs necelTary. Many of them are manifeftly


C 83 3

fraudulent; and although the property Is carefully
wrapped in neutral covers, the nett proceeds ap-
pear to be finally intended for fubje^ls of Great
Britain, refiding at London or elfewhere.

With refpeft to the king of England's procla»
ftiation, I conceive that it is founded on partial, not
on general grounds. Were it not that this, with-
four or five other Dutch velFels were at this time
to fail from Dominica, freighted with the property
of Britifli merchants, it is more than probable that
this proclamation had never been publiflied.

I adjudge that the cargo of the fhip Refolution
be condemned as lawful prize to the libellants ; and
that the fliip Refolution, with her tackle, apparel
and furniture be reflored to Brandlight and Sons,
merchants of Amflerdam,

N. B. The claimants appealed from this decree ;
and, after long argument, the judges of appeal re-
verfed the decree, fo far as the fame refpe^led the
condemnation of the cargo, which ihey fully ac-
quitted, upon the fliippers paying freight to the
owners of the fliip.

There was afterwards a re-hearing of this
caufe before the court of appeal, on a fuggeflion

F2 of

C 84 1

of new teflimony having been found amongfl fome
papers taken in a fliip (the Erflen) bound from
Oltend to Dominica : but the court adhered to
their judgment ; except only as to fome part of
the cargo, which was condemned on account of
irregularities in the bills of lading, and letters of
advice, refpe6ling thofe particular articles.




CLASSEN, commander of the privateer ihip
Rifing Stm, failed from the Delaware, in company
with the floop Jane, commanded by Samuel
Young, the claimant : the floop being under con-
voy of the fliip. Both velTels belonged to the
fame owners (one pcrfon excepted, w^ho had a
fliare in the floop, but was not concerned in the
fliip.) The {hip was bound on a cruife, as a pri-
vateer, and the floop on a trading voyage. Whilfl


[ 85 1

thcfe veffels were yet in company, they difcovcred
the brig Trijiram Shandy^ a veffel belonging to
the enemy, and got to windward of her. The fhip
then bore down upon, and took the prize ;
but the {loop, without changing her courfe, pro-
ceeded on her voyage. It is alfo in evidence, that
the Hoop was obferved by the crew of the prize,
eight or ten minutes before flie furrendered, at the
diflance of about fix miles. Whereupon, the own-
er, who is fmgly concerned in the floop, has filed a
claim, in the name of Samuel Young, qui tam^ for a
ihare of the prize, as being in fight at the time of
the capture, under the general rule of law.

' Against this claim it has been urged, that the
lloop ought to have no fiiare in this prize, becaufe
it is in teftimony, that flie not only did nothing to-
wards the capture, but, in fa61:, avoided it, not al-
tering her courfe, or manifefling the lead intention
to be confidered as a joint captor ; infilling, that
an intention to pofiefs is requifite to the acquire-
ment of property — that although by the rule of
law, it is not necefiary to enquire how far a vefTel
in fight, did or did not contribute to the capture of
a prize, yet fome attempt, fome inclination, to take,
ought to appear, otherwife the law will not force
property on thofe who voluntarily abandon it; and

F 3 th«

1 8f> ]

the cafe of Rice verfus Taylor was particularly
referred to, and relied upon. (Vide p. 16.)

Arbitrary rules and prefumptions of law arc
eflablidaed in profound wifdom, and are the refult
of much experience. Pafling by the uncertain,
equity of certain cafes, they look qnly to general
juftice. All that is necelTary in the application of
them is to afcertain whether the cafe comes within
the rule or not. If it does, the rule ought not to
be violated, nor fliould any evidence be admitted
to defeat its operation ; becaufe the law, delighting
in certainty, will not fuffer an inveftigation which
can occafion contradictory teilimony, perjury, and
endlefs litigation.

In the cafe of Rice verfus Taylor^ xht jury found
that the claimant's velTel did not, by her prcfence,
contribute to the furrender of the prize ; her fi-
tuation rendering it in faCi: impoffible ; and, there-
fore, the claim was difmifled, the cafe not coming
within the verge of the legal prefuraption. But
no fuch impoflibility appears in the prefent cafe.
Had the enemy been a match for the fliip, or
made an obilinate refiflance, the floop was fufEci-
ently near, and in a capacity to join her force. But
as the prize was not able to maintain a contefl: with
the fhip, it is to be prefumed that the floop's con-

r 87 T ^

tinuing her courfe, was not an abandonment of any
fhare or concern in the prize, but becaufc that flie
faw that her affiflance was altogether unneceffary.

The fuppofed want of an intention to take, is
not fufficient to exclude the claimants from a fhare
of the prize. The claim filed in this caufe is proof
of at lead an intention to poiTefs whatever the law
may award. And although it has been fuggeiled,
that this fuit is in faft brought by one of the own-
ers, in the name of the captain and crew of the
iloop Jane, who are abfent, and had no intention
of making fuch claim, yet the court will not allow
the diflindlion, but confider captain Young and his
mariners as profecuting their fuit by their pro(5lor.

Neither is there any reafon why the circum-
flance of the Hoop's being under the convoy of the
lliip, (liould aifecSt the right of the claimants. The
afliftance which one velTel may give another in
battle is the reafon of the law, and this reafon is

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