. . -;vy-yy-:'?:;-'v.- ..f
, Ereribehan tl.4hfc fonndaiipn for the inference that her .ior it might be to iroppft rrohi a Bntii .
of. the hipi- f real dcatinatioa Was ah ehemy porti I ! ; pofr apd to touch 41 SCBhmwSj
m it, Term Rv3f. Park onins, 1 !4 ' BuCicU and . there,: bbtaii titmv 'TCltmee' ; 1
BRITISH LICENCfi
Jlf lhe7(bowm; ewe inTolret prioctpki
Mrhlj iniporunt botli to the community
ari to indiriduiln d t it if beRrri. to
t cate of fint iinKtti in the United
Sute m to tome of its poihtf . it may hot
be uiuccrpttbli to the American Br or
Merchant. Amh a the 6al decuton waa
not made hv a Coart of ihe ;Jaat reaort.
where alone it couM receive the atatnp of
tuthoritj. the EJitor haa procured brief
fiatetner.t of the proceeding beb, ao ai
to by the whole subject before the puhUc;
ihertb inritlnf enquiry aod research.
,TU U'd bhalfa& for the tut
lA Qwner $. OJitm end Crrm tk
prc:t armed Ai . General' Jmitrtnj,
Aeef Jh Sauiaa-'irai Matter end
; .-7 ;
Jit Kh4cr Matilda end fer cargo, ,Tl9tiia
JerktMM.'AIaMttr.
This was a Libel in tho Admiralty,
tctklot: ihe condemnation of the MatiK
(fa ard her .'cargo, at bful price ; and
wis filrd and heard in the District Coart
. tt Wilmington, at May Terra, I8U.7
.The Lbtl charge among other tnings
that th; schooner Matilda, being ves
kI of the United SUtei and belonging
to cttlzens thereof, dd depart from the
prrt of NewberOv fince the llth of
Mtrch last with a 'cargo of ahingtetj
ihen, and bearinc: any fltg except that
of Francei &c. to import into any. of the
port of Antigua Montseral, St. Chris 4
tophera NeVia and .the Virgin .Inlands
from any port of the ,TJnited States
cargo ol stares una lumper, -inre aiocic
tec and.eTef y kind of. prat Isiona what-
aoeTtr (beel, poriti Duuer, tauea, a run
and pickled fish excepted) without mo-
lestanon, on accocni. oi. nosuuues ex-istinff-bettreen
his Majesty and the U.
StatesAltiotwithstanding the said ship
and cargo may be the property of any
cititen or inhabitant of titd.Siates , Ice
rIhstthe master of said ressel ahall
be permitted to receive ' bis freight and
return with h a Tesael and crew to anr
port of the U. States not' blockaded j Captain Sinclair and upon mV cross
with a esrra consisting of rum and mo-1 1 examination said, that at the time of
lasses and of any other goods and torn- the capture, Captain Sinclair was. con-
' A sin mm 1 m .
modifies whatsoever, except sufrar. in- jnnea in uts caom, and that tie, (the wit
d'gbtcotton.wool, coff e andcocoapH Jess) was conhned in the. ward -room
on condition that the namerind'tonrtage I with liberty td orf deck, buttohare
of th vessel, and the tiamfe of the mas
ter, "ialVbe endorsed, on the ttcenie at
the time of the VesselV clearance from
the DOTt of ladinir;liThif license ws
endorsed in the following Words; by thn
Ciaimani Jarris'1 norow acrwus,
master vof -theV. achooher. Matilda, bur
the.n.l 14 3i'95 tons V,n a cargo of
is on board that Sinclair
Land others were owners
'hat Captain Sinclair authorised hi
! act as sailing roaster that Sinclair did was hbt jn; fact the intention of Jerkins
ot Seize or assent to the seiiure"bf the to proceed to; a Briiish ?fJrt--his reat
Matilda; v-' ; J ' destination was .St. Bartholomews, as
. James Johnston, another witness for (declared by the claimants 00 oath. No
'he ribellants, deposed that the General I evidence has been adduced to rr pel this
rmstong arrired at the port of -WH-JI oositive declaration, except the feeble
nington on the 16th of AprN and the presumption arising frnra the mere pos
Matilda on the 19th that Captain Sin session of the licence ; which is cbm
. lair, put him 00 board the Matilda, in pletely answered by the rule that every
he port of Wilmington, to take an in-
ventdrv of the effects and to dispossess
the taqtineers that he, was. 1st Lieu-
ensnt of the ship, and held possessio
01 inc scnooner unaer.me auinay
man is presumed 10 oe mnocenc unui
the Contrary appear. It was also con
tended, that the mutiny of the cruw us
abled them from making lawful capture,
and rendered them obnoxious to o-law
which "aSkeS the punishment of death
to such an offence ; and as the commis
sioned officers were divested . of their
command by force add wrong, thtir as
sent to the capture could not be pre
sumed.; nay the contrary wai expressly
communication with the crew when i ordved
Jerkins came onboardy he (the wftness) 11 r fhc argument b1iincJ6sed, and the
was oracrea oui 01 ,inc war a room on oojeci pi ...voansei naving oeen siaiea 10
the forecastle, by WjlliamXivingstoh, be thaf of obtaining an immediate deci-
tailing 'master, and then . commanderi sioii of Vhis XXourt, .and of takitg the
but was not to communicate to Jerkins case thenceA by appeal to the Circuit
(he state The ship, was then in that oh Court, 'sb a to have a hearing at the
the 1 8th' March, whle -.ttife Captain and I ensuing 'term, theJud proceeded to
scabiUne shincles," corn "and hecessiVy hc crc togethenin the cabin7, the doors deliver his bpinibh. He remarked on
mtV v.m. Vn. r.rlmji: Ma'rrh II wtre shut'dh them "and the? confined II the noveltv and imDortatice of the dues
icaafipg aad com; bound for some Bri- J ibt 1813." v ' .I by toe master's jrnate and others ofjbell tiorWthat it was imwrtanV hot' only as
1 . .7 . . r- -L -. - . - X ' l Anotner license, acreein? m aiirc- ii"! ein uu iknw waall w "c yvyfj 0 8.0, yui
wmr ",u6)ii ,wm:v, . Unefcts wlh ihe last met)tioned. xcept open, neara mar mey naa gotten anotner
haflhi elves permistion, in:eiditiodJhicehSet but did not See itiU V
taihe former, to todch at S'. Bartholo ;CBarles A. LWis, also sworti oh be-
rhcVs pnxht outwardand homeward halfofthelibilIant?,decUresthatatthe
Vvafee to aho from the riritinh Islands, time.the ,Matilda was .brought. toV'the
This is nor: endorsed, but both bear Nq. wenu vsrenstrong was unacr ui uisn
colors he. was; in tne ward room of the
ship whVp Jerkins catheoh" board
nearo livingsion ass; mm ior n papers
saw Jerkins. deliver some papers Ao
Livingston; and upon the. threat of the
latter - to send the schooner Jnlo ppV$
A6i and "are intended, probablyas a tt
of licenses. Aiet'ter from Jarvis and
Brown, written at Newbern March 1 ltb?
1813, addressed 'o Thomas Jerkins at
Wallaces channel, states mat since wri
ting the letter which covers the bills of
Christophers, .Nevis or the Virgin Isfc
iro'i, with an intention on the part of
the oiister'arid owners, cf disposing of
the cargo to the inhabitants (being Bri
dh subjects) of some ofaald Islands.
Thst on .the 3th or,Apil, J5U .!(chc
dtr of cspiUrr) 10 latk 26 deg, amin.
ooah, long. 63dcgJ7 mtn. irestvth
, ...j r?i i-
.lituioi waa sailing unucr a onusa iir
ar.se which authorised the importation
cf sabl cargo from the Ui SilUs into
me Siio.onuin isiaoos
A claim and answer, was put in. by
Thomas Jerkin v-thd master, . and one
third owner. of the schooner and cargo,
sr.d by Moses Jarvis, for himself 'and
his psrtbeV Sylvester Brown, owner
of the other two thirds; all cltirens of
the Unicd Sta'cs.. They state arhong
other things that the schooner and car
f were seit-d about the 5h April,
1813, by the General' Armstrong, on
the high seat, while said schooner was
pmcetding from the port of Ncwbcro,
NCto theItlaridolBanholomews, rrom Newbern, bound for StrBartbolo-1 frdm.andcontinued
pi oe trcsi iiKJics , .inai sac was re
lading the mail brought the news of the j Jerkins seemed confused and said, I
adiournment of Concressj and that the bavf raore-pajrs that you havevnbt
Senate had put.'a death-wound on th-r seen,wand took Ju Dt :his pOcket and
nence and me icuer.aiorcsaia, H '
Cabtain John 'Sinclair a, Witness for
the claimant deposed, that on tbe,l8:h
luarcn. n? was aisposscsseqoi .me com
man'd of the ship by. William Livingston
aQcfotRer officers '.and crew that Ltv-
licensV biU, and the bill to prohibit the
neutral trade, : vas ' also killed by the
same house, sojhat we now are in the
same' situation with respect trJ -com
merce as We srere belore the session
commenced As the non mporution
law is still in firco should you think o
returning with produce you will gdaro mgston, Who was then under arrest for
against your own vernmeht." ; v X. misdemeanor took: the command of the'
MattLu k iri rt-o-niir riMrin ahip the same Dichtrwitnoiiti attthbntv
cuiriv cleared foe. said voyatfe t - that
they, the cUitoarits, had given bond ac
cording to Law that sbe should ndt pro
terd to ao enemy's port ; that she, was
at the time seitnre iri the direct
ecore to S. Bi'rthrlomews j that tluyj
t claimants, had no Intenttpn of pro-.
emog to an 'entmy's port,,. or of. bai
'iaesoy comroercul intercourse with
he te.rn.es of their country thauaid GtnJ Armstrong is inVthe tisual form,
r y . r and of date the 23d, Nov. 181: ,lhc
ship is therein stated to belong to John
to command
mw.AtA lth Mirrh. lsia.-C. : until alter tne' capture-s-ana marine
.The bill of Udinfe'at Newberot;Vrft- wtu or
e.n rr mA Jr-ri acrreea With the car 1 1 consent ',oe. was tne: commanuer and
go before stated, and bears even date part-owner of ;tbe sbip f .he delegated
with the dearince ; but in the bUl of power-to Ereringham to do in thcriub
tadinevtrfe vessel is said to be bound jeet of the"; capture, as he roightahink
for the West-Indies, The list of sea
men Was.regular aod to wn the Regis
j
. ...
The President's commuon ,to the
thilomews which' they were desirous
ef bringing home and which partly ini
iuctd the prosecutiorl of said Voyage f
tthe scYucmer as boarded and ta
ken by the' crew of, the ship and 'the
Rtoittj, Thos, Jerkins, ordered on board
tP the said cfw being in posses
Jnatthat time of no other . papers
from the Matilda, as claimants know of,
the retniUf documents of theves-
ptoper as agentfor the owners, and' the
said, agent has carried; on the proceed
ingsthat he would not. from hiskUow.
ledge of the general character of Li tin
to, oelieve him on oath he appoint
ed Livingston aalLnit master Nvlfeh he
first came on boarcland continued him
Kverinpham and John 3 nciair 2 . and H tuu,luaiw
authotityits given to John Sinclair Cap- ry,' when he.arrested him forjdisobedi-.
ta n, andf David Pearcer Lieutenant of of orders--that hef, put an officer
id ; shin, and. the f officers: and crew on biardi the M ti'da to divest those, of
thereof to iubduand take any BriUsh h-command
w: mnA thmr mtA in-cinrf-V x II wlhout his -pritity or cdnffentr and to
further authorised to detain, seilo and ep possession of tier on accpunt'of the
take all vessels' and effects to homso
ever.belongingi 'which shall. , be "liable
was of vast importance In pri nciplej and
consequences. - : tie glanced at the oitfi
cullies he ftlt jn deciding .jspme. of the
authorities br of lime t6 reflect For
these reasons, : he approached the - case
not Without some, distrust of. hi own
judgment "j but felt' muchrelief fm
;ne assurance mat tne case wouiq junuer-
jcrb an'in vesticration in a siiperibr tribu
raU j ' for this tzsop he .lhodfehlt itvnot
very material how hcv;shbuid decide
H? felt" it his dtity howeveras the case
oao oeemargueQ) ip meet ine qoestioo,
and briefly' to state the reasons which
occurred at the moment to inHbence his
decision. AsTtd tjie objection that the
act 'of trading gs hot corKpIetef-he had
no hesitation in aying tjtat, cording
to the current ot decisions, particularly
in case's orilockafleiwhere the princi
ple' is "the samej theoflence.waa cbm
pleteUf the real destination was an ene
my.port-fc.for this is not vthe case rpfeii
mere wilfoiintcntiSn to jrKeed:tduch
port (which, without some-overt ; acf
would not be puntshable buUhere was
an actual sailing and proceeding on the
voyage, .mercoy carrying inai, inicnuon
into fictt'; dythf intatfcchltbe
vessel was amsiej'KoriJs grpands
uhiayorabletbjthe'pfvsum
was bbbnd to one of theBritisb licensed
j ports I. because r she,Wasin yhe road.as
i direct for one of jthbeilas for the neu-
.irai port, vineuevion mjaci men is
ht$ Was ibe Matildaireally bound to
abritish: pott5.;ithhr:
Judjre felt himself bbundby ihe evidence
Vrr m "r ro:J' according to thdlawof natiouVaod.the
Jkins; ihaLon the 5th dayaft.r Liehts of the U.-States as' a3 power at
to say that she was ) according v to -the
weu icpown fuics in intv voun oi Apmi
raljy i t hat .were ii s uspicion i oTguiit i s
created by the ssessionof documents
It js I expecltd ahat ahe! possessor will
explain a waj suCh
and where t,ticn auspicibn ;is applicable
ta .thechargr in ' Che, libel it H pHma
yacse eviuence pi -inc lacis comai.'icu in
the allegation, and casts the burden p
l3t MM... . m. " . '
vuiurc i wo men TDenea JtrKins s ir .-j w-s .u-v-,.
uainK scarcaea ma pcci- port of the U.' States iri orderthat due
s loond therein two Darxrs. coin-III a: u.au.XX. '
z wu s umun licensee, wnicn
we procured fe J jrv? & Tl morn' frrtm
Aoencio citirens, and were intended
iul niaiiiua i ruin 'iinuui
ship, until - it shoUlcfbe determined to
whom she might of riht appertain
1nc two licences and the letter, vere.
delivere6f to the Collcctor.of the pbrtpf proof on the f party charged. Now. (he
Wilmington, previous to, the ai rival bf .remarked) tfe possession of the licences
theKMatdda :A-:v-y ky- and thletutof vice,JUT)explained by
, upon tms evidence it was argued lor 11 evidence, is prool to my twoq that tne
William Li via rrstoa, a., witness lor ipe uocuaats, inai ine oven act oi sair.i vessel, waarprpsecuungjtne voyage sne
It
Jteu 00 her said voyage to St. Barv
Uamen of the General Armstroog
ere in ... r ' ' 1
the Captain of. said s hJp.be
tocBaed to his cabin 'ind'his au
nt, usurped and they submit Wbe-
Mvrr a r j rw i. i- l2 . j
uu lubug cairuc gwu
W'd 'he afiidi rPlh rl.5mnf-r.p-
A. W JV a Wr WW
. - 5
Tk . . .
--..u.utc was in suosiancc as
:-A license sirmed by H. Elfi-
ti.J?u!nof "of British' leeward
llllfxll at Amigda the 22d
WBS!rJ l8l3 10 te, force from
Thiite lhcTcof to the poth June next.
7 presses ro be. twued' by
mi0rdcr lacoaaI of October
CrJ 2 .IlU Reamed to Daniel Mol-
tT1 ptrmra a vessel being un-
ad n.i i thaq 100 tons bur-
thVlibellants; swore. thatontheSth'A. under 'a Britisn licence was evidence; Kwas permitted to do; by; the licence
oril last:' tKe". Matilda srasfbWucht to Dr. trading.ivnh the enemy accotdinft to is rrue the Amerrcah papers were all rt
V"" w --t w " . ti ' ar.Bi.ft, ak.." . till -v ; - i : .r -" ' -
ibe General-Armstrong S 'that Jerkins itworp
was ordered on board the ship.and hja ,nSwun9 eroy waa anacior.wnicn,
guliuv 'and ' so they roust havebeen to
ootaio o. clearance nomine snouia ne
r . lit., n 1 . ' -i - "4 . " . - . 11 . - v r- . " j f -; -
papers demanded i; upon which: be de- 0rnaimnai'iaw,ine vessel ana cargo son mterred , lrora thence oecausei every
irance, bill of I & icn . w' r wnnitj nnH ;manwnen.rv nis oesign
livered the Itegisteri clearance
. ' . . . 0 v - r
laomg ana list ' ox seamen axurcaaiu
that he, (tbe wltness,) being then. SiuV
ing Master -of the ship; declared he
would send the schooner into port ; : to
I which Jerkins replied, that he had not
seen, aui nis papers,, ana puuin iwo
more out of his pocket, give them to
this witness, which proved to be the en
dorsed license and the letter from' Jar-
vis and Brown to Jerkin as aforesaid ;
.that a few dayi'iftcrV heieardbed-Jer-ktns'atrunk
and foand . therein -the 'un
endorsed Hceme aforcs5id---a:nd that he
commanded the' ship' at the time of said
seizure. ..Upon his cross examination,
he declared, that Captain Sinclair was
conGned to his cabin by some part 6f the
crew, as he understood that it is nOt
com moo' Cor 'the sailing master to have
command of-thc ship, wheatlCaptaih
4 he tioneSt or
Yattelirat reliedf upon as furnishing the II btherwiseFOflId usthe samg precau
rule of decision in casei'of such trading;
it was turtner contenaea,. tiAi tne taw
of Nations, nrohibitincr interccurse and
aeaung yvuoan enemy, is noi aorqgsicu
by the act 'ot Congress , pnvtiei subject
of licences as was decided in Pen nsyK
vania by Judee Peters, in- the' case; of
the Tulip. ryy:
For the claimants it was'argued; tha
here has been, no act committed ; no
trading with the tnemynbr any other
act "vioiaung mc ruici oi general puuitc
law : For at most, the evidence Droves
nothing more than an intemtieit to pro
ceed to anenemy port V and.it Js con
trary1 to every principle of law and jus
tice to punish a man for his imagina
tions. Th- Matilda was inThercad to
SU Bartholomews, and had not. so much)
tton k and: , no man .would furnish, evi
dence against himself in a ray iior at
alhtJtctssary 'fo the cxeCQliort Of his un
lawful desiens.' ;The t Briuslr' truizers
knbw that vessels of thel U) States must
conform to our r municipal regulations
ere iney-arc permuiea 10 oepari. -
to the letter, , it 4eaTSevidence of some
dniawful purppse-rfbr ul thef real, ob
ject .was a lawful trade, it is dilfioult to
assign a rcasoo or iqe aoauionai
tioii, guard'againsty .botiowp fprtrifc
m ent." tThey captain wasaudyap-
priatd of the failure of the license bill
and of the existence of. the non-tmpor-tatlob
acty The object indeed aight
beJJta Jmprjh'Bri ltihr produce from a
Neutral port '-which',' though unlawful,
doei not .undercthc ptcscnt 'charge ;
l It I'M'
so t toward ajrai nst,lh is! gbvefn men t.
Tho lat ter - supposition vefy lell M
cordsWithlhe lirenses.yljy ' ,rf
Upon the question of law, whether
f the- act of Congress of; the 6th July;
last, updn'the subject now under con
sideration, Jt cumuiative on kha pro
hibiclrins of international jfawj or svhe.
ther it operates as a repeal or : abroga-.
tioo of those prohibitions ; the Judge
expressed mdch'fdotibt but yielded
to the opinion Which harj beed. 'kivea
by Judger Peters in the ;case i' or h the.
Tulip, thai the act of Congress is but
.The ; bnly J-emaining point to be
noticed($aid the jj udge) . is j ope of
g;reat importance, and to: tne Aourrv ,
of serious difficulty j ; beCaU?e I enter
tain much doubt on it, apd have not
the aid of bbpkf in forming my opi- t
ttioo i sit is tne, question which prows
out of the miuclny of the cew of the
privateer. l?ro.ni 'what has been said,
lt.wouia seem tnat tne. scnooner acu
her cargo are confiscable.; hut it doe
not necessfariljr follotv ' thsjit . because
the property is forfeitable to the (j
States, the jiOahts shall take the be-'
nefi t of such forfeiture" J: -
' The President's commission was
they authority under which the, cap .
ture was niade . this' com mission ati
thbrliepAnnrithe.C
seieV &c ; , but the evidence is that
the Captain, at the time of capture
,was byAthe-vtolencebf the ctew, put
id; closeoti finetirlent and deprived of
all command and;authprity over the'
ship.v As., .tte.ifjferei. thfc I'.authbHty
was i usurocidlEfAOtners. and the ves-
ael naVigatetf the
captain; all acts done. by the crew dux
nug suwii uaurpauuu must -c pre
sumed tp Jfiaye1)een dotie against his
will j ort atiy. rate, npt with bis as
sent t ther express' prjmp(iedi"v'The
Jibel is led in ihe nameof the U
'tateyfdtlie oSii
cerKand cVewrr theship.! .Had it"
tbeeb' in " thel name of the crew only; -
accoruing 10 ine. t rum ine case, ine
obiectiotftHen' wbulrl Alve bee"n.:that
jybu have depa commis-
Biun, wnicn was ineir autnoruy iq
ierze;1 s And taking: the case I as' it
8tands,lit appears a little awkward for
theU5tates toanctien an act" that
neceSssaril IsnricrVs, from , armthfcr ;
Hich" they aaioVttheif legisla- v
turey sliall be pumsboi Withfdedth;
The ere w ina stateof mtttt made
the captiire : -Mutiny is punished
with death. And iit compe tent fpr"
the. Captain to contracXthjfcltjano!
jod w alledgethai lie niadetbe cabture, .
or that it was made, bys. his hassen' I ,
Kjr snaujie now give a rignt to nim ,
seifbyelaiioand
which was unlawful at theltlmeJ-L!i
Thourttnclhies to'a negatiyeani .
swer ri What: Vests the rfeht in.1 the'
captors I Sure! v the brize act and:
thereat will bb swnjthelgtis ) vest-
ejtrthebwnerqnte'eri
bf thervessel by w;h6ni thcature is ! 1
ed. thaV the evidence' did not support ; .
the alieionahd thereiprc tlimia!
sed the libel i btit did-tibr decree the? -
restoration of .the property ; An tap -
the case "brought up) to tHq Circ uit
Qburt at this place, where It was af i-
gdedTjat considerable lengthj ;at 4the
last "term, before the Chief Tristice
of he U. States, and two pdints Were
rnjei- lstrWas the Matildajbound
to an enemy 5 port t 2d: Did th
conduct , of the trewof'the shi p aflect
sfeni prpceedinjg?ids
that, tt the Matddaas really bound
to a British port, thev buncewas co m
pleteV t Butyi t was contended that
thtrerasnb ;evidcncelof auch fact.
except a. vague mierence to qeucao.
ced I rbmr the mere possession of the
license ; ' for as tor the witnesses it
waslsaid, they were interesteti in the
distribution of prise, and therefore
incpmpeienu 4 noD.ie. oy.i uoo
HeCx 307. )That the . presumption;
sucnas it was, ivor vi iuc nuei
it
u
1
ft
VI
-
"'"''..I-'
y
.1.
a.
yl
t r as ' t
! . . ... -.,'-'--1. U-'-iii
4"
- -
4
S3 V "
4: '
v.
V
as deTiatca lrom ncr course so a uy
jq j"jy' --7 ' '