Newspaper Page Text
Vel VII.
■ ©anett <oajette
m EDITED and published
■vs. F. GLiANDISON.
(ON THE BAY)
fier annum , payable in advance.
|^ st ’ j" o '\ E^wircHciuFi'^
from the oeiima.v.
look me in the face;
serious —no grimace!
m ark me, now I task thee,
f tMrerquickly, what I ask thee,
I ijKfasti look me in the face;
I vixen—no grimace!
I art thou not; ’tis true
I gk thou hast of lovely blue;
|M;and cheeks, the rose defying,
lIBm, snow in whiteness vying.
fdSra thou hast; —ah, sure ’tis true;
||w n g eyes of azure hue!
I jßhou lovely,—yet, I ween,
art, but not a queen;
v the queen of all that’s charming;
all hearts alarming.
and bright—but still I ween,
and fair—but not a queen!
t turn me here and there,
of lovely maids appear;
of maids, in beauty blooming,
, cßns, as fair as thine, assuming:
I iHes of maidens here and there,
; sHle as sweet, and look as fair!
jtßhast thou imperial sway—
■By willing siave, obey!
| Biy imperial, now to teaze me,
’ Br to soothe, and now to please me,
f B and death attend thy sway:
B tby willing slave obey!
Bres of maidens!—what a train!
: Bresand scores!—yet all were vain,
k>ulri ev’n thousands strive to chase thee
Bm the throne where love doth place thee:
Bis of thousands!—what a train!
• .1 their fondest arts are vain!
|Bk me, charmer in the face;
■tie vixen, no grimace!
Bl me, why for thee I’m sighing,
Bee alone, and others flying?
charmer, no gnmace;
Beak, and look me in the face!
Wig the cause I’ve vainly scan’d,
fliy to thee alone I bend!
jB-tur’d thus, nor know the reason,
still to am’rous treason!
Br enchantress! fore me stand:
Beak—and show thy magic wand!
B From the Nantucket Enquirer.
BTlie following is handed to us as original.
>Bs no mean imitation oflhe- great Scottish
IBl; and well deserves “a local habitation
H a liame.”]
Bd mornin’ frien*, ye’re early creepin’,
B’ heira erect about ye peepin’
Bd steady gait ye always keep in,
| Aye sure an’slaw;
pßoubt the time ye tak’ to sleep in
t Isuncosma’.
Sir crawlin’ pits me aye in mind
■turtles o’ the human kind;
Bw mony crawlers do we And
rJt ’Mang sons o’ men,
.B’ thoughts unto the earth inclined
ij|g| Until the end?
Ikd live a bunder years, they say,
B* mony a weary mile ye gae,
:B’ mony a hunder eggs ye lay,
U Ye queer auld beast—
Biilk gies the snake, your mortal fae,
S Fu’ mony a feast.
B! now ye’ve shut yoursel’ up tight—
B think ye're in an awsome plight,
B seein’ sic an unco sight
|jl As my queer lace;
Bng on your gate—l’m na the wight
‘M Wad harm your race!
sß*lins> I might, for fun or fame,
y 1 carve upo’ your hard auld wariie,
Be twa initials o’ my name;
B, An’ whan I met ye,
B’dk done, nae; ither right I’d claim,
g Than down to set ye.
B t are ye weel! I now maun leave ye;
B e ? uiy absence will na grieve ye;
■’jingling Scotch I’ll nae mair deave ye,
|| An’ ithers too;
B ancefor a’ 1 freely give ye
| A iang Adieu!
i A YARD OF FLANNEL.
■Ae following lines were found in a bale of
,|i Flannel lately imported from England:
■tat, when rheumatic, 1 complain,
■ives sweet oblivion to my pain,
makes me feel half young again—
A yard of Flannel.’
■hat, when my tooth begins to ache.
Bind"keeps my anxious eye awake,
■ids me refreshing sleep to take?—
A yard of Flannel.
■hat, when my ear is chill’d with colds,
Bnd her accustom’d sounds withholds,
■ kindly lends her fleecy folds?—
A yard of Flannel.
■hat, when the throat is stiff and sore,
r oes respiration’s reign restore.
Bnd save from quinsy’s threat’ning power!
A yard of Flannel.’
lie you desire to find a friend,
here warmth and softness gently blend?
I hen I would beg to recommend
A yard of Flannel.
DARIEN. Wmk GAZETTE.
ARGUMENT
Submitted to the Commissioners under
the St. Perersburg Convention.
The claimants under the Convention con
cluded at St. Petersburg between the Uni
ted States and Great Britain, under the me
diation ot Russia, have demanded of the com
mission instituted by that Convention, for
the purpose of ascertaining and delermining
the amount of indemnification which might
be due to them undpr the decision of Ins
Imperial Majesty, that interest upon the va
lue ot their slaves, and other property, car
ried away by Great Britain, in contravention
of the treaty of Ghent, should be computed
from the date of the exchange of the ratifi
cation of the said treaty, and should be
Awarded to them, in addition to the said va
lue, as a part of the just indemnification they
are entitled to claim under the said decision.
1 have been required bysome of these claim
ants to prepare an argument, to be furnish
ed to the said commission, in support of tins
their demand. This argument will be found
in the subsequent columns, and is, very res
pectfully, submitted to the consideration of
that Board.
In tunes now long since passed, it was se
riously questioned whether interest ought
to be allowed in any case. The ignorance
and superstition of the monkish days, sought!
to sustain the objections to its allowance
under any circumstances, by the particular i
regulations of the Jewish law-giver, pre- i
scribed for the government of his own pe-i
cuhar people, under special circumstances i
only', and by idle conceits derived from the I
barren nature of money itself. It has been
very long, however, since the errors of these ;
dark ages have been dispelled by the lights ;
of more extended science, and have yielded ,
to the Inore just opinions inculcated by libe
ral policy, and the convenience of expanding;
commerce. No well informed jurist or in- i
telligent statesman, for more than two cen- j
turies past, has entertained the slightest j
doubt upon this subject; and the civilized;
world is as much indebted to the wisdom of;
Great Brttain for her powerful and effectual
aid in overturning these mere superstitious
conceits, as for any other act recorded in her
history. Her colonists brought with them
hither the just opinions which had been
there inculcated by the wise and liberal po
licy of the mother country— aud in no part
of the present United States have these doc
trines of bigotry and ignorance ever received
any countenance even for a single moment.
Before an enlightened commission, compos
ed entirely of British subjects and American
citizens, it cannot, therefore, be necessary
at this day to argue this question seriously;
but it may at once be assumed as a “ datum ,”
that interest is to be allowed in all cases
where the payment of money is withheld or
omitted, unless where .special circumstances
exist creating an exception to this general
rule.
This broad principle has been asserted
and applied in every court of each of these
two nations, in innumerable cases existing
between individual suitors; and both recog
nizing the truth of the position which con
strains states to act as justly towards indi
viduals us they would compel individuals to
act towards each other, under similar cir
cumstances, have never failed to award in
terest to their respective creditors, except
where special and particular reasons existed
rendering the application of this rule inequi
table. Examples illustrating this truth
abound—a few of them only, however, need
be cited.
By the Roman law, which has so long been
considered as a code “ rationis scripts” that
its precepts are referred to by the whole ci
vilized world as the surest evidence of truth,
interest was always given where money was
due. Its language was, “Whoever owes
“money, whether on the score ofloan, or for
“other causes, owes for all manner of dama
ges, if he does not pay it, only the interest
“that is settled by law.—Domat. vol. I, book
111, tit. V. By this law, interest was allowed
“vicemfructum sustinere .” In all cases, there
fore, where fruits or profits would be allow
ed, together with the subject producing
them, if money be given as the compensa
tion or equivalent for this subject, interest
followed of course, “t ncem fructum sustinere.”
Now, fruits or profits were awarded in every
case of wrongful detainer. “ Cerum eat ma
“hefidei possessors, omnes fructus solere, cum
ispa repnestare,” was the rule often announc
ed by Justinian. Vide Lib. 22, C. de rei
vind.; Lib. 17, Cod.—Lib. 3, C. de condict:
ex leg. And all these principles would re
ceive as much respect in Westminster or
Washington, as in Constantinople itself. In
proof of which, I beg leave to refer the board
to the case of Craven vs. Tickell, 1 Vez. jr.
62, in which that excellent judge, lord Thur
low, says, “It /is the constant practice at
Guildhall, (I do not “speak from my own ex
perience, but from conversations i have had
“with the Judges on the subject,) either by
“the contract, or in damages, to give inter
est upon every debt detained;” and, in that
very case, his Lordship conformed his de
cree to this constant practice.
The joint commission instituted under the
6th article of the treaty between Great Bri/
tain and the United States, concluded at Lon
don, on the 19th day of November, 1794, in
variably awarded interest upon all the claims
preferred to that board under the provisions
of that article; and when the difficulties
which arose, in the execution of this article,
induced the high contracting parties to can
cel and annul it, by the convention conclud
ed at London, on the Bth of January, 1802,
and Great Britain, in consideration of the
compensation made by the United States,
took upon herself to distribute this equiva
lent amongst the persons described in the
saifl article, the new commission, created by
herself for this purpose, in like manner a
warded interest upon all the claims allowed
by that board.
The joint commission instituted under the
DARIEN, (GEORGIA,) -equal anti <t£]Cact jjugtice* TUESDAY, FEBRUARY 8, 1825.
7th article of the same treaty of 1794, invaria
bly awarded interest upon ail the claims al
lowed by that Board, which interest was paid
by Great Britain to the citizens of the Uni
ted States, without the slightest hesitation or
delay.
The joint commission, instituted under the
21st article of the treaty between Spain and
the United States, concluded at San Lorenzo
el Real, on the 27th of October, 1795, award
ed interest in like manner as had been clone
in all the preceding cases, and interest was
allowed on all the claims provided for by the
convention between France.and the United
States, concluded at Paris on the 30th of
April, 1803.
Suchf being the general rule, then, and
such its application to nations, and fixed and
established by both the high contracting par
ties represented in this Board, as well in
their domestic triounals as in their treaties
with each other and with foreign states, it
will be only necessary to inquire, whether
the payment of money has been o.nitted or
withheld; and, if it has, whether there exist
any particular circumstances in this case to
make it an exception out of the operation of
the general rule.
As to the first point, I would beg leave to
premise, that although the allowance of in
terest, “eo nomine ,” is rarely made, except
! where debt exists, yet, in fact, interest is re
sorted to as the best standard by which to
measure (he extent of just indemnification,
■ in all cases where money is the equivalent to
be given, as the compensation for property
which ought to have been restored. Wher
ever the payment of money is the fir=t and
direct duty to be performed, then interest,
“eo nomine,” follows as the necessary conse
quence of the non-performance of this duty,
i The reason is, because, by the common con
sent of the civilized world, interest has been
; established as the safest and most conveni
i ent rule, by which to ascertain the sum re
| quisite to indemnify the sufferer, for not re
! oeivingthe benefit the performance of this
duty of paying principal would have bestow
ed upon him. If, however, the first and di
rect duty to be perlormed is not the pay
ment of money, but the performance of some
collateral act, e.g. the restitution of proper
ty other than money, then, in lieu of interest,
damages are awarded. These damages, to
gether with the property itself to be restor
ed, constitute the j-ist indemnification ofthe
sufferer soy the loss he has sustained, by rea
son ofthe non-performance of this dun.—
The measure ot these damages is the proba
ble fruits, or reasonable profits th be derived
from the subject detained, during the period
the duty of restoring it was not performed.
But if the required duty of restitution cannot
be performed, by reason of the loss or des
truction of the thing which ought to be res
tored, or for any other cause, then the value
of this thing is estimated in money, and this
equivalent is regarded as the thing itself.—
• Being thus reduced to the standard of mo
ney, interest, upon this equivalent, is insti
tuted, in lieu of the fruits of the subject, and
flows, as in all other cases of money with
held, as the necessary consequence of the
non-performance of the duty of restitution
It is true that, in the case last stated, interest
is rarely given, “eo nomine ,” in the British
courts; but it is always included in the esti
mate, according to which the quantum of in
demnity is to be fixed. Interest is, therefore,
allowed, in fact, although not by name. The
very familiar cases of detinue and trover need
not be referred to as examples of this, but
will readily present themselves to the board
as perfect illustrations of whit is here stated.
The general doctrine, then, is this, he
who withholds what he ought to restore,
does a wrong, for which he is bound to in
demnify the sufferer. The proper measure
of this indemnity is “ res ipsa,” which is with
held, together with its natural fruits, or rea
sonable profits, accruing during the period
it is so withheld. But, as the restitution of
the thing itself cannot always be had, justice,
which cannot always obtain precisely what it
might rightfully exact, finds its compensa
tion in money, and regards this equivalent
“ut res ipsa.” For reasons very obvious, in
terest has been fixed, by common consent,
as the best standard by which to ascertain
the reasonable profits of money. Whenever,
therefore, money is the subject which ought
to be restored, (“whether as the “ res ipsa,”
or its equivalent,) there certain and fixed in
terest is given, instead of uncertain and es
tablished fruits or profits. Hence, interest
is allowed, either by name, or in fact, in all
cases where the restitution of property is the
duty that ought to have been performed,
and the payment of money is instituted as the
compensation for the thing withheld. There
are many cases in which just indemnification
requires even more than interest to be add
ed to the equivalent value, but not one in
which justice and equity are satisfied by the
allowance of less. This subject the board
will find very ably treated in Domat. Vol. 1,
Book 3, Title 5 and 6, to which, therefore,
reference is respectfully made, as well as to
2 Fonblanque on Equity, V01.,2, pages 419,
and seq.
Let this docrine be now applied to the
case before me. By the first article of the
Treaty of Ghent, concluded oij the 24th of
December, 1814, it was agreed, between the
high contracting parties in that instrument,
that any slaves, or other private property,
which had been taken by either party from
the other, during the war, or which might be
takenafter the signingthe Treaty, and which
should remain, at the exchange ofthe ratifi
cations, in the territories, places, or posses
sions, stipulated to be restored, should not
be carried away. (See the article.) After
the exchange of the ratifications of this trea
ty, the United Slates required of Great Bri
tain the restitution of the slaves, and other
private properly above described, in pursu
ance of the provisions of this article. Great
Britain, admitting her possession of many of j
the subjects so described, nevertheless re- j
fused to restore them, and did carry them j
j *way. To justify this supposed violation of
; the treaty, then so recently concluded, G.
Britain insisted, that the article referred to
imposed upon her no other duty, than not to
carry away any slaves, or other private pro
perty, which had been originally captured
in any place agreed by that article to be
restored, and which should remain therein
at the period of the exchange otthe ratifica
tions of the treaty. The United States con
tended, however, that the article referred
to made it the duty of Great Britain to res
tore all such property as had been taken by
her, during the war, any where within the
United States, and winch remained in iier
possession any where within their territory, at
the period therein stated. The high con
tracting parties, thus differing as to the true
intent and meaning of this treaty, in pursu
ance of one of its provisions, agreed to reler
this difference to the friendly arbitration of
the Emperor of all the Kussias; and tins sove
reign, after due consideration, rendered a
decision in favor of that construction which
had been insisted upon by the United States.
Before 1 proceed further with this state
ment of facts, lei me beg the attention of the
Board to certain propositions of law, winch
obviously result from tne statement already
made. Great Britain never denied, but al
ways fiankly conceded, that she was bound,
by the treaty of Ghent, not to carry awaj
any slaves or other private property, wlncu
at the date ofthe exchange of its ratifications,
were actuJly remaining in the places where
they had teen taken, and which places were
to be restored. Notwithstanding this ad
mitted obligation upon * her, many slaves
coining within the narrow limits of her own
description, were yet carried away, as the
evidence bofore the board, in many ofthe
cases, most conclusively establishes. As to
all such cases, then, she stands in the predic
ament of the “male fidei possessor,” as to
whom, “cerium est omnes fructus solere cum
ipsa re prx “stare.” The only difference
which existed between the high contracting
parties, applied to slaves and other private
property, which, at the date of the exchange
of ratifications, were not actually in the pla
ces where they were originally aken, but
elsewhere within the United States, and
were subsequently carried away from such
otherjplace; which of the parties had miscon
strued the treaty, in this particular, was the
only question referred to their common ar
bitrator. His award having settled this point,
the duty of restitution as to these slaves also,
would have beep thereby fixed upon Great
Britain, as firmly and strongly, as her own
concession had shewn it to be in relation to
the others; and, the possession, “ mala fide,”
would have drawn down upon her the same
certain consequence, “ omnes fructus “ solere,
cum ipsa re pvaxstare,” as in the other, but
for the fact I shall hereafter notice. For,
the decision of the common arbitrator, that
the interpretation put upon the treaty by
Great Britain, was eroneous, established, as
incontestibly, that she ought not to have in
sisted upon it, as her own admission could
have done, and, in consequence of this decis
ion, she must be considered as a “ mala fide
posessor,” ab initio , i. e. from the exchange of
the ratifications ofthe treaty. But 1 will re
sume the narative.
Reasons, into the nature or propriety of
which it is not necessary now to enquire, in
duced Great britain to object to the specific
execution of the contract she had entered
into with the United States at Client, and
which bound her to tfie restitution, “ ipsdmm
rerum,” the slaves themselves. These rea
sons receiving their due consideration from
the latter power, the specific execution of
this contract was waived by their commdft
consent; and the duty of restitution being
thus avoided, an equivalent in money was
agreed to be paid and received, as the com
pensation for the slaves themselves. This
compensation, however, was not all that
was to be received by the citizens of the U.
States. By the award of the Emperor, they
were to have a just indemnification for their
losses occasioned by the contravention of the
treaty of Ghent; and, to ascertain and deter
mine the amount of this just indemnification,
the convention of St. Petersburg was enter
ed intoon the 30th of June, (July 12,) 1822,
by which convention this Commission was
created for that purpose.
If we now ask, by what standard the am
ount of this indemnification is to be ascertain
ed, the answer will be found in the general
rule before laid down, and which 1 now ap
ply, where from any cause the duty of resti
tution connot be performed, then the value
of the thing which ought to be restored
must be estimated in money, and, being once
reduced to this standard, this value becomes
a debt, payable when the original right of
restitution accrued, and interest on this prin
cipal withheld, flows as a consequence as ne
cessary in this as in any other case of proper
debt.
Gr itius, while speaking of this subject of
compensation, well observes, “ Car Injustice
expletive ou rigoureuse, Urates les fois ne peat
obtenir precisement ce qu ’ on adroit d’ exiger,
cherche Vequivalent, qui, selon Vestimation mo
rale, est regarde comme la chose meme.” Gro
itus, Droit de la Guerre, Lib. llCap. VII. § /.
Now, if the equivalent is to be regarded,
‘*comme la chose meme,” fut ipsa resJ then it
is obvious, that the restitution of this, ten
years after one had a right to exact it, would
be no indemnity to the sufferer who had so
long been deprived of its use. To give this
indemnity, all its intermediate fruits or pro
fits, must accompany th thing itself, accor
ding to Justinian’s rule; and as the fruit or
profit of money is interest, to give the just
indemnification required by this convention,
interest, at least, must be added to the com
pensation or equivalent money.
If this were not so, this treaty, which was
certainly designed by both the high contrac
ting parties to do equal justice to all for
; whom it was intended to provide, would
! work most partial effects, Those to whom
i the British officers restored their slaves, in
pui-suance of its requisitions, (:.s was the
case in a lew instances) have enjoyed under
it, the profits of their labor, ortiie oenefit of
their hires, or the interest ol their price, for
ten years past, while others, now admitted
on al! sides to have been equally entitled to
similar restitution, have, during all this long
period, not only been deprived of the use ol
t heir property, but now their demands for
just indemnification against this loss, are said
to be limited by its barren value at the time
of tlie wrong done. The wrongdoer who
by force possesses himself, or by force de*
tains what he ought not to detain, cannot,
surely, be at liberty to recoinpence the law
ful owner, for the injury thus inflicted upon
him, by the payment of a less sum than the
“bonafide” purchaser would be bound to sa
tisfy. The latter, however, must pay, not
only the agreed value but interest thereon
from the time the payment ought to hare
been made: but, according to the doctrine I
am now combatting, Great Britain, the wil
f til violator of her compact, in detaining what
she had stipulated to restore, is to be held
responsible for the mere value only, without
profit, interest, or additon of any kind.—
This cannot be right, and has never been so
held, except where posilive law forbid the
application of the general rule of justice
and equity, to which I have referred ohove.
Whether it does so here or not, will be ex
amined when I come to discuss the next pro*
position. At present I think I have clearly
shown, that Great Britain, when she refused
to restore the slaves in her po-session, with*
in the United States, at the date of the ex
change of the ratifications ofthe treaty of
Ghent, and which had been originally taken
therein, contravened her contract, for ihe
observance of which she had pledged her
faith; that, by this contract she was bound
for the restitution of these very slaves them*
selves, not being restored, but carried away
in contravention of that contract, fixed upon
her the character of a “mala fide possessor,”
who is always bound to render its fruits, to
gether with the thing itself lie ought to
have restored; that that the reluctance of
Great Britain to perform this clear duty of
reparation and indemnity, having induced
the United States to accept of a money com
pensation or equivalent in lieu of the slaves
themselves, this equivalent money compen
sation w'as thereby substituted in the place,
and must be considered as the slaves ihem
selves; and as the restitution of the slaves
without their fruits, during the period of
wrongful detention, would not have been a
just indemnification, so the payment ofthe
equivalent compensation without its fruits,
*. e. interest, cannot satisfy the just demands
ol the citizens of the United States, under
the award of the Emperor ofall the Russias*
whether this money compensetion be des*
scribed as a debt, requiring the allowance of
interest, “eo nomine,” or as the equivalent for
property which ought to have been restored,
is of no consequence. Interest upon this
equivalent must be given “ vice fructus.” in
order to mane a just‘indemnity. So that ei
ther way we arrive at the same conclusion;
and interest, either by name or in fact, <s al
ways required by the immutable principles
of justice and equity, which, are, bv the con
ventionofSt. Pesersburg, prescribed as the
guides of this Board.
Do any particular circumstances exist to
render improper the application of these
general grinciples of justice and equity to
this case? This is the next question to be
examined.
The mode of proceeding adopted by the
Board, not furnishing any means by which J
can become informed of the nature of the
objections which, possibly, may be urged to
the allowance of what I contend is right, I
can only conjecture what these objections
may be, if they exist at all. In making such
conjectures, I am well aware of the unneces
sary i rouble to which I may expose the mem
bers ("this Board, by inviting their alien
to the refutation of the objects which, very
possibly, neither have or will occur. lam
not without apprehension, also that i may
possibly omit to notice some, to which
weight may be attached by others, but that I
may not regard as of sufficient importance
to enquire an answer. I shall endeavor, as
far as 1 can, to avoid both these difficulties,
but, should I fail in this attempt, I hope 1 may
confidently rely on the candor of the mem
bers of this Board, to find, in the circumstan*
ces I have stated, a sufficient apology for my
unintended error.
1 take it for granted that any special
cumstances which may <be supposed to ex
ist, in this case, to render improper the ap
plication to it of the rules 1 have above stated
must be found, either in the particular pro
visions ofthe convention of Saint Petersburg
or in t he character of the pai ties to that con
vention, or in peculiar nature of this demand,
or be derived from precedents in other ca
ses, supposed to be similar to this. These
are the only sources 1 can conceive to exist
from whence any matter can proceed where*
on to found an objection to the allowance of
interest. On each ofthese, therefore, 1 will
cast a hasty glance.
A very attentive perusal ofthe convention
of Saint Petersburg, so far from furnishing
to my mind any ground for an epiniou that
it prohibits the allowance of interest, adds to
the weight of the argument in favor of such
allowance, derived from general princip et,
the authority of its own strong and mandato
ry terms. These, whether considered . b y
themselves, or taken m connected with other
treaties entered into by the same parties, con
taining similar provisions, already carried
into effect, and the force of which must,
therefore, have been well understood, seem
to me to supply almost demonstrative evi
dence that the intentof these parties was to
require the allowanceof interest.
The preamble of this convention, after re
citing the award ofthe Emperor ofa!l the
Russias; in which it is expressly declared that
the United States were entitled to claim from
Great Britain “a just indemnification,” pro-
JS'o. 6.