THE NARRATIVE OF MR. JOHN SOREN.
☞ IT has seldom happened that the wrongs of an Individual have had a greater claim to the attention of the Public than those which are the subject of the following Narrative. The generous and disinterested conduct of the benefactor has never been more strikingly contrasted with the ingratitude and persidy of the object of his humanity: the national character of Englishmen was never more dishonoured than in the character of Captain Potter of the Isabella; and the credit of Government was never more deeply interested in any thing than in taking care that the injuries of Mr. SOREN shall not remain unredressed.
MR. JOHN SOREN, a native of Boston, in the state of Massachusetts, a citizen of the United States of America, and a partner in the house of Holyoke and Soren, in Boston, being, in the month of November, in the year 1795, at Hamburgh, freighted an American ship called the Enterprise, then lying there, of the burthen of 170 lasts, or 340 tons, on a voyage from thence to Surinam, and from Surinam back to Hamburgh. The ship was the property of Mr. Clough, of Witchcasset, in the state of Massachusetts, also a native and citizen of America. The charter-party was made between Mr. Soren, on behalf of Mr, Holyoke and himself, as freighters, and Wyatt St. Barbe, a native of England, and [Page 4] 30 years a citizen of America, but then residing at Hamburgh, as master and commander of the ship, on behalf of the owner. By that charter-party *, dated the 24th of November 1795, and regularly attested by a notary-public, the freighters engaged to ship on board the vessel, on her safe arrival at Surinam, a full convenient cargo of West-Indian products, to be brought back to the port of Hamburgh, and to make the Captain's allowance of privilege, as in similar cases: the stipulated freight for the outward and homeward voyage was 2600l. sterling, with 15l. per cent. primage for the whole ship's hold. The object of Mr. Soren was, to ship at Hamburgh a sufficient cargo fit for the market at Surinam; and, by the produce of that cargo, and by means of letters of credit which he had obtained on Surinam, to the amount of nearly 15,000l. sterling in the whole, to purchase, at Surinam, coffee sufficient to load, not only the Enterprise, but several other ships, which he intended to freight at Surinam or other ports, the comparative prices of that article, at Surinam and at Hamburgh, at that time affording him the best ground to expect that his adventure would prove a very profitable speculation. In prosecution of this object, he shipped on board the Enterprise, at Hamburgh, goods to the amount, in prime cost, of 3200l. and upwards†, and caused insurances to be effected on them, and on the supposed profits, by underwriters at Hamburgh, to the amount of 5000l. and upwards. Captain St. Barbe at the same time shipped linen, groceries, liquors and glass, on account of himself and Messrs. Furst and Co. citizens and burghers of Hamburgh, to the amount, in prime cost, of 901l. 8s. 11d. sterling.
On or about the 5th of February 1796, Mr. Soren sailed in the Enterprise on his intended voyage. On the 25th of the same month, being in latitude 44° 1′ north, longitude 18° 35′ west, at one p. m. Captain St. Barbe and Mr. Soren observed a ship towards the south-west, with an English ensign reversed, which they considered as a signal of distress▪ they sailed towards her, and about four o'clock p. m. came up with her, and learned she was the Isabella, belonging to Messrs. [Page 5] Tarleton and Backhouse, of Liverpool, Charles Potter commander; that she had a letter of marque, and had been freighted by the British Transport-office to carry nearly 300 troops from Cork to Barbadoes: she was in a very leaky and almost sinking condition, both pumps incessantly going. The Captain, with one of his mates, came on board the Enterprise; and, having shortly informed Captain St. Barbe and Mr. Soren of the perilous situation in which he found himself, requested them to see him into Lisbon or Corunna: Captain St. Barbe replied, that to go to either of those places, would be too great a deviation from his voyage; but that, with Mr. Soren's approbation, he would with much pleasure accompany him to Madeira, Teneriffe, or any of the Windward Islands; and render him every service in his power, consistently with the duty he owed to the owners and proprietors of his ship and cargo: Mr. Soren readily assented. Potter seemed rejoiced at the proposition, and said he would send on board his own ship for the approbation of the commander of the troops*: he sent his mate accordingly; but not to communicate to the commander of the troops, or to his crew, the humane offer of Mr. Soren and Mr. St. Barbe! The reader will be startled at the relation which follows; he will with difficulty conceive the possibility of a transaction so replete with perfidy and ingratitude: it is nevertheless true, and can be established beyond contradiction by the testimony of all the officers of the troops then on board the Isabella who are now alive: This monster in human shape, without a shadow of proof, without the slightest ground of suspicion, without having seen a single article of the cargo, or a single paper, without having had any communication with any one on board but Captain St. Barbe and Mr. Soren, at the very moment when he was expressing his thanks for their kindness, which was to rescue him, his passengers and crew, from almost inevitable destruction, had conceived the diabolical project of making prisoners of his benefactors, and seizing their ship as a prize! He whispered to his mate; the mate obeyed the suggestion: he returned on board the Isabella; he brought back with him on board the [Page 6] Enterprise a party of soldiers and sailors, with musquets and bayonets fixed: Potter, on their arrival, insisted the ship was French; that the cargo consisted of French and Dutch property; that the Captain must be a Frenchman, because his name was "St. Barbe;" and that Mr. Soren had two sets of papers! Remonstrance was vain: the miscreant took possession of the ship as a prize; made Mr. Soren and the chief mate, the carpenter, and eight of the seamen, prisoners; and drove them, with pistols cocked at their breasts, and at the point of the bayonet, out of their own ship into the Isabella, which was every moment in danger of sinking!
It was afterwards learned, that Captain Potter, when the Enterprise approached the Isabella, represented to the officers of the King's troops that she was an enemy, and was bearing down upon them in order to attack; that the officers, observing her inferior size, the small number of men on board, and no appearance of guns or of warlike preparation, reasoned with him against this representation; that, nevertheless, and notwithstanding the perilous condition of his own ship, he ordered the guns to be got ready, and the soldiers to be arrayed on deck, ready for an attack; and that it was this circumstance which enabled him, with such promptitude and facility, to obtain from the officers the party of soldiers who took possession of the Enterprise.
When Mr. Soren arrived on board the Isabella, and stated the circumstances of his situation, and the manner in which he had been treated by Potter, the officers of the troops, whose humanity and polite attention to the sufferers reflects on them the highest honour, reprobated in the severest terms the inhuman conduct of Potter; and Captain Mansergh, the commanding officer, declared, that had he known the real circumstances of the case when Potter sent to him for a detachment, he would not have permitted it to go.
Potter having, in the manner before stated, taken possession of the Enterprise, continued on board her till the following day, when he obliged Captain St. Barbe to deliver up to him, as well the greatest part of the ship's papers, and those relating to the cargo, as many others of a private nature: after examining them, he began to rummage the hold; and, after [Page 7] breaking open several cases and boxes, took out gin, provisions, and whatever he thought proper, and afterwards gave them to the guard of soldiers, in whose charge he left the ship.
When he returned on board the Isabella, the officers of the troops remonstrated with him on the impropriety of his conduct, and advised him to release the Enterprise, as there was not the slightest colour for his taking her as prize: he told them that it was no business of theirs; that they were only passengers; produced his letter of marque, which, however, only comprehended French property; that his owners, Messrs. Tarleton and Backhouse, were persons of property, and were responsible for his conduct; and that, if, through the interposition of the officers, he should be obliged to part with his prize, they must answer to his owners. In addition to what he had said the day before, he declared, what was most certainly false, "that he knew St. Barbe well, that he was a rogue, and that, if he had him in England, he had papers sufficient to hang him."
Mr. Soren represented to him, that after the humanity of Mr. St. Barbe, manifested to him and nearly 300 persons on board his vessel, his conduct was reprehensible in the extreme; and requested, as he was completely in his power, that he might be permitted to return to the Enterprise, rather than remain, on board the Isabella: Potter replied, that Mr. Soren was his prisoner, and that he would conduct the two ships to the Rock of Lisbon, and from thence send the Enterprise to Barbadoes for condemnation. Mr. Soren then represented to him, that he acted in open defiance of the law of nations, and in direct violation of the treaty lately concluded between Great Britain and America; and desired that he would, as he proposed, direct the ship's course to Lisbon, where they might both have ample justice done to their cause. Potter then shifted his ground; he pretended that he could not reach Lisbon. The officers of the troops desired that he would steer for Madeira, to which Captain St. Barbe had at first offered to accompany him: to this he apparently agreed; but steered to Teneriffe.
When arrived at Teneriffe, Mr. Soren requested his permission to go on shore: the answer was, "You may jump into [Page 8] the sea, if you like it; but neither you nor Captain St. Barbe shall go on shore till the arrival of the British Consul." That gentleman was then at the Grand Canary. Captain Mansergh interposed, and almost by force took Mr. St. Barbe on shore with him in his boat; they applied to the Governor of Teneriffe, and, by their representation, obtained an order for Mr. Soren's being also permitted to land. In consequence of this order, Mr. Soren, after having been detained upwards of twenty-four hours, landed on Teneriffe, literally a stranger, without money, without friends, stripped of every thing, his gold watch*, his cash, all his private property, except a few articles of wearing apparel!
In a few days, the British ship Isabella was condemned, as incapable of proceeding on her voyage. The fact, on inquiry, turns out to be, that this ship was upwards of thirty years old, and, at the time when she was freighted to Government, was unfit to be sent to sea; and had it not been for the continued exertions of the soldiers at the pumps, and, even notwithstanding those exertions, had she met with a severe gale of wind, she must have gone to the bottom.
On the second day after the arrival at Teneriffe, Captain Potter began to tranship from on board the Isabella, on board the Enterprise, military stores and baggage, and to unstow the cargo of the Enterprise, breaking open some packages, and starting others, for the purpose of sitting up births for the accommodation of the soldiers, who, to the number of 150, with women and children, beside the crew of the Isabella, were afterwards embarked on board the Enterprise, on which Porter hoisted the British jack ensign and flag. During the detention of the Enterprise at Teneriffe, through the wantonness of Potter and his crew, she experienced almost every species of injury, and was so much damaged, that when she arrived at Barbadoes she was much reduced in value.
While at Teneriffe, application was made by Captain St. Barbe to Peter Favene, Esq. the British Consul there, for an investigation of Potter's conduct. That gentleman, though fully satisfied, from the perusal of the documents produced, [Page 9] that there was no foundation for seizing the Enterprise as a prize, and though he strongly reprobated the conduct of Potter, yet declined to interpose, from an opinion that, as Consul, he had no power to make the required investigation; and referred the parties to a regular Court of Admiralty at Barbadoes, whither Potter said he intended to carry the ship for condemnation *.
On the voyage to Teneriffe, Potter, by plying the sailors of the Enterprise with liquor, and by promises, endeavoured to prevail on them to give evidence that the Enterprise was a French or Dutch ship. Finding his atttempts by entreaties ineffectual, he put them on an allowance of bread and water, and, even of these, a scanty allowance. By this treatment the health of the mariners was much injured, and more particularly that of the carpenter, who, in addition to other ill-treatment, was kept in irons, as a punishment for refusing to swear to the effect Potter wished him to do. With two only was he able to succeed, who afterwards declared they were induced from threats and ill treatment, and that what they had been prevailed upon to depose was false, and extorted from them in the hopes of obtaining an alleviation of their sufferings.—As a proof that his understanding was as weak as his heart was wicked, he also attempted to tarnish the honour of the British military, who certainly do not hold in light estimation that delicate point, by promising them a share of the prize, as he termed it, with him; they disdainfully refused his offer, and expressed their united disapprobation of his conduct in manly and unequivocal terms.
Previous to the departure of the Enterprise for Barbadoes, Mr. Soren requested Potter to permit him to have his private effects, not forming a part of the cargo: he refused to restore a single article, except some private letters of trifling importance. He carried his brutality farther: he refused Mr. Soren a passage to Barbadoes, "unless he would go in the common way;" in other words, "unless he would go in the steerage; and he turned Mr. St. Barbe, who, with Mr. Harlow his mate, proceeded to Barbadoes, out of his state room, notwithstanding [Page 10] the remonstrances of the British officers that he ought to be permitted to remain in possession of it.
Mr. Soren being refused a passage in the Enterprise in a decent way, was advised by Captains Mansergh and Thomas to leave the conduct of the business at Barbadoes to Mr. St. Barbe, and to come himself to England, where it was supposed he might obtain redress for the injuries he had sustained. How far this supposition was well-founded, will be seen in the sequel.
On the 25th of March 1796, Potter sailed in the Enterprise from Teneriffe, and, on the 16th of April following, arrived in Carlisle Bay, Barbadoes. Potter then exhibited a libel against the ship and cargo, as prize, in the Vice-Admiralty Court there; to which a claim was entered by Captain St. Barbe, on behalf of himself and the owner of the ship, and the several persons interested in her cargo; and a petition was preferred by him to the Judge of the Court, praying that the libellant might be compelled to give security for costs, in case the ship and cargo should not be condemned as good and lawful prize. This petition, after argument of counsel, was granted, and Potter not giving security as ordered, the libel was dismissed *; on which Mr. St. Barbe petitioned the Court for damages. Potter filed a petition, praying that an attachment might issue against the ship and cargo, alleging that sufficient evidence had been obtained to prove them the property of an enemy, until he or the King's Advocate-General should proceed further against them: this petition being granted, a libel was filed by the King's Advocate-General against the ship and cargo as a droit of the Admiralty; and this on the very day appointed for the investigation of the merits of Captain St. Barbe's petition for damages †. To this libel Captain St. Barbe also put in his claim on behalf of himself and the owner of the ship and proprietors of the cargo; and the case being heard, the ship and cargo were ordered to be restored ‡.
[Page 11]Captain St. Barbe wished then to renew his petition for damages; but he was advised by his counsel that it would be to no purpose, as Potter had in the mean time absconded, and had no property within the reach of the Court, and as the King's Advocate paid no damages *.
It has been stated that Potter had plundered the ship; he had expended a great quantity of the stores; many perishable articles were completely spoiled; the dry goods which remained unplundered, were much damaged; the ship had been robbed of great part of her materials, and was otherwise much injured; the worm had got into her bottom; and Captain St. Barbe found it absolutely necessary to proceed to Alexandria in America, to have her sheathed and repaired. When she had undergone such repairs, which amounted to between 3000l. and 4000l., he returned with her to Hamburgh, the place to which she was to have returned after she should have made her voyage to Surinam.
Before the ship's departure from Barbadoes, the remainder of her cargo, from the depredations of Potter, was sold for 2779l. 8s. 0¾d.; from which, deducting the expences of sale, amounting to 270l. 3s. 1½d. there remained the sum of 2509l. 5s. 5¼d. Barbadoes currency; in sterling money, 1756l. 9s. 9¾d.; a loss being thus sustained of 2349l. 12s. 6d. on the prime cost of the cargo at Hamburgh. The loss on the whole of this transaction, to Captain St. Barbe and his owner, and to Mr. Soren and his partner, amounted in the whole to 11,553l. 19s. 8½d. sterling †, independently of the loss of the voyage, and the probable advantage which might have accrued from it.
When Mr. Soren was informed of what had passed in the Vice-Admiralty Court at Barbadoes, he directed Captain St. Barbe to apply to the Underwriters at Hamburgh, from whom he received the following answer:— ‘You are not entitled to recover, inasmuch as, having borne down to the relief of his Majesty's transport, laden with troops, in distress, you altered the ship's regular course, and deviated from [Page 12] the voyage on which you made the [...]urance.’ —To the credit of the character of the British merchants, Mr. Soren has been informed by several Gentlemen at Lloyd's, that he would not have received such an answer from the Underwriters at that place.
Mr. Soren was now advised to have his case drawn up, and submitted to the opinion of Counsel. A case was accordingly prepared, and laid before Mr. Gibbs, one of His Majesty's Counsel: In this case it was stated, that, on the sailing of a letter of marque, security is given for any damage or injury which may be done to any of His Majesty's subjects, or of foreign states in amity with His Majesty; and that, in the case of the Isabella, a bond had been given in the penalty of 1500l.—and the following Query was put:
‘What steps ought the unfortunate sufferers to pursue to seek redress for their several injuries? Must such redress be sought by actions at law against Messrs. Tarleton and Backhouse, the owners of the letter of marque, as Potter, the commander of her, is run away? And will such actions lie? And in that case, and on separate actions being commenced, cannot Soren, St. Barbe, and Clough, be evidence for each other, as to the extent of the injuries suffered severally? And is the bond for 1500l., given by Jordan, Kembie, and Sowerby, assignable for the benefit of the sufferers? And, ought an application to be made to the Lords of the Admiralty in this case, or whom else, by petition or otherwise, to direct the same to be put in suit? And, upon the whole, point out what steps they ought to take to seek effectual redress; and, if actions are maintainable, what evidence will be necessary to support such actions.’
The following is a copy of Mr. Gibbs's answer:—
This is a case of most dreadful hardship upon those whose property has been thus attacked; but it appears to me that the Vice-Admiralty Court at Barbadoes, when they determined that the ship and cargo were no prize, and ordered them to be restored, ought to have decreed a compensation for the loss sustained by the capture; and after the case of Le Caux and Eden * in Douglas, I take it to [Page 13] have been settled, that no action will lie in any of our Common-Law Courts for the recovery of such compensation. The question of Prize or no Prize? is exclusively of Admiralty jurisdiction, and draws with it, as an incident, the question of compensation for the injury occasioned by the capture. I think that this objection extends also to the suit on the bond.
The statement of the case was also laid before Sir William Scott, then the King's Advocate-General, who gave his opinion in the following terms:—
The application of the parties in this case ought to have been to the Court of Vice-Admiralty for costs and damages, it being the proper duty of that Court, not only to make restitution where it is due, but likewise to decree costs and damages when the capture was grossly improper. If the Judge refuse improperly to decree costs and damages, an appeal lies from that refusal; but I do not think that any common law jurisdiction either can or will examine the question whether the capture was unjust or not: it is a question merely of Admiralty cognizance; and if the Court of Admiralty or Court of Appeals has not decreed it to be an illegal seizure, a Court of Common Law will not take upon itself to pronounce such a judgment. I must observe, that a decree of restitution does by no means infer that the original seizure was illegal and violent; for there may be just cause of seizure, although the property may, upon further inquiry, be restored.
I am of opinion that the decree, standing as it does, unaccompanied with costs and damages, must be taken in all Courts to imply that costs and damages were not due; and this imputation is the stronger against the claimants for their not demanding them; for, if they did not demand costs and damages in the proper jurisdiction in which they ought to be awarded, the inference would be, not only that costs and damages were not due, but that they were not due in the opinion of the claimants themselves, who did not so much as venture to ask them.—Upon these grounds, I am [Page 14] clearly of opinion that no action can be maintained against the captors.
In consequence of these opinions, Mr. Soren was advised to lay his case in the form of a petition before his Majesty in Council, A petition was accordingly prepared*, and sent to Lord Grenville, inclosed in a letter from Mr. King†, the American Minister: his Lordship laid it before the Privy Council, who considered the case as a case of peculiar hardship, and that Mr. Soren was well entitled to some compensation for his loss; but they were of opinion that the application ought to have been made to the Lords of the Treasury. This being communicated to Mr. Soren, he prepared another petition to the same effect, and, through the medium of Mr. King, procured it to be laid before the latter Board: he was constant in his attendance every Board-day for six months; at the expiration of which time, the case was referred by the Lords of the Treasury to the Commissioners of the Transport-Office, who made a most extraordinary report to Charles Long, Esq. of the Treasury: ‘That the ship called the Isabella was not a regular transport in the service of Government, but only freighted by them to carry troops to Barbadoes; and that, therefore, their department, or their agents, were not responsible, but the master of the Isabella ‡.’
It is difficult to comprehend how the distinction between "a regular transport in the service of Government," and "a ship only freighted by them to carry troops," could affect the claim of Mr. Soren, or of the master or the owner of the Enterprise, on the justice of Government for a compensation for the loss they had sustained by means of the iniquitous conduct of a man certainly in the service of Government; or the right of the owner of the Enterprise, to the proportion of freight, at least, for the conveyance of the troops from Teneriffe to Barbadoes.
It has been mentioned, that Mr. King inclosed Mr. Soren's [Page 15] petition in a note to Lord Grenville: His Lordship transmited it to Sir William Scott, who returned an answer to his Lordship, in which he stated, "that he was no further acqainted with the merits of the case than as they had appeared to him in a statement of the circumstances which had been submitted to him on the part of the American owners for his opinion, and in the papers then transmitted to him by his Lordship;" and concluded by observing, "that if the course of law had applied an adequate remedy for injuries, and the parties entitled to it had, for some reason or other, declined to resort to it, it could not found any claim upon the justice of that Government under which an injury of that species had been committed without being followed by its proper satisfaction*"
Mr. Soren learned that Messrs. Tarleton and Backhouse, the owners of the Isabella, had applied to the Transport Board for an indemnification for the loss of the ships in the service of Government, and that, in the statement of the loss sustained by them, they had charged 750l. for the conveyance of the troops from Teneriffe to the West Indies in the Enterprise. As he had in fact received no remuneration from Messrs. Tarleton and Backhouse, or any other person, for that conveyance, he laid his case with this additional circumstance before Dr. Nicholl, now the King's Advocate in Dolor's Commons, who gave an opinion, of which the following is a copy:
This vessel having been seized as prize, and proceeded against as such in a regular Court of Vice-Admiralty, any demand for costs and damages, arising out of that seizure, could only be set up under those proceedings; and a sentence of restitution having taken place, unaccompanied by a decree of costs and damages, and that sentence not having been appealed from, I am of opinion that the parties are precluded from setting up any demand of costs and damages, either in a Court of Admiralty, or by any other judicial proceeding.
If the owners of the Isabella should obtain, from the Transport Board, a compensation for the use made of the [Page 16] Enterprise while in the possession of the prize-master—whether Mr. Soren or Mr. St. Barbe might not, by some proceeding at law or in equity, recover over from them the amount of such compensation, is more than I (not practising in those Courts) can undertake with confidence to state; but in a Court of Admiralty the parties can have no relief.
In the month of September 1798, Mr. Soren was advised to make another application to Lord Grenville individually, requesting his Lordship's interposition in his favour: this he did in a letter * which he procured to be delivered to his Lordship through the medium of Mr. King. What step was taken by his Lordship in consequence of this application, he could not learn, till after an attendance of several months on his Lordship's Secretary, Mr. Hammond, by whom he was at last informed, that his Lordship had written on the subject to the Right Hon. Henry Dundas, who was then in the country, and for whose return Mr. Soren was under the necessity of waiting till the month of March 1799.
In the month of October 1798, Mr. Soren being informed that Messrs. Tarleton and Backhouse were men of great property, was advised to go down to Liverpool, and make personal application to them for some relief; and, having, as before stated, been informed that they had received from Government the freight of the troops to Barbadoes, to ascertain whether he could, by any means, or in any shape, proceed against them in case of their refusal.
Soon after his arrival at Liverpool, he had an interview with Mr. Backhouse, who seemed to pity his case, and disposed to do something for him: he reprobated the conduct of Potter in merited terms, and said "he wished he had hold of him for Mr. Soren's sake;" but at the same time he informed him that Mr. Tarleton was out of town, and that nothing could be done without his presence and consent.
Mr. John Tarleton arrived, and Mr. Soren waited on [Page 17] him; but what was his surprise when he found that Mr. Tarleton attempted to justify the conduct of Potter; said he was perfectly right, and insisted that Mr. Soren was loaded with enemies' property!
In what terms can the conduct of that man be adequately reprehended, who could justify a miscreant who had committed a piracy which disgraces humanity?—Mr. Soren pities Mr. John Tarleton, and would not exchange situations with him, were his fortune ten times what it is; and, with this observation, let Mr. John Tarleton be dismissed.
In consequence of the suggestions of some professional men at Liverpool, Mr. Soren entertained some hope, that all legal redress against Messrs. Tarleton and Backhouse was not absolutely shut against him: he therefore laid his case, with some additional circumstances and observations, before Mr. Park, who considered it as a case of much compassion; but his opinion was equally unfavourable to Mr. Soren's claim to legal redress with those which had preceded it.
Mr. Park's opinion was in the following words:
I have perused all the papers laid before me with considerable attention; and although I think it a case of unparalleled hardship, and infamous misconduct, yet I am sorry to say, that as these proceedings have taken place under colour of prize, and as a Court of Admiralty has already taken cognizance of, and come to an adjudication upon, the principal matter, I am of opinion the misconduct of the Captain, either by an action against him or his owners, is not now triable in Great Britain in a Court of municipal law. I am aware that Mr. Soren was not personally present, to lay his claim before the Vice-Admiralty Court of Barbadoes: but I think that makes no difference; for, in contemplation of the law of England, the sentence of a Court of Admiralty binds every man; and the Captain, though not specially so constituted, was the agent of all parties as to this purpose.
I have also attentively read the case of Le Caux v. Eden, referred to in the opinion given by Mr. Gibbs; and I am clearly of opinion, that although the circumstances of that case are very different from, and not to be compared in [Page 18] enormity with, those of the present, the principle of that decision, and of others therein cited, applies most strongly to the present. The general principle there established, as well as in Rous v. Hassard, and in Livingston v. Welch, is, that although an action of trespass would lie for taking a ship or goods, or imprisoning, or otherwise cruelly treating a man on the high seas; yet, when it is taken as prize, though taken wrongfully, though it be restored, though there be no colour for the taking (as here), the Judge of the Admiralty must judge of all the aggravation and consequences, as well as of the principal matter; and if an action were brought in a Court of common law in England, the plaintiff could not recover.
What redress Mr. Soren can obtain in a Court of Admiralty in the present stage of the business, he has already been informed by men very competent to advise him; and I fear he can have no other remedy than by an application to the favour of the British Government, whose subject has behaved in a most oppressive, wicked, and inhuman manner.
My Lord Grenville had, soon after the receipt of Mr. Soren's letter, transmitted it to Sir William Scott, in a note, desiring him to report the circumstances of the case, and the grounds on which legal redress was rendered impossible.
Sir William returned the following answer:
I am honoured with your Lordship's letter, dated September 21, inclosing the copy of a letter received from Mr. Soren, and desiring me to report to your Lordship the circumstances of the case, and the grounds on which legal redress is rendered impossible. In obedience to your Lordship's request, I have considered the same; and report to your Lordship, that the ship Enterprise, belonging to Mr. Soren, an American subject, was taken and carried into Barbadoes by the British letter of marque ship Isabella, in a [Page 19] manner, as Mr. Soren has uniformly represented it, very inconsistent with justice and good faith. That proceedings were commenced in the Vice-Admiralty Court of that island, by the decree of which the vessel was finally liberated; but, that no costs and damages were awarded—none having been proved on the part of the owner. That all avenue to legal redress is irrevocably closed, by this omission on the part of the owner, or his agent; for, that a simple restitution having been accepted in the Court below, the proceedings there were completely finished, and cannot be revived by a new demand for costs and damages, which had never been urged in the original cause: and, for the same reason, no such demand can be addressed to the Court of Appeals; the sentence having been accepted by the owner or his agent in an unqualified manner, and without any ulterior demand, from the rejection of which he might legally have appealed. And as to a Court of common law, to which he was advised to resort, it is sufficient to observe, that that Court has no jurisdiction upon subjects of this nature; but that the matter of prize, with all its consequences, as well of costs and damages, as of every other species, belongs, altogether and exclusively, to the Courts of Admiralty.
Your Lordship will, therefore, be pleased to observe, that the hardship of this case, whatever may be its extent, arises entirely from the neglect of the owner or his agent; which Mr. Soren justifies or excuses, by imputing it to ill advice administered in the island. One certain hardship I have already pointed out to be the entire loss of legal redress; and with respect to redress of an equitable nature, it is not perhaps too harsh to remark, that if a country provides Courts of Justice and a regular course of legal proceedings for the reparation of wrongs done by its subjects to the subjects of foreign powers, it has done all that the intercourse of nations requires; and that the dereliction of such legal remedies, under the plea of private ill advice which the parties have received to that effect, has not been held, as far as I know, to found a demand upon the equity of the public Government of the country. It is, however, due to the [Page 20] claimant to remark, that he has, in his present application, stated a public service of considerable merit towards the King's Government, in the conveyance of His Majesty's forces, on board his vessel, to the island of Barbadoes, when the Isabella transport was incapable of conveying them; and I submit to your Lordship's judgment, how far the proof of such a fact, aided by such circumstances of the case as address themselves to compassion, may entitle the party to be favourably considered by his Majesty's Government.
To the Right Honourable Lord Grenville.
Lord Grenville immediately transmitted to Mr. Dundas the letter of Mr. King, of the 26th of December 1797, inclosing Mr. Soren's petition, that petition itself, the first letter of Sir William Scott, Mr. Soren's letter to Lord Grenville, and the last letter of Sir William Scott, with a note, recommending the case to Mr. Dundas's consideration *.
On the 12th of March Mr. Dundas sent a letter to the Commissioners of the Transport Board, of which the following is a copy:
The case of Mr. Soren, freighter of the American ship Enterprise, with which you are already fully acquainted, and to which the inclosed papers relate, is so singularly hard, and so peculiarly entitled to relief, that I have received his Majesty's commands to desire that you will cause to be paid to him, as owner of the ship Enterprise, the same allowance of freight and passage-money for every British officer and soldier received by him from on board the Isabella, and landed at Barbadoes, as he would have been entitled to, had he received them on board in England, and conveyed them to that island in safety, upon his producing sufficient certificates of the service having been performed in the manner he has [Page 21] stated: this allowance to be made according to the rate of the contract made with the owners of the Isabella: and I hope, for every reason, that this affair may be concluded with as little delay as possible.
At the same time I cannot avoid suggesting the propriety of your endeavouring to ascertain how far it may be possible to recover, from the owners of the Isabella, the amount, or any part, of what has been paid to them for this service, which they certainly did not duly perform
Commissioners of Transports.
In consequence of information received by Mr. Soren, that my Lord Grenville, as well as Mr. Dundas, were favourably disposed to him, and had actually interfered on his behalf and that a correspondence had been held by letter on the subject, with others of his Majesty's Ministers, he was advised to endeavour to obtain copies of such correspondence; and accordingly he made application at the Transport-Office, from which, on the 7th of April last, he obtained, among others, copies of the above three letters.
What report the Commissioners of the Transport-office made in consequence of Mr. Dundas's recommendation of the case to their consideration, Mr. Soren has not learned; but he was informed at that office, that it was the opinion of some persons there that the Lords of the Treasury ought to cause to be paid to him, the amount of the loss sustained on his cargo, as well as the freight for the conveyance of the troops. He renewed his attendance at the Treasury, and continued it every Board-day till the month of July following, when he was informed by Mr. Long, that the Lords of the Treasury had directed the Transport-office to pay him 500l. This rather surprised him, as Messrs. Tarleton and Backhouse had paid for the conveyance of about 60 of the troops in the Teneriffe Packet the sum of 1500l. and at that rate the conveyance of the remaining 150 in the Enterprize would amount to 3750l. Mr. Soren, therefore, took the liberty of remonstrating [Page 22] with Mr. Long on the smallness of the sum, when that gentleman assured him that was the whole that was ordered him, and intimated, that unless he accepted the sum then offered, he had to expect nothing. The difficulties in which Mr. Soren had been involved, from the total ruin of his fortune, and the disappointment of the very flattering prospects he had reasonably formed from the event of his voyage, the distress he had suffered from the great length of time which had clapsed from the period when his ship was seized, and the dread that Mr. Long's intimation might be realized, induced him to accept the proffered sum; and it seems he has but small foundation to hope for any further compensation for his loss, and the injury he has sustained, unless the preceding simple narrative of his case should happen to [...] the eye of those members of Administration who appear to have formed a just estimation of the gross injustice of the capture, and the unparalleled circumstances of wickedness and oppression with which it was accompanied.
The objection to Mr. [...] claim of compensation is, that he has let pass the proper time for making that claim.— It is certainly true that a Court of Admiralty has the sole and exclusive jurisdiction of the question, "Prize or no prize?" and that, having cognizance of the principal question, it has also the power, and the exclusive power, of awarding costs and damages to the full extent, to the captured, where the circumstances of the case warrant such a decree. It must be admitted, that a decree of restitution by no means implies that the captured are entitled, as a matter of course, to a decree of costs and damages: there may have been probable grounds of seizure, though, on a full investigation, the ship and cargo seized may be justly restored. It must also be admitted, that where the parties libelled, omit, in the proper stage of the proceedings, to pray for costs and damages, the fair inference, in the first instance is, that they are satisfied their case does not entitle them to demand them: and it cannot be denied, that, in a legal point of view, Mr. St. Barbe was Mr. Soren's agent, though not specially constituted such; and that Mr. Soren was, in the same point of view, bound by his acts or omissions; but neither can it be denied, that a man may [Page 23] suffer great injustice, and sustain most grievous hardships, from the default of his agent, without being justly charged with the consciousness of the want of merit in his cause, and that he may, by accident or misfortune, or by the artful management of his opponent, be completely shut out from legal redress, without forfeiting his claim to compensation from that Government, by the nefarious acts of whose servant he has been reduced to ruin.
This is peculiarly the case of Mr. Soren: he exercised an act of the most benevolent nature towards a ship in distress, in the danger of every moment going to the bottom of the ocean; this ship, and its commander, were in the service of the Government of Great Britain: he received a most ungrateful requital; his ship and cargo were seized as prize, without the most distant shadow of a cause; he was cruelly put in a situation which prevented him, but under the most mortifying circumstances, from following his property to the place where he might in person have claimed the protection and justice of the proper jurisdiction. There does not even seem to have been any censurable default in his agent. Mr. St. Barbe did, in fact, in the proper stage of the proceeding, petition for costs and damages; this was rendered nugatory by the management of Potter, who procured the ship and cargo to be libelled as a droit of Admiralty at the suit of the King's advocate, on the very day when his petition was to be taken into consideration. Before the second libel could be disposed of, Potter, against whom alone the decree of costs and damages could be pronounced, absconded, leaving no property against which such a decree could attach: the King's Advocate pays no costs or damages: in the present case he acted merely in an official capacity, on the suggestion of Potter: it is therefore to be attributed to accident, or at the most an excusable want of foresight on the part of Mr. St Barbe or his advisers, or to the guilty management of Potter, that the proper time for demanding legal redress has passed.
Had the Enterprise been captured by a person armed with a mere letter of marque, or even by a King's ship in the ordinary course of warfare on the seas, without the circumstance of her having fallen into the snare by an act of benevolence [Page 24] on the part of her commander and supercargo; though there had been no colour for the capture, though there had been no circumstance of suspicion to justify the capture, though there had been a decree of restitution on the fullest and clearest evidence that she was not a fit subject of seizure, though it must have been manifest to all the world, that if a petition for costs and damages had been preferred, it must have been decreed; yet if the parties interested had, in the proper stage of the proceedings, through ignorance, or accident, or ill advice, or any other cause, omitted to claim those costs and damages, it is not contended that there would have been any moral obligation on the Government, under the sanction of whose flag the injury had been committed, to refund the injured party the loss he had sustained.
In the present case, it is not contended that Government were bound, by any rule of strict moral obligation, to compensate Mr. Soren for any disappointment in his expectation of speculative gain on the event of his voyage; but, on an attentive perusal of his case, it is hardly to be supposed that the impartial reader will think it unreasonable or too sanguine in him to have hoped that he would have been reimbursed the difference between the prime cost of his cargo and the produce of the remains which escaped the hands of his plundering captor, together with the full freight for the troops conveyed in his ship from Teneriffe to Barbadoes. His right to the latter can hardly be disputed on strict legal principles; though, perhaps, he might not be able, in any form of action, to recover against the Commissioners of Transports, because he had no contract with them. This right must indeed be considered as acknowledged by those who ordered the payment of the 500l.; for it seems to have been ordered, not as an offering of generosity in compassion to the hardships of his case, but as an equivalent for the freight of the troops: it was, in fact, by no means an equivalent according to the usual rate in such cases. By what hidden influence so small a sum was ordered, it is difficult to conjecture: it is manifest, from the letters of Lord Grenville and Mr. Dundas, that it was the wish of both those ministers that Mr. Soren should have an ample compensation.
[Page 25]The contrast between Mr. Soren's present situation, and what it might have been, had he been fortunate enough not to have fallen in with the Isabella, is most distressing. From Hamburgh he failed with a cargo, the prime cost of which exceeded 3000l.: it consisted of articles which would have been of high value in the place to which they were destined; the profits would have been large; the produce was to have been laid out in the purchase of an article which might probably have been sold at Hamburgh at double the original price; and to this was to be added the profit arising from so much more of the same article as could have been purchased at Surinam for 15,000l.; for to that extent Mr. Soren had letters of credit on that place: the whole profits of his voyage must have placed him in a state of enviable independence. He is now stripped of every thing; he has wasted four years of the prime of life in fruitless solicitation; he has again to begin his career of industry, with a wife and three infant children, without the aid of capital, though not perhaps without friends. His case is respectfully submitted to the attentive perusal of the Public, but more particularly of those whose situation in life, or the situation of whose friends and relatives, may possibly expose them to the same kind of distress which he has experienced.