July 11th, $799. Claim admitted ment for Alge rine property taken under the THE KINDERS KINDER, HAYSEN Mafter. on behalf of the T THIS HIS was a cafe of a claim given on the part of Danish govern- the Danish College of Commerce, praying to be admitted in the place of Algerine fubjects, whose proDanif flag, the perty had been captured on board a Danifh fhip, and Dey having ex- for which the Dey of Algiers had exacted immediate from the Danib compensation from the Danish Consul. acted payment conful. Judgment. Sir Wm. Scott.-This is a very fingular cafe, in which the Court has certainly confiderable difficulties to encounter, and one in which it may perhaps be impoffible to decide in any way that may not be liable to fome fair objection. However, the Court muft find its way as well as it can, and can hardly undertake to do more than to give what the law terms a rufticum judicium, or a coarfe fort of equitable arbitration. It is certainly the duty of captors, in all cafes, to carry their prizes to places where they can be put into a course of legal inquiry; but in captures made on the property of Oriental fubjects, a more than ordinary caution, and regularity of proceeding fhould be obferved, because it is very much the practice of thofe countries, under a law of nations now peculiar to themselves, to refort immediately to a very fummary juftice, and to redress themselves for what they confider as an unjust capture, by demanding compensation from the countrymen of the aggreffors, British fubjects refident amongst them may be expofed to very alarming difficulties and danger for: acts acts of other perfons, if thofe acts are not guarded with the moft fcrupulous care. At the time when this capture was made, the King's naval officers in the Mediterranean station were acting in a very critical fituation of affairs; the exigencies of the moment are the best excufe for what was done, or neglected to be done, irregularly in thefe proceedings. The cargo confifted of corn, fugar, and cotton, laden at Algiers on board a Danish ship, and destined oftenfibly to Leghorn, but, according to a fecond charter-party, and, as I think, really to Marseilles; immediately on hearing of the capture, the Dey of Algiers fent for the Danish Conful, and with an emphasis which the Danish Conful did not perhaps think it prudent to refift, demanded of him to refund the value of the cargo taken on board the Danish fhip; alleging that the Danish flag ought to have protected the cargo, and that if it did not, the Danish Government and its public agents were anfwerable; the Danish agent paid the money under this demand, and on a representation of all the circumstances to the Danish government, they reimbursed him, and the application now made is, that the Danish government may be permitted to claim in the place of the original proprietors. All civilized governments have a common interest in paying great attention to each other in their proceedings with the Barbary states; and the Court would certainly be very glad to have it in its power, to aid substantial justice in the dealings of all European subjects with them. At the fame time it must be underftood, that if fubjects of a neutral country fubmit to any flagrant act of violence, as for inftance, if the Dey The KINDERS KINDER. July 11th, 1799. The KINDERS July 11th, 1799. Dey of Algiers should step forward to claim a cargo, evidently French, and they fubmit to refund the value of the property, I fhould certainly not permit their acquiefcence to defeat the right which a British captor had gained in fuch a cargo. But in a doubtful case, the Court would incline to fupport an act done for the prevention of mischief, and although the transaction might not be strictly correct, if it appear to have a folid foundation of justice at the bottom, the Court would be strongly inclined to uphold it in its full extent. With refpect to the evidence in this cafe, the papers have been twice tranflated-firft from Arabic into Italian, and then from Italian into English; what fort of a tranfit they have had into Italian I cannot fay, being not acquainted with their original language the Arabic; but to be fure the Court could not have had a worse medium of information than these English tranflations. From the many inaccuracies which are obvious, I am convinced that, were they to be closely examined, they would be found to contain no reprefentation at all of the Italian letters. On reading the different letters however, I am ftrongly impreffed with an opinion, that the Dey, in speaking of the property as his own, spoke as fovereigns are apt to speak, connecting the interests of their fubjects with their own; the letters ftrongly point to an intereft in this cargo as being not in the Dey, but in fome Algerine merchants, his fubjects; and I understand him therefore as interpofing rather to protect the interest of his fubjects, than to affert any private interests of his own. But if it is fo, it would be too much to say that, because the real proprietors applied 91 The KINDERS KINDER 1799 applied to their own government in the firft inftance instead of applying here, they should therefore forfeit that redrefs, which they might have had by pursuing July 14th, it here originally in the regular mode: the Americans we know did the fame; they applied to their government, and defired their claims to be put in adjustment between the two countries. The Dey has his mode of adjustment, but it would be hard that therefore his fubjects should forfeit the redress, which they might have received here in the first instance if they had proceeded in the regular manner. They have had compenfation, it is true, by means of the Dey's requifition made upon the Danes; but if this has been done to prevent innocent fubjects of Denmark from fuffering, I think that the Court is bound to give the Danes the benefit of all the equity that could have belonged to the Algerine claims, if they had been brought forward: the captors fuffer nothing by this measure, for they could have no right to detain what belonged to Algerines, and if the Algerines have received payment from the Danes, ftill that can convey no interest to the British captors. Under these confiderations I fhall not call for particular claims to be given for the private proprietors of the property, claimed generally as the Dey's own, but I will endeavour to affign, as well as I can, craffiore tela, in a coarse kind of way, what appears upon the evidence to be the respective interefts of the different individuals, and fhall reftore or condemn as those individuals, would have been entitled, if they had stood before the Court. Mr. Bufnac, I think appears to be interested to a confiderable amount-in one third of the cotton clearly The KINDERS July 11th, $799. clearly that I fhall reftore to him as an inhabitant of Algiers he seems alfo to have been a proprietor of one-third of the 2069 measures of corn, and alfo a part owner of that laden at Teideles; for I think from the manifeft that quantity must have been on board this veffel; I restore therefore a third of thefe parcels. There is next a parcel mentioned in the letter as being for our account: the question is, Who are the individuals compofing this firm? J. Bacri the broker, refident at Algiers, must clearly be one, and I think his brother resident at Leghorn must be another; I fhall restore their shares. Another share, muft, I think belong to a perfon, another brother, refident at Marseilles; the letters, in the whole tenor and style of them, point to fuch an intereft. His fhare I fhall condemn, the reft I restore, and direct it to be paid to the Danish government. I am forry that the Danish Government fhould fuffer any lofs in this affair, but I have the fatisfaction of thinking that it is not owing to the injuftice of this country; it is an inconvenience to which all European ftates are liable in tranfactions of this nature where the Barbary states happen to become parties. April 7th, 1800. Claim on behalf THE FORTUNE, SMITH Mafter (a). of the America THIS was a cafe of a claim given on the part of the American Government, praying to be received to stand in the place of African merchants; in refpect government for Algerine property not ad mitted, owing to the manner in which the Ame-(a) This cafe is here reported without regard to the date, as account of its connection with the preceding case. rican flag had been affumed. to |