Page:United States Reports, Volume 2.djvu/15

Rh

It will be proper in the consideration of this objection to attend to the 9th, 12th and 13th articles of capitulation.

The 9th article says: “The absent inhabitants, and such as are in the service of Great Britain, shall be maintained in the possession and enjoyment of their estates; which shall be managed for them by their attornies.” [sic]

The 12th article says: “That widows and other inhabitants, who, through illness, absence, or any other impediment, cannot immediately sign the capitulation, shall have a limited time to accede to it.”

And the 13th article says: “The inhabitants and merchants of this Island included within the present capitulation, shall enjoy all the privileges,” &c.

The fact: is admitted, that the cargo is the produce and growth of Dominica, and that the principal part of it belongs to British subjects; possessing estates in the Island, but non-residents at the time of the capitulation

It is objected, “that with regard to such non-residents, the operation of the 9th article extends no farther than to protect the estates of such persons from seizure and confiscation, by the rights of conquest; that the 12th article extends only to those who have acceded to the capitulation within the time limited, and that the 13th article extends only to such inhabitants and merchants as are included at the time of capitulation, and not to non—residents.

To this it is replied, “that by the 12th article absentees may come in within a limited time and accede to the capitulation, and that then they fall within the description of the 13th article, which says, “the inhabitants and merchants of this island, included within the capitulation, &c.”

Upon these allegations and facts, two questions arise:

1st. Whether the claimants who were non-residents and absentees at the time of capitulation have acceded to it?

2d. Whether having acceded to it, they come within the description of the 13th article, and are entitled to the rights and privileges of trade there conceded?

We have carefully examined all the bills of lading and the depositions annexed, and find that the property mentioned in each bill is proved, by the respective depositions, to be the property of a British capitulant. Whether he personally, or by attorney representatively, subscribed the capitulation, does not appear; nor do we think it material, for the maxim is a true one, qui facit per alium, facit per se.

It is proved by the deposition of Mr. Fitzgerald, that in the general sense and opinion of the people of the Island, the subscription of an attorney for his principal was sufficient, and Mr. Fitzgerald mentions an instance where a principal was refused by Rh