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fected. They no doubt fully existed, and yet exist, in his majesty's good pleasure ; and taking for granted this fact, I saw in the opinion nothing but proofs of a friendly disposition, and pledges that this was not to be either wantonly destroyed or diminished. How inauspicious, however, to its authority and the consolation derived from it, is this recent act of the council of prizes, an act which explicitly acknowledges the opposite characters and conflicting injunctions of these two instruments, and which of course draws after it considerations the most serious to the government of the United States.
The second reason of the council is “ That the decree declaring British merchandise good prize, had principally in view captures made on the high seas, but that the question, whether shipwrecked goods ought to be restored or confiscated, having always been judged under the 14th article of the regulation of the 26th of July, 1778, and according to their character (that might have rendered lawful, or have even commanded their seizure at sea) there is no room to introduce in this case any new distinction which, however philanthropick it may appear, has not as yet been adopted as a rule by any maritime nation."
The doctrine resisted in this passage, and which incul. cates the duty of extending protection to the unfortunate, is not new to his majesty's council of prizes. They have themselves consecrated it by their decision of the 5th of March, 1800. By that decision, they restored an enemy's ship,* on the single reason, that she had been compelled to enter a French port by stress of weather. “ I should equally fail,” says the attorney general, “ in respect to myself, and to the council, before whom I have the honour to represent the government, were I not to maintain a principle, consecrated by our laws, and by those of all nations. In all circumstances, let the loyalty of the French government serve as the basis of your decisions. Prove yourselves at once generous and just; your enemies will know and respect your magnanimity." Such was the principle adopted by the council in the year 1800, and in the case of an enemy's ship. Yet, we are now told, that this very principle, so honourable to the court, to the
* The Diana. VOL. VI.
nation, and to human nature, is utterly unknown to all maritime people; and on what occasion do we hear this? When an enemy's ship is again thrown on the French coast? No: it has been reserved for the wreck of a neutral and a friendly vessel! for a ship of the United States. It is ħot denied, that had this ship escaped the rocks, and made the port of Morlaix, the only inhospitality to which she would have been exposed, (under the most rigorous interpretation of the law in question) would have been that of being ordered again to sea. Has then the misfor. tune of shipwreck so far altered her condition, as to ex. pose her to the injury of confiscation also ? and is this among the principles which the defender of maritime rights means to consecrate by his power and his wisdom? It is impossible.
The third reason of the council is, “ That the application of the fifth article aforesaid, in as far as it concerns the Americans and other nations, is the result both of the general expressions of that very article, and of the communication recently made by his excellency the grand judge, concerning the primitive intention of the sovereign, that the expedition in question, having certainly been undertaken with full knowledge of the said decree, no objection can be drawn with any propriely from the general rules forbidding a retrospective action, nor even in this particular case, from the posterior date of the act in which the sovereign decides the question, since that act sprung from bis supreme wisdom, not as an interpretation of a doubtful point, but as a declaration of an anteriour and positive disposition.”
A distinction is here attempted to be taken between the interpretation of a doubtful point, and the declaration of an anteriour and positive rule. This distinction cannot be maintained; for if the rule had been positive, there would have been no occasion for the declaration; neither the minister of marine nor the council of prizes could have had any doubts on the subject; the execution of the decree would have been prompt and peremptory, nor would a second act on the part of his majesty, after the lapse of twelve months, have been necessary to give operation to the first. Need I appeal to your excellency's memory for the facts on which these remarks turn ?. You know that doubts did exist; you know that there was under them even much hesitation in pronouncing; you know that as late as the 9th of August, I sought an explanation of the decree in question, and that even then your excellency (who was surely a competent and legitimate organ of his majesty) did not think yourself prepared to give it. The conclusion is inevitable; his majesty's answer transmitted to the court of Paris, on the 18th of September following, through the medium of the grand judge, was in the nature of an interpretation, and being so, could not without possessing a retroactive quality, apply to events many months anteriour in date to itself.
The 4th reason of the council, and the last which enters into my present view of the subject, is,-" That though one of the principal agents of his majesty had given a con. trary opinion, of which the council had at no period partaken, this opinion being that of an individual, could not (whatever consideration its author may merit,) balance the formal declaration given in the name of his majesty himself, and that if the communication of this opinion had, as is alleged, given room to and served as a basis for many American shipments, and particularly of the one in question, this circumstance, which may call for the indulgence of his majesty, in a case in which the confiscation is entirely to the advantage of the state, does not prevent a council, rigid in its duty, to pronounce in conformity to the decrec of the 21st of November, and of the declaration which fol. lowed it."
It would appear from this paragraph, that, not finding it easy to untie the knot, the council had determined to cut it. Pressed by the fact, that an interpretation of the decree had been given by a minister of his majesty, specially charged with its execution, they would now escape from this fact, and from the conclusions to which it evidently leads, by alleging,
1st. That at no time had the council partaken of the opinion given by the minister; and
2d. That this opinion, being that of an individual, could not possess either the force or the authority of one truly ministerial.
It appears to me, as I think it will to your excellency, that the council have, in these statements, been less correct than is usual to them on similar occasions, if, as they now assert, they have never partaken of the minister's opinion. If they have never even hesitated on the question, whether the decree of November did, or did not derogate from the treaty of 1800. Why, I ask, suspend the American cases generally? Or why decide as they did in the case of the Hibernia ? If I mistake not we find in this case the recognition of the very principle laid down by the minister of marine; that officer says, “In my opinion the November decree does not work any change in the rules at present observed with respect to neutral commerce, and consequently none in the convention of the 8th Vindemiaire, year 9." And what says the council ? “ Admitting that this part of the cargo (the rum and ginger) was of British origin, the dispositions of the November decree, which contain nothing with regard to their own influence over the convention of the 8th Vindemiaire, year 9, evidently cannot be applied to a ship leaving America on the 6th of the same month of November, and of course cannot have authorized her capture in the moment she was entering the neutral port of her destination." We have here three distinct grounds of exemption from the effects of the November decree.
1st. The entire silence of that decree with regard to its own influence over the convention of 1800.
2d. The early period at which the ship left the United States, and * 3d. The neutral character of the port to which she was destined. If such, sir, were the principles admitted by the eouncil of the 25th March last, with what correctness can it be now said “ that at no period have they partaken of the opinion of the minister ?"
The second fact asserted by the council is, that the interpretation of the decree in question, given on the 24th of December, 1806, was private, not publick, or in other words, that it was the interpretation of the man, not that of the minister, and as such cannot outweigh the more recent declaration coming directly from his majesty himself. On the comparative weight of these declarations I shall say nothing, nor shall I do more to repel the first part of the insinuation that the minister's declaration was that only of the individual) than to submit to your excellency my letter of the 20th of December, 1806, claiming from that minister an official interpretation of the decree in question, and his answer of the 24th of the same month, giving to me the interpretation demanded.
To your excellency, who, as late as the 21st of August last, considered the minister of marine as the natural organ of his majesty's will, in whatever regarded the decree aforesaid, and who actually applied to him for information relating to it, this allegation of the council of prizes, and the reasoning founded upon it, cannot but appear very extraordinary, and will justify me in requesting that his majesty, may be moved to set aside the decision in question. I beg, &c. &c.
J. ARMSTRONG. His Excellency the Minister of Foreign Relations.
Letter from the Minister of Foreign Relations of the 21st
of August, 1807, referred to in the preceding letter. Monsieur,—J'ai reçu la lettre que vous m'avez fait l'honneur de m'adresser le 9 de ce mois relativement à des bâtimens Americains conduits dans les ports d'Espagne par suite des dispositions que cette puissance a prises contre le commerce Anglais, à l'exemple de la France.
Comme l'execution des mesures maritimes indiquées par le décrêt impérial du 21 Novembre, 1806, appartient naturellement à son excellence le ministre de la marine et que d'ailleurs il a déjà en l'honneur des vous adresser de prémieres observations sur l'application de ce décrêt, je me , suis empressé de lui transmettre votre lettre, et de lui demander les nouvelles explications que vous pouvez desirer. Des qu'elles m'auront été adressées, j'aurai l'honneur de vous en donner connaissance. Agréez, M. l'assurance de ma haute consideration.
CHAMPAGNY. Son Ex. le Gen. Armstrong.
Sir, I have received the letter which you did me the honour of addressing me on the 9th of this month, relative to American vessels carried into ports of Spain, in consequence of the measures taken by that power against the English commerce in imitation of France.