HIGH COURT OF ADMIRALTY.

July, 1812.

Judgment in the case of The Snipe.

SIR W. SCOTT pronounced the judgment of the court in the case of the American ship Snipe, the arguments upon which lasted several days. The journalist we copy expresses his regret that he is enabled to give but a feint sketch of the very luminous and eloquent speech of the learned judge on this occasion.

He began by stating, that, sensible of the great importance of the decision in this case, the principle of which involved several other cases of capture under the orders in council, before the 20th of May, 1812, he had directed his utmost attention to the arguments which had been urged with great zeal and ability on both sides, and was now prepared to give his judgment. The captors had contended that the ship was liable to condemnation under the orders in council, she having been taken on the 28th of March last, entering the river of Bordeaux; while on the other hand the claimants contended that those orders in council had ceased to operate before the capture, on account of a French decree, bearing date the 28th of April, 1811, having repealed the Berlin and Milan decrees, to which those orders had only been retaliatory measures, which the British government were pledged to annul from the date of the repeal of the French decrees. Without feeling it necessary to dwell minutely on the history of all those transactions, he should state generally, that in November, 1806, the ruler of France published, in the most solemn and authentick manner, his Berlin decree, by which all neutrals trading to these countries were liable to capture. In January, and November, 1807, the British government published its retaliatory 'orders, which were not a full and complete retaliation, but which were founded on principles which appeared to him consistent No. XIV.

with those of justice and the law of nations. This was followed by the Milan decree of the enemy, denationalizing all vessels which submitted to our orders in council, or to be visited by British cruisers. In April, 1809, another modification of our retaliatory measures took place in new orders in council; and in March, 1809, America passed a non-intercourse act, both against France and this country; declaring, however, that it should be annulled with respect to either of the powers that should repeal those instruments of which it complained. In consequence of this, M. Champagny, (the duke of Cadore) wrote a letter to general Armstrong, 5th August, 1810, informing him that those decrees were repealed, and would cease to operate against American commerce on the 1st of November, in that year, accompanying this notification with the condition, "that it was to be understood that England also should abandon her orders in council, and her new principles of blockade." This notification was considered by the American government as a repeal, and she in consequence repealed her non-intercourse act as with respect to France. This letter had been contended to amount to a repeal of the decrees, in the arguments on the case of the ship Fox; but in the decision of that case, he had not considered it as a repeal. Since that time, on the 10th of March, in the present year, the duke of Bassano, in a state paper, published in an official manner, spoke of the Berlin and Milan decrees as still existing in full force, calling them fundamental laws of the French empire, and boasting of their powerful operation against the commerce and prosperity of this country. On the 21st of April, the British government published a declaration, offering to annul the orders in council, from the day that the French government, should by a subsequent decree, repeal the Berlin and Milan decrees; and on the 20th of May they received from the American minister a paper purporting to be a copy of a French decree of that import, but bearing date the 28th of April, 1811. The British government, not recognizing the authenticity of this document, but wishing to conciliate America, did, on the 22d of June last, issue a declaration repealing the orders in council from the 20th of May. As to captures made prior to the 20th of May, to which this case belonged, this declaration was silent. It left them to the effect of the prior declaration of April, which, consistently with the general law of

nations, rested on the principle of retaliation. As the claimants now contended that the Berlin and Milan decrees were actually repealed by the French decree of 1811, it was for them to prove that those decrees were so repealed, and that they were repealed in such a manner as to impose an obligation on other nations to take notice of such a repeal. This sort of evidence, which was only to be got in the enemy's country, was perfectly accessible to the claimants (if any such evidence existed,) but was not accessible to the captors. The Berlin and Milan decrees had been ushered into the world with the greatest solemnity, and published in the French official papers. There was no one who could doubt their existence and authenticity. If those decrees were intended to be repealed why were they not repealed in a manner equally authentick and official? In the month of March last, they were, however, officially spoken of by the French government as not only being in existence, but as fundamental laws of the empire. If that word carried any meaning, it must imply that the French government would not abandon those decrees. Those decrees had been promulgated to the world in the most authentick and publick manner; and if there had been any intention of repealing them, it might be expected on every principle of good faith and honest policy, that the revocation should be made equally publick to all those whom it might concern. The rule was always decretum non obligat, sed promulgatio. This instrument should appear in such a shape as not to falsify itself, or carry a fraud upon the face of it.-If its promulgation was not a matter of notoriety, but wrapped up in obscurity, it ceased to be a publication. There was no ordinary occasion, in the transactions of life, in which an instrument, having fraud and falsehood on the face of it, would be allowed to have any operation in a court of law. The letter of the duke of Cadore, dated the 5th of August, 1810, began by stating. "he was authorized to declare the Berlin and Milan decrees at an end." These words were general; but afterwards came the condition, it being understood that Great Britain will repeal her orders in council and her new principles of blockade, or that neutral nations will cause their flag to be respected." A letter merely promising the repeal of those decrees, under certain qualifications and conditions, could never be considered an actual revocation. If any decree for repealing the Ber

lin and Milan decrees was ever issued, why was it not published to the world in the same authentick manner that those decrees were? or why, when it was so often called for, both by our government and the American ministers, was not such a decree produced, or any evidence procured of its existence? Surely nothing could be more reasonable, than the demand for such evidence on the part of the American ministers. The revocation was held out as a boon to America; and when the fate of so much American property depended on the proof of the existence of this revocation, why was not this proof furnished, if it really existed? If it had existed, nothing would have been easier than to produce it. It must have existed in an hundred quarters.-in general directions to prize-courts-in the instructions to French cruisers-and in a variety of modes which would be easily proved. No proof of that sort was ever attempted. When the case of The Fox came to be argued in the year 1811, the claimants did not attempt to set up any other case except the duke of Cadore's letter, and the opinion of the American government that this letter amounted to a revocation as far as America was concerned. The opinion of the American government would, no doubt, regulate their practice; but it was no evidence to determine him, sitting in a court of law, to say that letter amounted to a repeal of the Berlin and Milan decrees. The claimants in that case were allowed abundant time to procure evidence; and if they could have procured any evidence sufficient to satisfy the judicial conscience of the court that those decrees were repealed, he had no doubt but that such evidence would have satisfied the British government. No evidence had been given of any practice which could induce a belief that the decrees even with respect to America, had been revoked at the time mentioned in the duke of Cadore's letter. On the contrary, there was the letter of Mr. Russel, the American minister at Paris, dated in May 1811, which stated, "That no ship brought into the ports of France since the first of November, 1810, had either been released or brought to trial." If the Orleans Packet was afterwards released, still he should ask, how could it happen that that vessel should be seized at Bordeaux some months after the orders were said to be revoked, and detained for such a considerable time, if ever any revocation of those decrees had been made publick? What would be said in this

country, if two months after the repeal of our orders in council, an American ship were to be seized under them at Liverpool, and detained for many months? The thing was almost impossible. If such a seizure were to take place here, the owners would immediately know that they were entitled not only to restitution, but to damages for the detention, and costs. The captors would also know it immediately and would be advised to lose no time in offering satisfaction. If the decrees were really revoked, it appeared to him absolutely impossible that such revocation should not have been known at Bordeaux, or that it should have required such a length of time to determine on those cases.

In March, 1812, the duke of Bassano mentioned in an official paper, that "the Berlin and Milan decrees were in full force, and that they were fundamental laws of the empire." In this assertion there was no exemption stated with respect to America, although that is now by far the most considerable, if not the only neutral power, likely to be affected by them. By his majesty's declaration of the 21st of April, the court was empowered to receive evidence from the claimants themselves of the repeal of those decrees, if they could procure any evidence to that effect. By the order of the 23d of June, the British government revoked the orders in council, and annulled their operation from the 20th of May last, leaving all the cases of capture before that period to the operation of the law.-The British government, however, by no means recognized the authenticity of the instrument put into their hands on the 20th of May, or acknowledged that paper as a bona fide decree of repeal, bearing the date prefixed to it; but revoked the orders in council, as a measure of conciliation to America. The date of this paper was neither subsequent to his majesty's declaration of the 21st of April, nor had it been publickly promulgated, nor had it been acted upon. To meet the terms of the declaration, it ought to have been a repeal of the Berlin and Milan decrees generally, and not merely with respect to America. It ought to have been unconditional, and its authenticity regularly proved. This was, in fact, the title-deed under which the parties claimed, and its authenticity was, therefore, the first thing to be proved by them. The usual proofs of authenticity were either internal good faith or external legitimacy.What was the external proof? This document had never been