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themselves in the fraud of the enemy, or in the misappre. hensions of the American government induced by the fraud of the enemy, they found no claim on the British government or on British tribunals. In the one case they must resort for redress to a quarter where, I fear it is not to be found-to the government of the enemy: in the other, where, I presume, it is to be found to the government of their own country.
Upon the declaration of the American government I have already said as much as consists with the respect which I am bound to pay to the declaration of a foreign government, professedly neutral. The custombouses of that country, say the claimants, cleared us out for France publickly, and without reserve. They did so ; but they left the claimants to pursue all requisite measures for their own security, in expectation I presume, that they would inform themselves, by legal inquiry, whether the blockade continued to exist, if its continuance was uncertain. That it was perfectly uncertain in their own apprebensions, is clear from the tenour of these letters of instructions to the different masters of these vessels. In these letters, which are numerous, all is problematical between bope and fear ; a contest between the desire of getting first to a tempting market on the one side, and the possible hazard of British capture on the other ; and it is to be regretted that the eagerness of mercantile speculation has prevailed over the sense of danger. In such a state of mind, acting upon circumstances, the party must 'understand that he takes the cbance of events-of advantage, if the event which he hopes for has taken place, and of loss if it has not. It is his own adventure, and he must take profit or loss as the event may throw it upon. He cannot take the advantage without the hazard of loss, unless by resorting to British ports in the channel, where certain information may be obiained, on the truth of which all prospects of loss or profit may safely be suspended. On the British government no responsibility can be charged. They were bound to revoke as soon as they were satisfied of the sincere revocation of the French decrees. Such satisfaction they have not signified, and I am bound to presume that no such satisfaction is felt. With respect to the demand of warning, the orders theinselves are full warning. They are the most formal admonitions that could
till proceed to an ultimate aimants discharged.
be given ; and being given and unrevoked, they require no subsidiary notice.
On the grounds of the present evidence, I therefore see no reason to hold the claimants discharged ; but I do not proceed to an ultimate decision upon their interests, till I see the effect of that additional evidence which is promised to be produced upon the fact of the French retractation of their decrees, said to have been very recent. ly received from Paris, by the American charge d'affaires in this country. Having no official means of communication with foreign ministers, I shall hope to receive the information in a regular manner, through the transmission of the British officers of state.
Final adjudication suspended.
Extract of a Lelter from J. S. Smith, Esq. to the Sec
retary of State. London, June 16, 1811. “On the 91b inst, the day after Mr. Hamilton left towa with my despatches, I received the enclosed note from lord Wellesley, appointing Tuesday the 11th to see me at his house. Timmediately wrote to captain Dent, to detain the frigate, until he heard from me again, but he had gone to sea before my letter reached Cowes, and I am now compelled to send this by another opportunity. · "I waited on lord Wellesley, according to his appointment. He commenced the conversation by observing that, whenever there was any thing of importance to be communicated, it was better to do it in writing, as when merely verbal it was liable to be misunderstood ; that he did not mean any thing personal to me; that the same rule was observed by the other foreign agents here, and was customary. I replied that I was ready to pursue this system; that in the note which I bad written bim, enclosing the non-importation act, I had not gone into a lengthy discussion, as that whatever I might say would be only a recapitulation of what had so often been written. I however proceeded to explain the new act, and to remark to him the particularly amicable nature of the second section of it; that I conceived this to be a most favourable opportunity for Great Britain to abandon her system of restrictions; and particularly at this moment, when I had communicated practical instances of the repeal of the obnoxious measures of France. He said that he did not think they would do any thing before they heard from Mr. Foster, who had full instructions upon this, and the other points in dispute.
“ I turned the conversation to the subject of your letter of the 22d of January, and asked him if Mr. Pinkney bad given any explanations about the taking possession of West Florida. He replied, that the first he had heard of it, was through Mr. Morier, though he had reason to expect something from Mr. Pinkney; that Mr. Foster, however, was instructed on this point. I asked if East Florida was included in these instructions? He replied that it was. I then communicated to him the substance of your letter, and explained with frankness the intentions of the United States. He expressed his wish that this, as well as the other subjects, should lay over until they heard from America.
" I showed him the letter of the President to his majes. ty, containing Mr. Pinkney's permission to returo. He said, that it would be proper that I should write him a note, enclosing this letter, and requesting him to present it to the prince regent.
“ The vessels detained here under the orders in council, have not yet been finally condemned, and I represented to lord Wellesley how important it was, that they should be released, or that they should be still suspended. He said that he desired it also, but that private rights being concerned, it was difficult for government to interfere for their longer suspension. I am induced to believe that they will wait until they hear from Mr. Foster.”
Extract of a Letter from John Spear. Smith, Esq. to the
Secretary of State of the United States. London, June 27, 1811.
" I have the honour to enclose a copy of the final de. cision of sir William Scott, in the case of the Fox and others.
“ The court, on Tuesday last, the 25th inst. condemned the remaining American vessels captured under the otders in council. As soon as I can procure a correct list of
them, I will have the honour to forward it. The seamen, who are lest destitute by these condemnations, will be taken care of by general Lyman. They are of course numerous.”
Sir William Scott's Sentence in the Case of the Fox, &c. &c.
JUDGMENT RESUMED. SIR WILLIAM Scott. As the claimants have failed to prodoce any evidence of the revocation of the French decrees, aud have nothing to offer as the foundation of a demand for further time, I must conform to what I declar. ed on a former day, and proceed to make the decree effectual. I should certainly have been extremely glad to have received any authentick information tending to show that the decrees of France, to which these orders in cohacil are retaliatory, had been revoked; and it was upon a suggestion offered on the part of the claimanis, that despatches bad been very recently received from Paris by the American minister in this country, by which the fact might be ascertained, that the court on the former day deferred its final judgment. It would have been unwilling to proceed to the condemnation of these vessels, without giring the proprietors the opportunity of showing that the French decrees, on which our orders in council are found. ed, had been revoked. But they admit that they have no such evidence to produce ; the property of the ships and cargoes is daily deteriorating, and it is my duty to de lay no longer the judgment which is called for on the part of the captors.
From every thing that must have preceded, and from every thing that must have followed the revocation of the French decrees, if such revocation had taken place, I think I am justified in pronouncing that no such event has ever occurred. The only document referred to on behalf of ibe claimants is the letter of the person styling himself duc de Cadore. That letter is nothing more than a conditional revocation : it contains an alternative proposed, either that Great Britain shall not only revoke her orders in council, but likewise renounce her principles of blockade, principles founded upon the ancient and established
law of nations ; or that America shall cause her neutral rights to be respected ; in otber words, that she shall join Frapce in a compulsive confederation against this country. It is quite impossible that England should renounce her principles of blockade to adopt the new fangled principles of the French government, which are absolute novelties in the law of nations ; and I hope it is equally impossible that America should lend herself to an hostile attempt to compel this country to renounce those principles on which it bas acted, in perfect conformity to ancient practice and the known law of nations, upon the mere deinand of the person holding the government of France. The casus fæderus therefore, if it may be so called, does not exist; the conditions on which alone France holds out a prospect of retracting the decrees, neither are nor can be fulfilled. Looking at the question therefore, a priori, it cannot be presumed that the revocation bas passed. On the other hand, what must have followed if such had been the fact? Why, that the American minister in this country must have been in possession of most decisive evidence upon the subject; for I cannot but suppose that tbe first step of the American minister at Paris would have been to apprize the American minister at this court, of so momentous a circumstance, with a view to protect the American ships and cargoes which had been brought in under the British orders in council. If no such information has been received by him, there never was a case in which the rule “De non apparentibus et non existentibus eadem est ratio" can more satisfactorily apply. For it is quite impossible that such a revocation can have taken place without being attended with a clear demonstration of evidence that such was the fact
I am, therefore, upon every view of the case, of opinion, that the French decrees are at this moment unrevoked. But if by any possibility it can have happened that an actual revocation has taken place against the manifest import of the only publick Frencb declaration referred to, and without baving been yet communicated to the American minister in this country, who was so much concerned to know it, for the benefit of the persons for wbose protection it must have been principally meant ; the parties will have the advantage of the fact if they can show