months. The principal powers of Europe, far from pro- His Excellency General ARMSTRONG, CHAMPAGNY. SIR, PARIS, NOV. 1807. It was not till yesterday that I received from Mr. Skipwith a copy of the decree of the council of prizes, in the case of the Horizon. This is the first unfriendly decision of that body under the decree of the 21st of November, 1806. In this case, and on the petition of the defendant, the court has recommended the restoration of the whole cargo. I did not, however, think proper to join in asking as a favour, what I believed myself entitled to as a right. I subjoin a copy of my note to the minister of foreign affairs. And am, sir, &c. (Signed) Mr. MADISON, &c. JOHN ARMSTRONG. PARIS, NOV. 12, 1807. SIR, THE document to which these observations are prefixed, will inform your excellency that an American ship, trading under the protection of the laws of nations, and of particular treaties, and suffering shipwreck on the coast of France, has recently been seized by his majesty's officers, and adjudged by his council of prizes, as follows, viz. “Our council puts at liberty the American vessel, the Horizon, shipwrecked the 30th of May last, near Morlaix, and consequently orders, that the amount of the sale legal ly made of the wreck of the said vessel, together with the merchandise of the cargo, which, according to an estimate made in presence of the overseers of the administrations of the marine and custom house, shall be acknowledged not to proceed either from English manufactures or territory, shall be restored to captain Mac Clure, without deducting any other expenses but those relative to the sale." "And with regard to the other merchandise of the cargo, which, from the result of the said estimate, shall be acknowledged to come from manufactures or from English territory, by virtue of the 5th article of the decree of the 21st of November, 1806, they shall be confiscated for the use of the state. The whole to be sold by the forms prescribed in the regulations, and the application of the product to be made in conformity to the arrangements of the said decree, deduction being made for the expense of saving the goods, and that of the support of the crew, until the day that the captain shall receive the notification of the present decision." The reasons, upon which this decision is founded, are at once so new and so alarming to the present friendly relation of the two powers, that I cannot but discuss them with a freedom in some degree proportioned to my sense of their novelty and importance. "Considering," says the council, "that the neutrality of the ship and cargo were sufficiently established, the whole ought to be restored, (agreeably to the provisions of the convention of the 30th September, 1800,) provided no merchandise of English origin had been found in her, and of course, that she had not been brought within the limits of the impérial decree of the 21st of November, 1806." Here is an open and unqualified admission that the ship was found within the rules prescribed by the convention of 1800; that according to these rules, her cargo and herself ought to have been restored; and that such would have been the fact, but for the operation of the decrce of the 21st of November, 1806. In the letter your excelleney did me the honour to write me on the 7th of October last, you thought it "easy to reconcile the obligations of this decree with the preservation of those arising from treaties." It was not for me to examine the means by which this reconciliation was to be effected. 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 inculcates 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 na * VOL. III. *The Diana. 26 tions. 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 mation, 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 not 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 misfortune of shipwreck so far altered her condition, as to expose 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 impos sible. 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 updertaken with full knowledge of the said decree, no objec tion can be drawn with any propriety from the general rules for Ading 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 his supreme wisdom, not as an interpretation of a doubtful point, but as a declaration of an anteriour aud 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 degree 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 orgau of his majesty) did not think yourself prepared to give it. The conelusion 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 contrary 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 deeree of the 21st of November, and of the declaration which followed it." |