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The general terms too in which this decree is conceived, threat, ened but too certainly the mifchiefs it has generated, and the abuses which have been practifed under it. Neutrals are to be treated as they fhall permit the English to treat them. No rule extracted from the practice of England is laid down, which might govern the cruifers of France, or inftruct the veffels of neutrals. No principles are ftated manifefting the opinion entertained of the treatment received from England, which might enable a neutral to controvert that opinion, and to fhow that the English were not permitted to treat its flag as was fuppofed by the government of France. To judge from the decree itfelf, from any information given concerning it, or from the practice under it, those who were to be benefited by its abufe were to decide in what manner it should be executed; and the cruifer who fhould fall in with a valuable veffel had only to confult his own rapacity, in order to determine whether an English privateer, meeting a vessel under fimilar circumftances, would capture and bring her into port. Multiplied exceffes, and accumulated vexations, could not but have been apprehended from fuch a decree; and the fact has realized every fear that was entertained concerning it. It has been conftrued even in Europe to authorize the capture and condemnation of American veffels for the fingle circumftance of their being deftined for a British port. At no period of the war has Britain undertaken to exercife fuch a power. At no period of the war has the afferted fuch a right. It is a power which proftrates every principle of national fovereignty, and to which no nation can fubmit, without relinquishing at the fame time its best interefts, and facrificing its deareft rights. The power has been i exercifed by France on the rich and unprotected commerce of an ally, on the prefumption that that ally was fuftaining the fame injuries from Britain, at a time when it is believed that the depredations of that nation had ceafed, and the principle of compenfating for them had been recognised.

In the West Indies fimilar depredations have been experienced. On the 1st of Auguft 1796, the fpecial agents of the Executive Directory to the Windward Islands decreed, that all veffels loaded with contraband fhould be feized and confifcated for the benefit of the captors.

On the 7th Frimaire, 5th year of the French republic, one and indivifible (27th November 1796), the commiffion delegated by the French republic to the Leeward Iflands refolved that the captains of French national veffels and privateers are authorized to ftop and bring into the ports of the colony American veffels bound to English ports, or coming from the faid ports.

On the 19th Pluviofe, 5th year of the French republic, one and indivifible (February ift, 1797), Victor Hugues and Lebás, the special agents of the Executive Directory to the Wind

ward

ward Islands, paffed a decree, fubjecting to capture and confifcation neutral veffels deftined for the Windward and Leeward Islands of America delivered up to the English, and occupied and defended by the emigrants. Thefe ports are faid to be Martinico, St. Lucie, Tobago, Demerara, Berbice, Effequibo, Port-auPrince, St. Mark's, l'Archaye, and Jeremie. The decree alfo fubjects to capture all veffels which have cleared out for the Weft Indies generally.

The underligned will not detain you, Citizen Minister, for the purpofe of proving how directly and openly these decrees violate both the law of nations and the treaty between France and the United States.

They have been executed on the officers and crews of the captured veffels in a manner by no means calculated to mitigate their rigour.

The decree of the 14th of Meffidor was foon followed by another which has fpared but little of the American commerce, except what has fortunately efcaped the purfuit of the cruifers of France. On the 12th Ventofe, 5th year (2d March 1797), the Executive Directory, confidering the treaty of amity, commerce, and navigation, concluded at London the 19th November 1794, between the faid United States and England, as containing conceffions of privilege to Britain, which, under the treaty of February 1778, might be enjoyed by this republic alfo, proceeds to modify the treaty between France and the United States, by declaring enemies goods in American bottoms liable to capture and confifcation, by enlarging the lift of contraband, and by subjecting to punishment as a pirate any American citizen holding a commiffion given by the enemies of France, as well as every feaman of that nation, making a part of the crew of enemies fhips. The decree next proceeds to exact from American fhips, papers which had been made neceffary to establish the neutrality of foreign veffels generally by the ordinance of the 26th of July 1778, but which had never been confidered as applying to the United States, which required papers their veffels could not be supposed to poffefs, and which the treaty between the two nations was fupposed to have rendered unneceffary.

The bafis taken by the Executive Directory, on which to rest their modification of the treaty of the 6th of February 1778, is, that by the treaty of the 19th of November 1794, particular favours in refpect of commerce and navigation have been granted to England.

It has been demonftrated that no particular favours in respect of commerce or navigation have been granted to England. That treaty has been shown only to recognife, regulate, and moderate the exercife of the rights before poffeffed, and before openly acknowledged to be poffeffed-rights which France and America had

reciprocally

reciprocally ceded to each other, without requiring, as a condition of the ceffion, that either should compel England to form a fimilar ftipulation.

But to admit for a moment that the treaty with England might be confidered as ftipulating favours not before poffeffed, yet the American government did not fo understand that treaty, and had manifested a difpofition to modify, by common confent, its relations with this republic, in fuch a manner as to reinftate a rule which has been voluntarily changed. It cannot but be fincerely regretted, because it seemed to indicate an unfriendly temper, that France has deemed it more eligible to establish by force, in oppofition to her treaty, a principle which the deemed convenient, than to fix that principle on the fair bafis of mutual and amicable agreement.

But the claufe under which thefe modifications are juftified is in thefe words: The Moft Chriftian King and the United States engage mutually not to grant any particular favour to other nations,. in refpect of commerce and navigation, which fhall not immediately become common to the other party, who shall enjoy the fame favour freely, if the conceffion was freely made, or on allowing the fame compenfation, if the conceflion was conditional." If these ftipulations unequivocally amounted to the grant of favours, ftill the grant is not gratuitous. The conceffions on the part of the United States are made on condition of fimilar conceffions on the part of Britain. If, therefore, France chooses to confider them a modifications of the treaty of 1778, the can only do it by granting the reciprocal condition; on this fuppofition fhe has either of the rules at her election, but the cannot vary from the first without the compact on her part to grant the reciprocal ftipulation. Such a compact is in the nature of a national treaty.

But the rules laid down in the decree of the 12th Ventofe, 5th year (March 2d, 1797), as founded on the 17th, 18th, and 21ft articles of the treaty of the 19th of November 1794, are materially variant from thofe articles. To demonftrate this it is only neceffary to contraft the rules of the decree with the articles of the treaty on which those rules are faid to be founded.

Articles of the Treaty of the 19th November 1794, as quoted by the Directory.

Art. 17. "It is agreed that in all cafes where veffels fhall be captured or detained on just suspicion of having on board enemies property, or of carrying to the enemy any of the articles which are contraband of war, the faid veffels fhall be brought to the nearest or moft convenient port; and if any property of an enemy should be found on board fuch veffel, that part only which belongs to the enemy fhall be made prize, and the veffel fhall be at liberty to

1

proceed

proceed with the remainder without any impediment. And it is agreed that all proper meafures fhall be taken to prevent delay in deciding the cafes of fhips or cargoes fo brought for adjudication; and in the payment or recovery of any indemnification adjudged or agreed to be paid to the owners or mafters of fuch fhips."

Rules ftablished by the Arrite of the Directory.

Rule 1. " According to the feventeenth article of the treaty of London, of the 19th of November 1794, all merchandise of the enemy, or merchandife not fufficiently proved to be neutral, laden under the American flag, fhall be confifcated, but the veffel on board of which it fhall be found, fhall be releafed and restored to the owner. It is enjoined on the commiffaries of the Executive Directory to accelerate by all the means in their power the decifion of contefts which fhall arife either on the validity of the prize-cargo, or on the freight and demurrage."

According to the article, when on just fufpicion of having on board enemies property, or of carrying to the enemy contraband of war, a veffel fhall be brought into port, that part only which belongs to the enemy fhall be made prize, according to the article: then the fact, whether the property does or does not belong to an enemy is to be fairly tried. The party who would cftablish the fact must prove it. The captor must show the justice of the fulpicion on which the capture or detention was founded. The bur den of the proof refts on him. If in truth and in fact the pro perty does not belong to an enemy, or is not proved to belong to an enemy, it must be difcharged. But the rule purfues a different courfe. The rule declares that merchandise of the enemy, or not fufficiently proved to be neutral, laden under the American flag, fhall be confifcated. The burden of the proof is fhifted from the captor to the captured. The queftion to be tried is not folely, whether the merchandise be in fact the property of an enemy, but alfo whether it be fufficiently proved to be neutral. The fufficiency of this proof is to be afcertained, not by general and fatisfactory teftimony, not by the great principle of truth and the common understanding of mankind, but by the exhibition of certain papers demandable at the will of one of the parties, and in the poffeffion of the other. This may be a regulation which France chooses to establish; but certainly it is a regulation effentially variant from the article it profeffes to resemble.

Art. 18. In order to regulate what is in future to be esteemed contraband of war, it is agreed that under the faid denomination fhall be comprised all arms and implements ferving for the purposes of war, by land or by fea; as cannon, mufkets, mortars, petards, bombs, grenades, carcaffes, faucifles, carriages for cannon, mufket refts, bandoliers, gunpowder, match, faltpetre, ball,

pikes,

pikes, fwords, head-pieces, cuiraffes, halberts, lances, javelins, horfe furniture, holfters, belts, and generally all other implements of war; as alfo timber for fhip-building, tar, or rofin, copper in fheets, fails, hemp, and cordage, and generally whatever may ferve directly to the equipment of veffels, unwrought iron and firplank only excepted."

Rule 2. " According to the eighteenth article of the treaty of London, of the 19th of November 1794, to the articles declared contraband by the twenty-fourth article of the treaty of the 6th of February 1778, are added the following articles:

"Timber for fhip-building, pitch, tar, and rofin, copper in fheets, fails, hemp, and cordage, and every thing which ferves directly or indirectly for the armament and equipment of veffels, unwrought iron and fir planks excepted. Thefe feveral articles shall be confifcated whenever they fhall be deftined or attempted to be carried to the enemy."

The immenfe number of articles, which may ferve indirectly for the armament and equipment of veffels, are made contraband by the rule of the Directory, though they are not fo by the article it profeffes to cite.

Art. 21. "It is likewife agreed that the fubjects and citizens of the two nations shall not do any acts of hoftility or violence against each other, nor accept commiffions or inftructions fo to act from.. any foreign prince or state enemies to the party; nor shall the enemies of one of the parties be permitted to invite or endeavour to inlift in their military service any of the subjects or citizens of the other party; and the laws against all fuch offences and aggreffions fhall be punctually executed. And if any subject or citizen of the faid parties refpectively fhall accept any foreign commiflion or letters of marque for arming any veffel to act as a privateer against the other party, it is hereby declared to be lawful for the faid party to treat and punish the faid fubject or citizen having fuch commiffion or letters of marque as a pirate."

Rule 3. "According to the twenty-firft article of the treaty of London, of the 19th of November 1794, every individual known to be an American, who fhall hold a commiffion given by the enemies of France, as well as every feaman of that nation, making a part of the crew of enemies fhips, fhall by that act be declared a pirate, and treated as fuch, without being allowed in any cafe to allege that he was forced to do it by violence, menaces, or otherwife."

The government of the United States has never formed a treaty comprehending an article in any degree fimilar to this rule. It has never affented to fuch ftipulations as they relate to its own citizens, or required them as they relate to thofe of other powers. The difference between the article and the rule requires no comment. Nor will the rule be commented on. The underfigned will only VOL. VII. obferve,

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