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enemy or as a pirate, if one is not the bearer of a commission or tiile capable of doing away all suspicions *.
But defence is of natural right, and the means of defence are legitimate in sea voyages as in all the other perilous occurrences of life.
A ship having a small crew, and whose cargo of merchandise was of considerable value, was evidently veitined for commerce and not for war. The arıs found or board in this ship were, not to exercise hoftilities and rapine, but to prevent them; not to attack, but to defend. The pretext of her being armed for war cannot then appear to me well founded.
I proceed to the examination of the second charge made against the captors, the want of a role d'equipage drawn up by the public officers of the place from which the ship departed.
I do not think it necessary to enter in this case into all the questions agitated. I know that, in general, conventions between nations ought to be faithfully adhered to. But I also know that there being no common tribunal to which different nations can carry their respective complaints, and denounce violations of treaties, each government who thinks itself aggrieved by another government, neighbouring, neutral, or allied, is authorized to remain judge in its own cause, and to take such measures as it may think useful for its safety. It would then be absurd and dangerous to determine what a government can or cannot do when a case of self-preservation occurs.
In order to inaintain the validity of the prize, the captors refer to the regulation of the 2ist of October 1744, of the 20th July 1778, and the arreté of the Directory of the 12th Ventose, year 5, which require a role d'equipage.
The captured on their lide refer to the treaty of commerce concluded between France and the United States on the 6th of February 2778; they allert that general regulations cannot be derogatory to a particular treaty, and that the Directory could not infringe that treaty by an arbitrary will.
In point of fact, it is certain that the regulations of 1744 and 1788, and the arreté of the Directory, do require a role d'equipage drawn up by the public officers of the place from which ihips depart. It is another fact, that the role d'equipage is not mentioned in the treaty of the 6th February 1778, between France and the United States, among the papers necessary to establish neutrality. But I do not think it is necessary to examine whether the treaty ought to have more force than the regulations, or whether the regulations ouglit to prevail over the treaty.
Art. 4 and 5 of the Title of Prizes of the Ordonnance of the Marine of 1681,
I lay it down as a principle, that all questions of neutrality are questions of good faith, in which we muit have regard to the bortom of things, and weigh the facts, without pauling at vain appearances.
The neutrality must be proved; hence the Ordonnance of the Marine of 1681, article 6, states—«« Shall be good prizes all hips with their cargo, in which there shall not be found charterparties, accounts, and manifestocs.” It is in this same point of view that the regulations of 1744 and 1778 oblige malters of neutral ships to prove at sea their neutral property by passports, and other papers on board.
The regulation of 1744, whose difpofitions have been restated by the arreté of the Directory, announces literally among the papers required in proof of the neutral property, a role d'equipage in good and due form.
But it would be an error to suppose, that the want of one of these papers, or the flightest irregularity in one of them, ought to lead to a declaration of the validity of a prize.
Sometimes papers are drawn up according to form, to conceal an enemy, which other circumstances disclote. On other occasions, the character of neutrality is seen, even though there be omillions or irregularities of form, which proceed from mere negligence, or which are founded upon motives foreign to every species of fraud.
We must seek for the truth; and in these matters, as in all others which are regulated not by facramental formulas, or by rigour, but by the principles of good faith, we must say with the law, that simple omission or irregularities of form cannot injure truth, if it be manifest by other things.--Et fi aliquid ex folemnibus deficiat, cum æquitas pofcit subveniendum eft.
Thus the regulation of the 26th of July 1778, art. 2, after having said that masters of neutral ships thall be required to juftify at sea their neutral property by passports and other papers, adds" one of which at least Mall ascertain the neutral property, or shall contain a precise enunciation of it.”
It is not necessary to justify the neutral property by the perfect concurrence of all the papers enumerated in the regulations. But it is sufficient, according to circumstances, that one of them should prove that property, if that one be not contradicted or contested by circumstances more decisive.
The eflentital thing is, upon every occasion, for the judge to be reasonably convinced that the property is neutral or is not.
It does not signify that, according to cases, the legislator may have thought it his duty to recommend more particularly the presentation of certain papers, and that he may have appeared to apply the declaration of good prize to every ship whose master cannot exhibit those papers; that severity of ihe legislature is not
and can never be more than comminatory. It remains always subordinate to the whole of the circumstances, which can alone operate conviction.
We have an example of what I established in the sixth article of the regulation of the 21st of O&tober 1744. By that article the legislator wills that every ship taken, of whatever nation, neutral, enemy, or ally, of which it shall be proved that there were papers thrown into the sea, be declared a good prize with her cargo, upon the sole proof of the papers having been thrown into the sea. 'Nothing more formal.
In latter times difficulties arose upon the manner of executing this rigorous disposition, which had been renewed by the dia claration of 1778.
On the 13th November 1799, the King wrote to the Admiral that he committed it entirely to him and the Commissaries of the Council of Prizes to apply the rigour of the ordonnances and the regulation of the 26th July, or to modify the dispositions of it, according as particular circumstances might appear to them to require.
An arreté of the Council of the 27th December in the fame year, in ihe case of Pierre Brandebourg, captain of the Swedish fhip Fortune, and the Sieur de la Roque Dourdan, commander of the Renard, released the prize, though papers had been thrown over board. It decided that, in order for the throwing of papers overboard to produce confiscation, it was necessary that they should be of a nature to afford proofs of being an enemy's property, and that the captain Chould have an interest in throwing his papers overboard; which was not the case with respect to the Swedish captain *.
The great principle then is, to decide according to the truth of Ihings.
The neutral property must be proved ; but may be proved-notwithstanding the omission or irregularity of some forms. On the orher hand, we may discover fraud, though it may be concealed under fair appearances. We ought to put aside all the thorns and fubtleties of sight, according to the energetic expression of an ancient ordonnance; we must proceed by good and mature deliberation, and look to it confcientiously.
Of what service would be declarations, interrogatories, informations, if every thing were confined to the examination of papers, if the duty of the judge were not to dive to the bottom, and if the parties had not the right of explaining by their declarations add their replies, those facts which may be obfcure, or to supply,
* New Code of Prizes, ad vol. p. 169, 170, and 171. + Ordonnance of the 4th Dec. 1400, art. 6, under the head of Admiralty.
by a detailed juftification, fuch papers as could not be brought, or the omission of which may be nothing but the effect of circumítances more or less imperious?
In the present case, without examining whether the American captains are or are not required to exhibit a role d'equipage, drawn up by the officers of the place of departure, I observe that that role is supplied by the passport, and that the captured prove the physical impossibility in which they were of procuring an inspection of their role d'equipage by the public officers of Philadelphia, because it was forbidden, under pain of death, to communicate with that city, in which the most terrible disorder raged, and that no' sailor or officer of a - ship in which the disorder had manifested itself, could communicate with the land. I add, that the passport, and all the papers on board, ascertain, in an evident manner, the neutral property of the ship and her cargo. None of these papers have ever been attacked.
All that we can conclude from the role d'equipage which is produced, not having been drawn up by the officers of the place of departure, is, that that paper is null and of no effect for the proof of the fact of neutrality, in the terms of the regulation of the 26th of July 1778. But if other regular papers prove the same fact, and if those papers are not contradicted by any presumption of fraud ; the character of neutrality cannot then fail to be recognised by the judge ; and this is proved in the present case, in which it was impossible to procure the role d'equipage in the form required, in which consequently no presumption of fraud can arise from this innocent and forced defect, and in which all the other circumstances supply in an efficacious manner that which is wanting.
The invalidity of the prize is then evident; that being ascere tained, it follows “ that all that has been taken from the captured ought to be restored either in kind or in equivalent.
With respect to the demand of damages and interest, the Commiffary contended that the demand was well founded, because the captors could not fairly entertain any suspicions against the Captain of the Pigou. The neutrality of the thip was demonstrated by her being American built, by her flag, by her destination, by her crew, all Americans, by the nature of the cargo, which had nothing contraband in it, by the name and character of Capt. Green, known for his services rendered to the French nation, by the act of property of the ship, by the passport, by all the papers on board; in short, by the place where the ship was taken, which excluded all idea of a suspicious destination.
Under these circumstances I conclude that the Council, doing juitice to the demand of John Green, captain of the American thip Pigon, should decide that full and entire main-levée should be given to John Green, or such other person as may be authorized
by him of the ship Pigou, her whule merchandise and argo in confequence, that every thing be restored to him, as well as the papers and packets on board. With respect to the demand of the said J. Green for damages and interest, I conclude that the said dainages and interest be adjudged to him, and the liquidation made according to law. Deliberate at Paris, 6 Prairial, year 8.
PORTALIS. Decision of the Council. Having heard the report of Citizen Barennes, and seen and considered every thing, the Council, admitting the claim of John Green, captain of the American fhip Pigou, acting by Henry L. Waddell, fupercargo and part owner of the said ship, without allowing the judgment of the 25 Ventose, year 7, by the Tribunal of Appeal of Morbihan, nor that of the Tribunal of Commerce of L'Orient of the 8th of the same month, decide, that the capture of the said ship and her cargo is nult and of no effect; in consequence, they direct full and entire reftitution to the said John Green and all others proving their rights and title of the said Ainerican fhip the Pigou, her papers, effects, and merchandise, and order that every thing be given up to him, as well as the papers and packets on board. With respect to the demand of the said John Green of damages and interest for the loiles he may have suffered, and which he fhall prove, the Council adjudged to him the said damages and interest.
Done the 9th Prairial, 28th May 1800, year 8th of the
Citizen Redon, President,
Members of the Council of Prizes. In the name of the French republic, it is ordered to all huissiers to carry the present decision into execution, to all commanders and officers of the public force to lend their aid when they shall be legally required, and to the commissaries of government in the tribunals to give their assistance. The laid decision has been ligned by the President of the Council and the Reporter. (Signed)
* As the rights of neutral ships constitute a question of great interest, the above papers on the subject may be found of conliderable utility.