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case, restored the St. Johannes, together with the cargo ; and, as the claimant submits, the distinction which the captors and his Majesty's government made with regard to that veffel (a diftinction declared, at the time, to be understood as extending to all the fhips bound to Portugal), evinces, in the clearest and most incontrovertible manner, that, down to the 13th of October, neither his Majesty's government, nor the captors, considered the Swedish convoy, generally, to have made any such reliftance as would raise the present question ; but, from the 27th of June down to that time, a period of nearly four months, were proceeding against particular ships only, on the ground of their avowed or suspected destinations to hoftile ports, with cargoes of naval stores.
Reasons afligned by Appellant, 1. Because the vessel and cargo, being the undoubted property of Swedes, as claimed, the cargo confilting wholly of Swedish produce, and both documented according to treaty, were engaged in a fair, open, and legal trade.
2. Because, whatever may be the legal consequence, if forcible resistance be made by a merchant-thip to prevent visitation, no such resistance was made, or attempted to be made, by the vessel in question.
3. Because the right of visitation was not carried or attempted to be carried into execution, by the captors, in a manner confiftent either with the letter or spirit of the treaties between Great wrnain and Sweden, or the duties arising out of that right itself.
4. Because the Ship’s papers were immediately delivered on the first demand, which, however, did not take place until fix weeks after the capture.
5. Because the principles and authorities which subject private merchant-thips to search, do not, by any just analogy in law, apply to the situation of a fleet under convoy of a thip of war, specially appointed by the sovereign, and pledging the public faith of the state to which they belong.
6. Because, although there are many instances of vessels failing under convoy, fome even of an enemy, and others which have been taken after considerable resistance, and a formal engagement with the convoying ships, yet no precedent has been adduced, or can be adduced, of any vessel having been condemned on that account ; and many have been actually restored.
7. Because, from the date of the treaty of 1656, down to the present time, Sweden has been in the occasional practice of fending convoys, when she has been at peace and Great Britain at war ; and neither has any question in consequence been ever raised in any British court of justice, nor any remonftrance, fo far as appears, been ever made by the British government ; on the other hand, when Sweden has been at war, and Great Britain at peace, public
instructions have been issued to the Swedish cruisers to respect the word of every British vllicer, having the merchant-fhips of this country under his convny.
8. Because, in this initance, the convoying frigate was not appointer with any original purpose adverse to Great Britain, and did not make any actual refittance, though the commander seems ta liave been repeatedly provoked so to do.
9. Because, by the agreement of the British and Swedih commanders, the question, whatever it was, between the two counvies, was scíerred entire to the two courts.
10. Because ii.e cap:ors, and his Majesty's government, by their conduct towards the Swedish frigate, and the veliels under her convoy, bourd :o Porngal, have clearly admitted that the Swedish fleet was not seized and desaineri on account of any forcible sefistance, or any refusal to submit to visitation and search, but solely on grounds arising out of the nature of the cargoes and destination, which grounds have been abandoned in fact, and cannot be inaintained in law *.
Decision of the French Council of Prizes relative to the American Ship
Pigou. In the Name of the French Republic one and indivisible. THE Council of Prizes established by the arreté of the Consuls
of the 6th Germinal, year 8, in virtue of the law of the 26th Ventofe preceding, has come to the following decision :
Quality of the Parties.—Between John Green, of the ship Pigou, acting by the agency of Henry L. Waddell, supercargo and part proprietor of ihe said ship, on the one part, and the Commissary of the Government acting and being in the said quality, for the captains and crew of the frigates of the French republic Bravoure and Concorde, on the other part.
Visa the principal papers on board, consisting of the act of regifter, the pairport figned John Adams, the lift of the crew, the perinit of the custom-house at Chester, in the district of Philadelphia, and the accounts of piastres and other merchandise consigned to Henry L. Waddell and Thomas Wharton.
Vijis the proces verbaux of the capture, the instruction drawn up upon the arrival of the prize at L'Orient, in which instruction the captain, lieutenants, fupercargoes, and crew of the Pigou, unanimoufly declare, that the said ship was under the American flag bound to China, and navigated entirely by American sailors, and that the role d'equipage was drawn up at Philadelphia.
Visa the decision of the civil tribunal of the department of
This case is extracted from the pleadings in the cause, and the facts stated are all admitted on the part of the captors.
Morbihan, of the Tribunal of Commerce of L'Orient, and of the civil tribunal of the department, declaring the capture a legal capture, and condemning Captain Green to the expenses of the process.-Having seen also the memorial to the tribunal of Capotier presented by Captain Green.
Instructions drawn up to the Council. Having seen the memorial laid before the Council the 19th of last Floreal, by Henry L. Waddell, in which, after having given an account of the facts, and complained that no proces verbal of capture was drawn up at sea, that that pretended to have been drawn up un land, stated no pretence for the capture; and that immediately after the capture all the papers were not deposited in a chest or bag in presence of the captain, who ought to have sealed them with his seal, in obedience to the ad article of the law of the 26 Brumaire (year 4); the said H. L. Waddell endeavours to establish,
1. That the said ship the Pigou, though having on board ten cannon mounted, of different calibres, was not armed as a ship of war, because cannon are necessary both for salutes and signals of sailing and arrival, and for fignals of distress; because they are also necessary in the Asiatic seas, infested by pirates, who attack persons and property without distinction ; that with such a rich cargo as the Pigou it was not likely that the crew would run the risk of privateering; that with so sinall a crew she could not man the prizes se might make : from which it followed that the arms she had on board were only for defence, which is always permitted 10 Tips furnished with palsports; and that according to the ordonnance of 1681, it is necessary, in order that the carrying of arms on board a 'ship should lead to confiscation, that the who has thein Mould have them without acknowledging it, or should have fought by attacking; a charge which cannot be brought against the Pigou, which had a passport signed by the President of the United States, an act of property and sea letters, all announcing that there were ten cannon on board the Pigou, which, so far from attacking, had struck her flag on the first fire from the frigates.
2. That the role d'equipage was not obligatory for American ships by the treaty concluded the 6th February 1778, which, by the 25th and 28th articles, requires solely that they should be provided in case of war with sea letters or pallports, expressing the name, property, and ship's port, with the name and abode of the commissary of the thip, and the certificates concerning the detail and the cargo; and that by exhibiting these papers, and particularly the passport conformably to the formula annexed to the treaty, the stopping or molesting them is forbidden : that it is fruitless to cite the ordonnance of 1744, and the regulation of the 26th July 1778, as well as the arreté of the Directory of the Vol. X. С
12th Ventose, year 5, which could not render null a solemn treaty between iwo nations at peace, and obligatory upon both, because it does not belong to one party nor to one people to ex. change at their will a ftipulation made by common consent.
3. That the role d'equipage did exist on board the Pigou, though it was not necessary; that in truth it was not invested with all the requisite formalities; that is to say, with the fignature fo easy to be obtained, of two public officers, in ordinary times; but that the cause of this omission was to be found in the scourge that ravaged America, and, above all, Philadelphia, at the time, and which was such, that it had been forbidden, under pain of death, to have
any communication between the land and the crews of fhips which might, like the Pigou, be feized with the yellow fever.
And, finally, that had the role d'equipage been entirely wanting, it was amply supplied by the crowd of documents and authorities which proclaim the neutrality of the faid thip, that of all her cargo, her American property, and the American origin of all the crew, all proofs resulting from the passport, the custom-house permit, the manifestoes of the cargo, the declarations of the piastres, and the known destination for China.
Wherefore the said H. L. Waddell demands, that the prize of the American fhip Pigou be declared null and of no effect ; that the vesel be restored to the same state she was in at the time of the capture, and placed in a state to go to sea; that the requestration be taken off from the ship, cargo, and 150,919 piastres, which formed part; that the restoration of all the papers be ordered ; and that for all the losses experienced in confequence of an illegal capture, and a forced residence in France for eighteen months, there be granted such damages and interest as shall be just, conformably to the 13th article of the regulation of the 26th July 1798.
Conclusion of the Commissary of Government. Having seen the conclusion of the Commissary of Government, left this day in writing, and in tenour as follows:
The American ship the Pigou having been taken by two frigates of the republic, the proprietors of the ship have no other contradictor than myself, because they have no other party but the government.
Justice is the first debt of fovereignty : in exercising the acts of government, I shall not forget that my first duty in all discussions is to seek the truth, and that by my mandate ) ought only to be juit.
It results from the facts in the cause, that a judgment of the Tribunal of Commerce of L'Orient given on the 8th Ventose, - year 7, gave to Capt, Green main-levée of his thip, and a part of the merchandise and articles which composed the cargo, and that
upon the appeal a minima proceeding from that decision by the Comptroller of the Marine at the port of L'Orient, the tribunal of Morbihan declared the ship and all her cargo a good prize.
The affair is submitted to the decision of the Council by the recurrence which the captured had to the Tribunal of Calfation.
The tribunal of Morbihan founded its decision upon the idea that the ship was armed for war without any commillion or authority from the American government, and that no role d' equipage drawn up by the public ufficers of the place from which the Ship set out was found on board.
The captured have published a memorial in their defence, in which they demand the annulling of the capture, her restoration to the condition in which she was at the time of her departure, the main-levée of the said ship, all her cargo and piastres, the replacing of all the papers on board, and damages and interest proportioned to the loftes they have experienced.
To be able to pronounce upon these facts, we must first fix the validity or invalidity of the prize. If the prize be valid, all demands for damages and interest for reftitution or main-levée are inadmissible. If the prize be not valid, it will then be necessary to examine these acceilory demands.
Excepting the case of a príze actually an enemy's, the whole question upon the validity or invalidity of any prize whatever reduces itself to the examination of a fact of neutrality.
Laws and regulations intervene only to be able to fix in each occurrence the characters by which this neutrality Inay be known. In the present hypothesis was the Tribunal of Appeal of Morbihan authorized to judge that the Pigou was under circum ftances which prevented her being recognised and respected as Deutral?
She was, say they, armed for war without commiffion and authority from her government; she had ten cannon of different calibre ; and musketry and warlike ammunition were found on board.
The captured reply, that their thip, destined for India, was armed for her own defence, and that the ammunition, muskétrý, and cannon which formed her armament did not exceed wharis usual in similar cases for voyages of any length.
For my part, I think that it is not sufficient to have or to carry arms, to deserve the charge of being armed for war. Armament for war is a disposition purely offensive. It is proved when one has no other object in that armament but the object of attack, or at least when every thing announces that such is the principal objed of the enterprise ;-then one is considered either as an C2