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enemy or as a pirate, if one is not the bearer of a commiffion or title capable of doing away all fufpicions *.

But defence is of natural right, and the means of defence are legitimate in fea voyages as in all the other perilous occurrences of life.

A fhip having a fmall crew, and whofe cargo of merchandise was of confiderable value, was evidently deftined for commerce and not for war. The arms 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 fecond charge made against the captors, the want of a role d'equipage drawn up by the public officers of the place from which the fhip departed.

I do not think it neceffary to enter in this cafe into all the queftions 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 refpective 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 caufe, and to take fuch measures as it may think ufeful for its fafety. It would then be abfurd and dangerous to determine what a government can or cannot do when a case of felf-prefervation occurs.

In order to maintain the validity of the prize, the captors refer to the regulation of the 21ft of October 1744, of the 26th July 1778, and the arreté of the Directory of the 12th Ventose, year 5, which require a role d'equipage.

The captured on their fide refer to the treaty of commerce concluded between France and the United States on the 6th of February 1778; they affert 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 ships 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 neceffary to establish neutrality. But I do not think it is neceffary to examine whether the treaty ought to have more force than the regulations, or whether the regulations ought 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 queftions of good faith, in which we must have regard to the bottom 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, ftates-" Shall be good prizes all thips with their cargo, in which there fhall not be found charterparties, accounts, and manifeftoes." It is in this fame point of view that the regulations of 1744 and 1778 oblige mafters of neutral fhips to prove at fea their neutral property by paffports, and other papers on board.

The regulation of 1744, whofe difpofitions have been reftated 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 fuppofe, that the want of one of these papers, or the flighteft 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 circumftances difclofe. On other occafions, the character of neutrality is feen, even though there be omiffions or irregularities of form, which proceed from mere negligence, or which are founded upon motives foreign to every fpecies of fraud.

We must feek for the truth; and in thefe 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 fimple omiffion or irregularities of form cannot injure truth, if it be manifeft by other things.--Et fi aliquid ex folemnibus deficiat, cum æquitas pofcit fubveniendum eft.

Thus the regulation of the 26th of July 1778, art. 2, after having faid that mafters of neutral fhips fhall be required to juftify at fea their neutral property by paffports and other papers, adds" one of which at leaft fhall afcertain the neutral property, or fhall contain a precife enunciation of it."

It is not neceffary to juftify the neutral property by the perfect concurrence of all the papers enumerated in the regulations. But it is fufficient, according to circumftances, that one of them fhould prove that property, if that one be not contradicted or contefted by circumftances more decifive.

The effentital thing is, upon every occafion, for the judge to be reasonably convinced that the property is neutral or is not.

It does not fignify that, according to cafes, 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 fhip whose master I cannot exhibit thofe papers; that feverity of the legislature is not

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and can never be more than comminatory. It remains always fubordinate to the whole of the circumftances, which can alone operate conviction.

We have an example of what I eftablished in the fixth article of the regulation of the 21ft of October 1744. By that article the legislator wills that every fhip taken, of whatever nation, neutral, enemy, or ally, of which it fhall be proved that there were papers thrown into the fea, be declared a good prize with her cargo, upon the fole proof of the papers having been thrown into the fea. Nothing more formal.

In latter times difficulties arofe upon the manner of executing this rigorous difpofition, which had been renewed by the dlaration of 1778.

On the 13th November 1799, the King wrote to the Admiral that he committed it entirely to him and the Commiffaries of the Council of Prizes to apply the rigour of the ordonnances and the regulation of the 26th July, or to modify the difpofitions 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 the cafe of Pierre Brandebourg, captain of the Swedish fhip Fortune, and the Sieur de la Roque Dourdan, commander of the Renard, releafed the prize, though papers had been thrown overboard. It decided that, in order for the throwing of papers overboard to produce confifcation, it was neceffary that they thould be of a nature to afford proofs of being an enemy's property, and that the captain fhould have an intereft in throwing his papers overboard; which was not the cafe with refpect to the Swedish captain *.

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The great principle then is, to decide according to the truth of things.

The neutral property must be proved; but may be proved-notwithstanding the omiffion or irregularity of fome forms. On the other hand, we may difcover fraud, though it may be concealed under fair appearances. We ought to put afide all the thorns and fubtleties of right, according to the energetic expreffion of an ancient ordonnance; we must proceed by good and mature deliberation, and look to it confcientiously.

Of what fervice 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 and their replies, thofe facts which may be obfcure, or to fupply,

New Code of Prizes, ad vol. p. 169, 170, and 171.

✦ Ordonnance of the 4th Dec. 1400, art. 6, under the head of Admiralty.

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by a detailed juftification, fuch papers as could not be brought, or the omiffion of which may be nothing but the effect of circumftances more or less imperious?

In the prefent cafe, 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 obferve that that role is fupplied by the paffport, and that the captured prove the phyfical impoffibility in which they were of procuring an infpection 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 diforder raged, and that no failor or officer of a fhip in which the diforder had manifefted itself, could communicate with the land. I add, that the passport, and all the papers on board, afcertain, in an evident manner, the neutral property of the fhip 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 fame fact, and if thofe papers are not contradicted by any prefumption of fraud; the character of neutrality cannot then fail to be recognised by the judge; and this is proved in the present cafe, in which it was impoffible to procure the role d'equipage in the form required, in which confequently no prefumption of fraud can arife 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 afcertained, 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 intereft, the Commiffary contended that the demand was well founded, because the captors could not fairly entertain any fufpicions against the Captain of the Pigou. The neutrality of the fhip was demonftrated by her being American built, by her flag, by her deftination, 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 fervices rendered to the French nation, by the act of property of the fhip, by the paffport, by all the papers on board; in fhort, by the place where the fhip was taken, which excluded all idea of a fufpicious deftination.

Under thefe circumftances I conclude that the Council, doing justice to the demand of John Green, captain of the American fhip Pigou, fhould decide that full and entire main-levés fhould be given to John Green, or fuch other perfon as may be authorized

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by him of the fhip Pigou, her whole merchandise and argo in confequence,that every thing be reftored to him, as well as the papers and packets on board. With refpect to the demand of the faid J. Green for damages and intereft, I conclude that the faid damages and intereft be adjudged to him, and the liquidation made according to law.

Deliberate at Paris, 6 Prairial, year 8.

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Having heard the report of Citizen Barennes, and feen and confidered 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 faid fhip, without allowing the judgment of the 25 Ventofe, year 7, by the Tribunal of Appeal of Morbihan, nor that of the Tribunal of Commerce of L'Orient of the 8th of the fame month, decide, that the capture of the said ship and her cargo is null and of no effect; in confequence, they direct full and entire reftitution to the faid John Green and all others proving their rights and title of the faid American ship 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 refpect to the demand of the faid John Green of damages and interest for the loifes he may have fuffered, and which he fhall prove, the Council adjudged to him the said damages and intereft.

Done the 9th Prairial, 28th May 1800, year 8th of the
French republic one and indivifible.

(Present)

Citizen REDON, Prefident,
NIOU, LACOSTE, MOREAU,

MONTIGNY-MONPLAISIR.

BARENNES, DUFANT,

PARCEVAL, GRANDMAISON,

and TOURNACHON,

Members of the Council of Prizes.

In the name of the French republic, it is ordered to all huiffiers to carry the prefent decifion into execution, to all commanders and officers of the public force to lend their aid when they fhall be legally required, and to the commiffaries of government in the tribunals to give their affiftance. The faid decifion has been figned by the Prefident of the Council and the Reporter. REDON, Prefident. CALMALLET, Sec. Gen.*

(Signed)

As the rights of neutral fhips conftitute a queftion of great interest, the above papers on the subject may be found of confiderable utility.

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