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observe, that the article is by no means uncommon, but is to be found in most treaties of amity and cominerce. The twenty-first article of the treaty with France, the nineteenth of the treaty with the United Provinces, the twenty-third of the treaty with Sweden, and the twentieth article of the treaty with Prussia, contain similar ftipulations. It is not easy to conceive a reason why it should not also be inserted in a treaty with England, or why its insertion should give offence to France.
But the rule of the decree is in its operation the moft extensive and the most seriously destructive. That rule declares, that, “ Conformably to the law of the 14th of February 1793, the regulations of the 21st of October 1744, and of the 26th of July 1778, concerning the manner of proving the property of neutral ships and merchandise, shall be executed according to their forin and tenour.
« Every American fhip shall therefore be a good prize, which Thall not have on board a list of the crew in proper form, such as is prescribed by the model annexed to the treaty of the 6th of February 1998, the observance of which is required by the twentyfifth and twenty-seventh articles of the same treaty.
This rule 'requires that American fhips and merchandise, in order to prove the property to be American, shall exhibit certain papers, and especially a role d'equipage, which are required of neutrals generally by the particular marine ordinances of France, recited in the decrees of the Directory. But France and America have entered into a sulemn treaty, one object of which was to fecure the vessels of either party which might be at peace, from the cruisers of the other which might be engaged in war. To effect this object the contracting parties have not referred each other to the particular statutes or ordinances of either government, but have enuinerated the papers which should be deemed fufficient. They
have done more: they have preferibed the very form of the paff. · port which should establish the neutrality of the vessel, and pre.
vent her being diverted from her course. The twenty-fifth and twenty-seventh articles of the treaty between the two nations, which are quoted by the Directory, and are considered by the undersigned as conclusive on this subject, are in these words: • Art. 25.
« To the end that all manner of diffensions and quara rëls may be avoided and prevented on the one side and on the other, it is agreedy that in cafe either of the parties hereto should be engaged in war, the ships and vessels belonging to the subje&s of people of each severally must be furnished with fea- letters or passports, expressing the name, property, and bulk of the ship, as also the name and place of habitation of the master or commander of the said fhip, that it may appear thereby that the faid thip really and truly belongs to the subjects of one of the parties; which passport thall be made out and granted according to the
form annexed to this treaty; and they shall likewise be recalled every year, that is, if the ship happens to return home in the space of a year, It is likewise agreed that such ships, being laden, are 10 be provided not only with passports, as above mentioned, but allo with certificates containing the several particulars of the cargo, the place whence the ship failed, and whither she is bound, that so it may be known whether any forbidden or contraband goods be on board the fame ; which certificates thall be made out by the officers of the place whence the ship set sail, in the accustomed form; and if any one thalt think it fit or advisable to express in the faid certificates the person to whom the goods on board belong, he may freely do so."
“ If the ships of the said subjects, people or inhabitants of either of the parties, shall be met with either sailing along the coasts, or on the high feas, by any ship of war of the other, or by any privateers, the said ships of war or privateers, for the avoiding of any disorder, shall remain out of cannon fhot, and may fet their boats aboard the merchant ship, which they shall to meet with, and may enter her to the number of two or three men only, to whom the master or commander of such thip or vefsel (hall exhibit his patsport, concerning the property of the ship, made out according to the form inserted in this present treaty; and the thip, when she shall have showed such passport, shall be free and at liberty to pursue her voyage, so as it shall not be lawful to moleft or search her in any manner, or to give her chase, or force her to quit her intended course."
It will be admitted that the two nations possess the power of agreeing that any paper, in any form, shall be the sole document demandable by either from the other, to prove the property of a Fessel or cargo. It will also be admitted, that an agreement so made becomes the law of the parties, which must retain its obligation.
Examine then the words of the compact, and determine by fair construction what will satisfy them.
The twenty-fifth article states substantially the contents of a paper, which is termed a sea-letter or palsport, and which “ it is agreed that in case either of the parties should be engaged in war, the ships and vessels belonging to the subjects or people of the other ally mult be furnished with.” To what purpose are they to be furnished with this sea-letter or pafsport. The article answers, “ To the end that all manner of dissensions and quarrels may be avoided and prevented, on the one side and the other.” “ That it may appear thereby that the ship really and truly belongs to the fubjects of one of the parties."
But how will the patsport“ prevent and avoid all sorts of diffenfions and quarrels on one side or the other,” if ordinances, both prior and subsequent to the treaty, are to be understood as conLI 2
trolling it, and as requiring other papers not contemplated in tře public agreement of the two nations? How is it to appear from the passport
, that the ship really and truly belongs to the fubje&s of one of the parties, if it is denied that the passport is evidence of that fact, and contended that other papers, not alluded to in the treaty, shall be adduced to prove it?
But the 27th article is still more explicit. It declares that when a merchant ship of one of the parties shall be visited by the ships of war or privateers of the other, “ the commander of such ship or vessel fhall exhibit his passport concerning the property of the ship, made out according to the form inserted in the present treaty; and the thip, when she shall have showed such passport, shall be free and at liberty to pursue her voyage, so as it shall not be lawful to moleft or search her in any manner, or to give chase, or force her to quit her intended course." What is it that shall prove the property of the vessel? The treaty answers, The paflport. But the decree of the Directory requires in addition cer- , tain other papers, perfectly distinct from the passport. The treaty declares, that “the ship, when she shall have showed (not the role d'equipage or any other paper required by the particular ordonnances of either nation," but) " such passport, shall be free and at liberty to pursue her voyage, so as it Thall not be lawful to moleft or search her in any manner, or to give her chase, or force her to quit her intended course." Yet the vessels of America, after exhibiting “ such passport,” are not “ free and at liberty to pursue their voyage;" they are “molested;" they are “ chased;” they are “ forced to quit their intended course;" they are “captured and confiscated as hostile property.”
It is alleged that the form of the passport, which is annexed to the treaty, manifests that certain acts were to be performed by the person to whom the passpart is delivered, and that such per. son ought to prove the performance of those acts.
But the treaty, far from requiring such proof, absolutely dispenses with it." The treaty declares that the passport shall itself evidence the property of the vessel, and secure it from moleftation of any fort. By consent of the parties then the passport is evidence of all that either party can require from the other. Neither the right to give such consent, nor the obligation of a compact formed upon it, can, as is conceived, ever be denied, nor can the form of the passport, whatever it may be, change the compact.
But let the words of the model be examined. They are, “A tous ceux qui ces presentes verront: Soit notoire que faculté et permiffion a été accordée à
maitre ou commandant du navire appella de la ville de de la capacité de
tonneaux ou environ, se trouvant presentement le port de qu'après que son navire a été vifite et avant son depart, il pretera fer
ment entre les mains des officiers de la marine, que le dit navire appare tient à un ou plusieurs sujets de
dont l'acte sera mis à la fin des presentes; de même qu'il gardera les ordonnances et reglemens maritimes, et remettra une liste signée et confirmée par témoins, contenant les noms et surnoms, les lieux de naissance, et la demeure des perfonnes composant l'equipage de son navire, et de tous ceux qui embarquerent, lesquels s'il ne recevra pas à bord sans connoisance et permission des officiers de murine; et dans chaque port ou havre il montrera la Prejente permission aux officiers et juges de marine."
It is material to observe, that the model requires the oath concerning the property of the vessel to be annexed to the passport, but does not require any other certificate, or the adnexation of any paper whatever. Why this difference? It is a solemn proof of that for which the article stipulates, and therefore the model expresses that the evidence of this fact shall be annexed; but it does not require the production of the evidence of any other fact,
It seems then to be demonstrated that the sea-letter or passport, a model of which is annexed to the treaty, is by folemn agreement to be received by each party as conclusive testimony, that the vessel producing such passport is the property of a citizen of the other, and is consequently to continue her voyage without molestation or hindrance.
But let it be supposed that the treaty on this subject was less conclusive, and that its stipulations had been ambiguously expressed; yet it is certain that it has been uniformly understood by both parties as the undersigned have expounded it; and that neither France nor the United States, previous to the decree complained of, considered the vessels of either nation, producing the passport agreed on, as liable to capture for want of a role d'equipage.
For more than four years after her treaty with the United States, France was engaged in a war with Britain; and in the course of that time it was never suggested that a role d'equipage was necessary for the protection of an American vessel. It does not weaken the argument, that the United States were also parties to the war. The principle assumed is, that, without the production of the papers required by the decree, the vessel does not appear to be, and cannot be considered as American property. If this principle be correct, it would not cease to apply because the United States were engaged in the war.
Was America even engaged in the war on the part of France, a British vessel carry. ing American colours would not be secured by the flag the bore. It would be necessary to prove by her papers, or other and admif. lible testimony, that the vessel was American property. If this fact can not appear without a role d'equipage while the United States are at peace, neither could it appear without the fame evidence if the United States were parties in the war.
About four years of the present war had also elapfed before this construction of the treaty, at the same time so wonderful and so ruinous, had disclosed itself. In the course of that time the ports of France were filled with the vesels of the United States. Very many of them failed under contracts made for the government itself by its minister in Philadelphia. No one of them possessed a role d'equipage; no one of them was considered on that account as being liable to condemnation. Indeed, in some jostances, vessels have been captured and discharged although this paper was not among those belonging to the thip.
Such a long course of practice appears to have evidenced unee quivocally the sense of France on this fubject.
It is too apparent to be queitioned for a moment, that on the part of the United States no suspicion had ever been entertained that such a paper could have been required. A role d'equipage could have been obtained with as much facility as that pallport for which the treaty ftipulates. Could it have been imagined that American reffels incurred the potible hazard of being retarded only one day in a voyage for want of such paper, it would in every instance have been supplied. No veilei would have failed without it,
Your own mind, Citizen Minister, will suggest to you, with irrefifible force, the extreme hardship of thus pirtting a new construction on a long-existing contract, or of giving a new and unexpected extension to ancient inunicipal regulations, and of condemning thereby vessels taken on the high seas for want of a paper not known to be required when they failed out of port. If a role d'equipage was really considered by France as necessary evidence of any fact, the establishment of which was deemed essential, common usage and those plain principles of justice which all nations should respect, indispensabiy require that the regulation should be first made known to a neutral and friendly nation by other means than by the capture and confiscation of its property. If this measure had been announced to the government of the United States before it had been put in practice, and Amesican vesels had failed without a role d'equipage, they would have taken upon themselves the hazard of such a procedure. But in a moment when the ocean is covered with peaceful merchantmen, pursuing a just and lawful commerce, to bring into fudden operatjon a measure which had never before been applied to them, which had for so many years slept unheard of, and by the force of this regulation, to confiscate unguarded property which had been trusted to the seas under the faith of solemn and existing treaties, and without a conjecture that this, more than any other formula, would have been required, is to impose on unoffending individuals a ruin from which no wise precautions, no human foresight, could poflibly have protected them.