obferve, that the article is by no means uncommon, but is to be found in most treaties of amity and commerce. 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 Pruffia, contain fimilar ftipulations. It is not eafy to conceive a reason why it should not alfo be inferted in a treaty with England, or why its infertion fhould give offence to France.

But the rule of the decree is in its operation the most extenfive and the moft feriously deftructive. That rule declares, that, "Conformably to the law of the 14th of February 1793, the regulations of the 21ft of October 1744, and of the 26th of July 1778, concerning the manner of proving the property of neutral fhips and merchandife, fhall be executed according to their form

and tenour.

"Every American fhip fhall therefore be a good prize, which shall not have on board a list of the crew in proper form, fuch as is prescribed by the model annexed to the treaty of the 6th of February 1778, the obfervance of which is required by the twentyfifth and twenty-feventh articles of the fame treaty."

This rule requires that American fhips and merchandise, in order to prove the property to be American, fhall 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 folemn treaty, one object of which was to fecure the veffels of either party which might be at peace, from the cruifers of the other which might be engaged in war. To effect this object the contracting parties have not referred each other to the particular ftatutes or ordinances of either government, but have enumerated the papers which fhould be deemed fufficient. They have done more: they have prescribed the very form of the paffport which should eftablish the neutrality of the veffel, and prevent her being diverted from her courfe. The twenty-fifth and twenty-seventh articles of the treaty between the two nations, which are quoted by the Directory, and are confidered by the underfigned as conclufive on this fubject, are in these words:

Art. 25. "To the end that all manner of diffenfions and quarrels may be avoided and prevented on the one fide and on the other, it is agreed, that in cafe either of the parties hereto fhould be engaged in war, the fhips and veffels belonging to the fubjects or people of each feverally must be furnished with fea-letters or paffports, expreffing the name, property, and bulk of the fhip, as alfo the name and place of habitation of the mafter or commander of the faid fhip, that it may appear thereby that the faid fhip really and truly belongs to the fubjects of one of the parties; which paffport thall be made out and granted according to the

form

form annexed to this treaty; and they fhall likewise be recalled every year, that is, if the fhip happens to return home in the space of a year, It is likewife agreed that fuch fhips, being laden, are to be provided not only with paffports, as above mentioned, but alfo with certificates containing the feveral particulars of the cargo, the place whence the fhip failed, and whither fhe is bound, that fo it may be known whether any forbidden or contraband goods be on board the fame; which certificates fhall be made out by the officers of the place whence the fhip fet fail, in the accustomed form; and if any one fhall think it fit or advifable to express in the faid certificates the perfon to whom the goods on board belong, he may freely do so."

Art. 27." If the fhips of the faid fubjects, people or inhabitants of either of the parties, fhall be met with either failing along the coafts, or on the high feas, by any fhip of war of the other, or by any privateers, the faid fhips of war or privateers, for the avoiding of any disorder, fhall remain out of cannon fhot, and may fend their boats aboard the merchant ship, which they shall fo meet with, and may enter her to the number of two or three men only, to whom the mafter or commander of fuch ship or veffel hall exhibit his paffport, concerning the property of the ship, made out according to the form inferted in this present treaty; and the fhip, when the fhall have fhowed fuch paffport, shall be free and at liberty to pursue her voyage, so as it shall not be lawful to moleft or fearch 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 poffefs the power of agreeing that any paper, in any form, fhall be the fole document demandable by either from the other, to prove the property of a veffel or cargo. It will alfo be admitted, that an agreement fo made becomes the law of the parties, which must retain its obligation.

Examine then the words of the compact, and determine by fair conftruation what will fatisfy them.

The twenty-fifth article states fubftantially the contents of a paper, which is termed a fea-letter or paffport, and which "it is agreed that in cafe either of the parties fhould be engaged in war, the thips and vellels belonging to the fubjects or people of the other ally must be furnished with." To what purpofe are they to be furnished with this fea-letter or paffport? The article answers, "To the end that all manner of diffenfions and quarrels may be avoided and prevented, on the one fide and the other." "That it may appear thereby that the fhip really and truly belongs to the fubjects of one of the parties."

But how will the pallport" prevent and avoid all forts of dif fenfions and quarrels on one fide or the other," if ordinances, both prior and fubfequent to the treaty, are to be understood as con

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trolling

trolling it, and as requiring other papers not contemplated in the public agreement of the two nations? How is it to appear from the paffport, that the fhip really and truly belongs to the fubjects of one of the parties, if it is denied that the paffport is evidence of that fact, and contended that other papers, not alluded to in the treaty, fhall be adduced to prove it?

But the 27th article is ftill more explicit. It declares that when a merchant fhip of one of the parties fhall be vifited by the ships of war or privateers of the other, "the commander of fuch fhip or veffel fhall exhibit his paffport concerning the property of the fhip, made out according to the form inferted in the prefent treaty; and the fhip, when the fhall have fhowed fuch paffport, fhall be free and at liberty to pursue her voyage, fo as it fhall not be lawful to moleft or fearch her in any manner, or to give chase, or force her to quit her intended courfe." What is it that shall prove the property of the veffel? The treaty answers, The paffport. But the decree of the Directory requires in addition cer tain other papers, perfectly distinct from the paffport. The treaty declares, that "the fhip, when the fhall have thowed (not the role d'equipage or any other paper required by the particular ordonnances of either nation," but)" fuch paffport, fhall be free and at liberty to purfue her voyage, fo 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 courfe." Yet the veffels of America, after exhibiting" fuch paffport," are not "free and at liberty to pursue their voyage," they are "molefted;" they are "chafed;" they are "forced to quit their intended courfe;" they are "captured and confifcated as hoftile property.'

It is alleged that the form of the paffport, which is annexed to the treaty, manifefts that certain acts were to be performed by the perfon to whom the paffpart is delivered, and that fuch perfon ought to prove the performance of those acts.

But the treaty, far from requiring fuch proof, abfolutely dif penfes with it. The treaty declares that the paffport fhall itself evidence the property of the veffel, and fecure it from moleftation of any fort. By confent of the parties then the passport is evidence of all that either party can require from the other. Neither the right to give fuch confent, nor the obligation of a compact formed upon it, can, as is conceived, ever be denied, nor can the form of the paffport, whatever it may be, change the compact.

But let the words of the model be examined. They are, “A tous ceux qui ces prefentes verront: Soit notoire que faculté et permiffion a été accordée à maitre ou commandant du navire appellé de la capacité de neaux ou environ, fe trouvant prefentement le port de

de la ville de

ton

qu'après que fon navire a été vifite et avant fon depart, il pretera fex

ment entre les mains des officiers de la marine, que le dit navire appartient à un ou plufieurs fujets de dont l'acte fera mis à la fin des prefentes; de même qu'il gardera les ordonnances et reglemens maritimes, et remettra une lifte fignée et confirmée par témoins, contenant les noms et furnoms, les lieux de naiffance, et la demeure des perJonnes compofant l'equipage de fon navire, et de tous ceux qui embarqueront, lefquels s'il ne recevra pas à bord fans connoiffance et permillion des officiers de marine; et dans chaque port ou havre il montrera la prefente permiffion aux officiers et juges de marine."

It is material to obferve, that the model requires the oath concerning the property of the veffel to be annexed to the paffport, but does not require any other certificate, or the annexation of any paper whatever. Why this difference? It is a folemn proof of that for which the article ftipulates, and therefore the model expreffes that the evidence of this fact fhall be annexed; but it does not require the production of the evidence of any other fact.

It seems then to be demonftrated that the fea-letter or paffport, a model of which is annexed to the treaty, is by folemn agreement to be received by each party as conclufive teftimony, that the veffel producing fuch paffport is the property of a citizen of the other, and is confequently to continue her voyage without moleftation or hindrance.

But let it be fuppofed that the treaty on this fubject was lefs conclufive, and that its ftipulations had been ambiguously expreffed; yet it is certain that it has been uniformly understood by both parties as the underfigned have expounded it; and that neither France nor the United States, previous to the decree complained of, confidered the veffels of either nation, producing the paffport 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 fuggefted that a role d'equipage was neceffary for the protection of an American veffel. It does not weaken the argument, that the United States were also parties to the war. The principle affumed is, that, without the production of the papers required by the decree, the veffel does not appear to be, and cannot be confidered as American property. If this principle be correct, it would not ceafe 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 veffel carrying American colours would not be fecured by the flag the bore. It would be neceffary to prove by her papers, or other and admiffible teftimony, that the veffel was American property. If this fact cannot 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

About four years of the prefent war had alfo elapfed before this conftruction of the treaty, at the fame time fo wonderful and fo ruinous, had difclofed itfelf. In the courfe of that time the ports of France were filled with the veffels of the United States. Very many of them failed under contracts made for the government itself by its minifter in Philadelphia. No one of them poffeffed a role d'equipage; no one of them was confidered on that account as being liable to condemnation. Indeed, in fome inftances, veffels have been captured and discharged although this paper was not among those belonging to the ship.

Such a long courfe of practice appears to have evidenced unequivocally the fenfe of France on this fubject.

It is too apparent to be questioned for a moment, that on the part of the United States no fufpicion had ever been entertained that fuch a paper could have been required. A role d'equipage could have been obtained with as much facility as that paff port for which the treaty ftipulates. Could it have been imagined that American veffels incurred the pollible hazard of being retarded only one day in a voyage for want of fuch paper, it wouldin every inftance have been fupplied. No veifel would have failed without it.

Your own mind, Citizen Minifter, will fuggeft to you, with irrefiftible force, the extreme hardship of thus putting a new conftruction on a long-existing contract, or of giving a new and unexpected extenfion to ancient municipal regulations, and of condemning thereby veffels taken on the high feas for want of a paper not known to be required when they failed out of port. If a role d'equipage was really confidered by France as neceflary evidence of any fact, the establishment of which was deemed effential, common ufage and thofe plain principles of juftice which all nations fhould refpect, indifpenfably require that the regulation fhould be firft made known to a neutral and friendly nation by other means than by the capture and confifcation of its property. If this measure had been announced to the government of the United States before it had been put in practice, and American veffels had failed without a role d'equipage, they would have taken upon themfelves the hazard of fuch a procedure. But in a moment when the ocean is covered with peaceful merchantmen, pursuing a juft and lawful commerce, to bring into fudden operation a measure which had never before been applied to them, which had for fo many years flept unheard of, and by the force of this regulation, to confifcate unguarded property which had been trufted to the feas under the faith of folemn and exifting treaties, and without a conjecture that this, more than any other formula, would have been required, is to impofe on unoffending individuals a ruin from which no wife precautions, no human forefight, could poffibly have protected them.

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