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cafe, reftored the St. Johannes, together with the cargo; and, as the claimant fubmits, the diftinction which the captors and his Majefty'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, confidered the Swedifh convoy, generally, to have made any fuch refiftance as would raife the prefent queftion; but, from the 27th of June down to that time, a period of nearly four months, were proceeding againft particular ships only, on the ground of their avowed or fufpected deftinations to hoftile ports, with cargoes of naval ftores.

Reafons affigned by Appellant.

1. Because the veffel and cargo, being the undoubted property of Swedes, as claimed, the cargo confifting 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 confequence, if forcible refiftance be made by a merchant-fhip to prevent vifitation, no fuch refiftance was made, or attempted to be made, by the veffel in queftion.

3. Because the right of vifitation was not carried or attempted to be carried into execution, by the captors, in a manner confiftent either with the letter or fpirit of the treaties between Great Britain and Sweden, or the duties arifing out of that right itself.

4. Because the hip's papers were immediately delivered on the firft demand, which, however, did not take place until fix weeks after the capture.

5. Because the principles and authorities which fubject private merchant-fhips to fearch, do not, by any juft analogy in law, apply to the fituation of a fleet under convoy of a thip of war, fpecially appointed by the fovereign, and pledging the public faith of the ftate to which they belong.

6. Because, although there are many inftances of veffels failing under convoy, fome even of an enemy, and others which have been taken after confiderable refiftance, and a formal engagement with the convoying fhips, yet no precedent has been adduced, or can be adduced, of any veffel 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 prefent time, Sweden has been in the occafional practice of fending convoys, when fhe has been at peace and Great Britain at war; and neither has any question in confequence 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 inftructions

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inftructions have been iffued to the Swedish cruifers to refpect the word of every British officer, having the merchant-fhips of this country under his convny.

8. Becaufe, in this inftance, the convoying frigate was not appointed with any original purpofe adverfe to Great Britain, and did not make any actual refiftance, though the commander feems to have been repeatedly provoked so to do.

9. Because, by the agreement of the British and Swedish commanders, the question, whatever it was, between the two countries, was referred entire to the two courts.

10. Because the captors, and his Majefty's government, by their conduct towards the Swedish frigate, and the veffels under her convoy, bound to Portugal, have clearly admitted that the Swedish fleet was not feized and detained on account of any forcible refiftance, or any refufal to fubmit to vifitation and fearch, but folely on grounds arifing out of the nature of the cargoes and destination, which grounds have been abandoned in fact, and cannot be maintained in law *.

Decifion 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 Confuls of the 6th Germinal, year 8, in virtue of the law of the 26th Ventofe preceding, has come to the following decifion :

Quality of the Parties.-Between John Green, of the ship Pigou, acting by the agency of Henry L. Waddell, fupercargo and part proprietor of the faid fhip, on the one part, and the Commiffary of the Government acting and being in the faid quality, for the captains and crew of the frigates of the French republic Bravoure and Concorde, on the other part.

Vifa the principal papers on board, confifting of the act of regifter, the paffport figned John Adams, the lift of the crew, the permit of the custom-house at Chester, in the district of Philadelphia, and the accounts of piaftres and other merchandise configned to Henry L. Waddell and Thomas Wharton.

Vija the proces verbaux of the capture, the inftruction drawn up upon the arrival of the prize at L'Orient, in which inftruction the captain, lieutenants, fupercargoes, and crew of the Pigou, unanimoudly declare, that the faid fhip was under the American flag bound to China, and navigated entirely by American failors, and that the role d'equipage was drawn up at Philadelphia.

Vifa the decifion of the civil tribunal of the department of

This cafe is extracted from the pleadings in the cause, and the facts` ftated are all admitted on the part of the captors.

Morbihan,

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 expenfes of the procefs. Having feen alfo the memorial to the tribunal of Capotier prefented by Captain Green.

Inftructions drawn up to the Council.

Having feen the memorial laid before the Council the 19th of laft 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 fea, that that pretended to have been drawn up on land, ftated no pretence for the capture; and that immediately after the capture all the papers were not depofited in a cheft or bag in prefence of the captain, who ought to have sealed them with his feal, in obedience to the 2d article of the law of the 26 Brumaire (year 4); the faid H. L. Waddell endeavours to establish,

1. That the faid fhip the Pigou, though having on board tencannon mounted, of different calibres, was not armed as a fhip of war, because cannon are neceffary both for falutes and fignals of failing and arrival, and for fignals of diftrefs; because they are alfo neceffary in the Afiatic feas, infefted by pirates, who attack perfons and property without diftinction; that with fuch a rich cargo as the Pigou it was not likely that the crew would run the risk of privateering; that with fo finall a crew fhe could not man the prizes the might make: from which it followed that the arms she had on board were only for defence, which is always permitted to fhips furnished with palfports; and that according to the ordonnance of 1681, it is neceffary, in order that the carrying of arms on board a 'fhip fhould lead to confifcation, that the who has them fhould have them without acknowledging it, or fhould have fought by attacking; a charge which cannot be brought against the Pigou, which had a paffport figned by the Prefident of the United States, an act of property and fea letters, all announcing that there were ten cannon on board the Pigou, which, fo far from attacking, had ftruck her flag on the firft fire from the frigates.

2. That the role d'equipage was not obligatory for American fhips by the treaty concluded the 6th February 1778, which, by the 25th and 28th articles, requires folely that they fhould be provided in cafe of war with fea letters or palfports, expreffing the name, property, and fhip's port, with the name and abode of the commiflary of the thip, and the certificates concerning the detail. and the cargo; and that by exhibiting thefe papers, and particularly the paffport conformably to the formula annexed to the treaty, the ftopping or molefting them is forbidden: that it is fruitlefs 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.

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12th Ventofe, year 5, which could not render null a folemn treaty between two nations at peace, and obligatory upon both, because it does not belong to one party nor to one people to exchange at their will a ftipulation made by common confent.

3. That the role d'equipage did exift on board the Pigou, though it was not neceffary; that in truth it was not invested with all the requifite formalities; that is to fay, with the fignature fo easy to be obtained, of two public officers, in ordinary times; but that the cause of this omiffion was to be found in the fcourge that ravaged America, and, above all, Philadelphia, at the time, and which was fuch, 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 fupplied 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 refulting from the paffport, the cuffom-house permit, the manifeftoes of the cargo, the declarations of the piaftres, and the known deftination for China.

Wherefore the faid H. L. Waddell demands, that the prize of the American ship Pigou be declared null and of no effect; that the veffel be restored to the fame ftate fhe was in at the time of the capture, and placed in a state to go to fea; that the fequeftration be taken off from the fhip, cargo, and 150,919 piaftres, which formed part; that the restoration of all the papers be ordered; and that for all the loffes experienced in confequence of an illegal capture, and a forced refidence in France for eighteen months, there be granted such damages and intereft as shall be juft, conformably to the 13th article of the regulation of the 26th July 1798.

Conclufion of the Commiffary of Government.

Having feen the conclufion of the Commissary of Government, left this day in writing, and in tenour as follows:

The American fhip the Pigou having been taken by two frigates of the republic, the proprietors of the fhip have no other contradictor than myself, because they have no other party but the government.

Juftice is the first debt of fovereignty in exercising the acts of government, I shall not forget that my firft duty in all difcuffions is to feek the truth, and that by my mandate I ought only to be just.

It results from the facts in the caufe, that a judgment of the Tribunal of Commerce of L'Orient given on the 8th Ventofe, - year 7, gave to Capt. Green main-levée of his fhip, and a part of the merchandise and articles which compofed the cargo, and that

upon the appeal a minima proceeding from that decifion 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 fubmitted to the decifion of the Council by the recurrence which the captured had to the Tribunal of Caffa

tion.

The tribunal of Morbihan founded its decifion upon the idea that the fhip was armed for war without any commiffion or authority from the American government, and that no role d'equi page drawn up by the public officers of the place from which the fhip fet 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 fhe was at the time of her departure, the main-levée of the faid fhip, all her cargo and piaftres, the replacing of all the papers on board, and damages and intereft proportioned to the loffes 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 intereft for reftitution or main-levée are inadmiffible. If the prize be not valid, it will then be neceffary to examine these acceffory demands.

Excepting the cafe of a prize actually an enemy's, the whole queftion 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 may be known. In the prefent hypothefis was the Tribunal of Appeal of Morbihan authorized to judge that the Pigou was under circum ftances which prevented her being recognised and refpected as neutral?

She was, fay they, armed for war without commiffion and authority from her government; fhe had ten cannon of different calibre; and mufketry and warlike ammunition were found on board.

The captured reply, that their fhip, deftined for India, was armed for her own defence, and that the ammunition, musketry, and cannon which formed her armament did not exceed what is ufual in fimilar cafes for voyages of any length.

For my part, I think that it is not fufficient to have or to carry arms, to deferve the charge of being armed for war. Armament for war is a difpofition purely offenfive. 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 fuch is the principal object of the enterprife;-then one is confidered either as an

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enemy,

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