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DOCUMENTS
(Contfnued)
Mr. Mai sm to Gen. Armstrong.
Department of State, ,
July 21, 1808.
Sir Herewith you Mill re*
ceive a copy of the papers rela
tir»p, to one of the veffeU which
were dr ft roved at fe* by the
French friga'es, returning from
the V\ elt Imho, I oblerve that,
in your letter to Mr. Champag
ny, of the zd of April, you
have incidentally noticed this
occurrence. li ample repara
tion (hot)ld not have be*n made
to the lurtncts, the Prefidem
•hit ks it proper that, as their
c.de.s become authenticated you
fhntild present th*rn in term*
which may awaken the French
government to the nature of the
injury and the demands of juf*
tu-e. The burning of neutral
Vv.ffel.s detained on the high leas,
i. the rnoft diitrcfTmg of all the
modes by which belligerents ex
ert force contrary to tight; 61c,
in proportion as it isdefiiluteof
apology, ought at lead to be
the promptitude and amplitude
of the redress. If it be conten
ded that the deflation, in
these cases, proceeded loldy
from the danger that other wife
itvelligrncc might reach a pur.
suing or hovering force, it may
be anfwercd, that if such a plea
were of greater avail, it would
only dtiprove a hoftiiity of in
tention, without Uiminifhing the
obligation to indemnify, on the
rr> >!t liberal (calc, the injured in
dividuals. Ii may be added, that
if the out age on the individuals
was not meant as a hoftiiity to.
wards their nation, the latter
might justly expccT a tender of
such explanations as would leave
no doubt on this lubj 'd.
JAM KS MADISON.
Gen, Anulirong.
Mr. Madison to Gen. Armstrong.
Depurtm. W of State,
July 22, 1808.
<c Your difpatchej by lieus.
Lewis were delivered on the Bth
iuft.
“ It is rrgretted that the in.
terval between his arrival and
the date of your letter to \lr.
Champagny, during which, I
prgluine, feme verbal intcr.com
munotation mult have taken
place, had produced no indica.
tion of a favorable change in
ihc views of the French govern
ment witli iclped to its decrees ;
and (till more, that inltcad of an
early and favorable anlwcr to
your letter, it should have been
followed by such a decree as is
reported to have been iUucdon
the asd of April, at Bayonne.
The decree has not yet reached
the U. S. and therefore, its pre
cise import cannot he afeertain*
cd. But il it should he, as it is
rcprefenied, a (weeping flrokc
at ail American ve.'iels on the
high fear., u will not only extend
our dern mds of lepaiation, but
is rendeted the more ominous
with refped to the temper and
views of the emperor towards
the U. S. by the date of the
meaftne.
“ The arrival of Mr. Baker
with my letter of May 2d, of
which a copy is hetewith lent,
v ill have enabled you to resume
the fubjed of the decrees wi>h
tire faucll opportunity that could
be given to the French govern.
ment for a change of the unjust
and unwise course which has
be~n putfued : ard I a flu re my*
fell that you will not have fail
ed to turn the communications
with which you aie fumifhed
to the led account. It France
does not wilh to throw the U.
S. into the war agaiuft her, (or
which it is impofiible to had a
rational,or piaulit/lc inducement,
she ought not to hefitafe a mo
ment in revoking at leaf! so
much of her decrees as violate
the rights of the fca, and furnifh
to her adverfarv the pretext for
his retaliating meaftire. If would
seem as if the imperial cabinet
had never paid fufTicient attcu.
tion to.the smallness of the fa*
crifice which a repeal of that
portion of its system would in.
volve, if an aft of justice is to
be called a facrifice.
“ The information hv the
return of the Osage from Fng.
land is not more fatisfadory
than that from France. Noth,
ing was said on the fubjebt of
the Chcfapeake, nor any thing
done or promised, as to the or
ders in council. It is probable
that further accounts from the
U. S. were watted for, and that
t l e arrival of the St. Michael
will have led to a manifeflation
of the real views of that govern
ment on thofc and other sub.
jests. In the mean time it can
not be doubted, that hopes were
cherished there of some events
in this country favorable to the
policy of the orders, and par
ticularly, that the oflfenfive lan.
guage £ proceedings of Fiance
would bring on a hostile refin
ance Prom the U. States; in
which case the .British govern,
ment would be able to mould
every thing to its fatisfaHion.
There is much rcafon to believe
that if the British government
should not concur in a mutual
abolition of the ordeis and of
the embargo, it will result from
an unwillingncfs to set an exam,
pie which might be followed,
and might confequemly put an
end to the irritating career of
her enemy, on which the calcu
lation is built. Might not use
be made of this view of the mat
ter in those frank and friendly
convei fations which sometimes
best admit topics of a delicate
nature, and in which pride and
pf CJ VlvliW Call (>• l» •li •%-* «r> « <1
without descending from the ne.
ceffary level ? In evety view it
is evidently proper, as far as
refpett to the national honor
will allow, to avoid a flyle of
procedure which might co.ope
rate with the policy of the Bri
tish government, by stimulating
the pafhons of the French.
(DUPLICATE.)
Gen. Armstrong to Mr. Madison.
Paris, November 12, tun.
SIR —lt was not till yester
day that I received from Mr.
Skipwith a copy of the ricctce
of the council of prizes in the
case of the Horizon. This is
the fu(l unfriendly decision of
that body, under the atrete of
the 21 ft of Nov. 1806. In this
case, and on the petition of the
defendant the touit has recoin,
mended the restitution of the
whole cargo. 1 did not however
think proper to join in asking
as a favor, what I believe my
fell entitled to as a right. I iub
join a copy of iny note to the
minister of foieign affairs.
JOHN ARMSTRONG.
.V ote of General Armstrong —“ In
the former copy nearly a page
of this letter was omitted by the
copter.”
1 iie sane Id Mr. Champagny .
I Paris, Nov. 12, 180".
Slß—The document to which
these observations are prefixed,
will inform your excellency that an
American ship, trading under the
pr otection of the laws of nations,
and of particular treaties, and suf
fering ship wreck on the coast of
France, has recently been seized
by his majesty’s officers, and ad
judged by his council of prizes as
follows, \ 12.
“ Our council puts at liberty
the American vessel the Horizon
| ship wrecked the JOtli ol May l^st,
near Morlai x, and consequently
orders, that U«* amount arising
from the Kale legally made of the*
wreck of the said vessel, together
with the merchandize of the cargo,
which, according to at) estimate
made in the presence of the over
seers of the administration* of ma
rine and custom house, shall have
been acknowledged not to have
proceeded from EngiUh nianutac*
tore*, nor from English territory,
shall be restored to Captain IVJac
lure, without deducting anv oth*r
cxpeuccs than those relative to the
sale.
“ And with regard to the other
merchandize of the cargo, which,
from the result of the said estimate
shail be icknow ledgeu to tome from
nianufattorcs or English territory,
by v)rt»e of the st'n article of the
decree of the |*t November. 1806,
they slall be conhscated for the
me of .hat state ; the whole to b.*
sold by the form* prescribed in the
regulations: and tie- application of
the product to be made in confor
mity t* the arrangement# of the
*aid deeree, deduction being made
for the expences of saving the goods
& that o the support oi the crew,
until the day the captain shall re
ceive thenotificutiou of the present
decision**
The rtnson* upon which this de
cision is ounded, are at once so
new and alarming to the present
(riendlv -eiations of the two pow
ers, that I cannot but discuss them
with a freidom in some degree pro
portioned to my sense of their nov
elty and inpnrtance.
“ Consdering” says the council,
“ Ist. tint the neutrality of the
ship and cargo were sufficiently
established the whole ought to he
restored 'agreeably to the provi
sions of tie convention of the 30th
of Sent. 1800) provided no mer
chandize of English origin had
been foutd in her* and, ot course,
•hat she lad not been brought with
in the Units of the imperial decree
of the £'st of Nov. 18oft ”
Here V an open and unqualified
admission that the ships was found
within tin rules prescribed by the
ronrentin! of 1800; that, accor
ding to time rules, her cargo and
herself ougittohave been restored,
and that sich would have been the
fact, but hr the operation of the
decree of ue 21st Nov. 1806.
In tr*; Jtu*> j *—* >* ■** -*
me the lonor to write to me on the
7th Oct. la«t, you thought it “ easy
to reconcile the obligations of this
decree wi,h the preservation of
those arishg from treaties.” It
was not (>r me to examine the
means by which this reconcili
ation coidl he effected ; they no
doubt fu!y exist and yet exist In
his majesi’s good pleasure ; and
taking fo‘ granted this fact, I saw
in the op hi on nothing but proofs,
oflriendlj dispositions and pledges
that tlies; were not to be either
wantonly destroyed or diminished.
How iiidtspicious, however, to ils
authority, and this consolations de
rived frop it, is this recent act of
the council of prizes ? an act which
explicitly acknowledges the oppo
site characters and conflicting con
junctions of these two instruments,
and whici of course draws after it
consider<tions the most serious to
the goveiimeut of the U. States.
The second reason of the coun
cil is, “ that the decree declaring
(British) merchandize good prize,
had prnpipallv in view captures
made oivthe high seas ; but that
the whether shipwrecked
goods ought to be restored or con
fiscated, having always been judg.
ed under the 14th arMcle i * the re.
gulaton of the 26th of July, 1773,
and according to their character
(whici might have rendered lawful,
or ha>e even commended, their
seizur; at sea) there is no room to
introduce in this case any new dis
tinctim, whicli, however phiian
throphic it may appear, has not
as yet been adopted as a rule by
any maritime natron.”
The doctrine resisted in this pas
sage, and whtcli inculcates the da
te of extending protection to the
unfortunate, is not new to his ma
jesty’s council of prizes. They
hive themselves consecrated it by
their decision of the sth of March,
1800. Bv that decision they re
stoted an enemy’s ship (the Diana)
oh tiit- j’i nglc reason, that >lie hail
been “ compelled to enter a French
port by stress oj weather." I siiouid
I equally fail,” says the attorney ge
| n«ral,“ in respect to myself, «nd
i to the council, before I have
the honor to repre*-nt the govern
mcn' .were I not to maintain a prin -
cip'e, consecrated by our laws, and
by those of all nations■ In all cir
cutmtances, let the totally of the
french government serve as the
basis of your decisions. Prove
yourselves at once generous and
lust ; your enemies will know, and
respect yonr magnanimity .” Such
was the principle adopted by the
council in the year 1300, and in the
case of an enemy’s ship ; yet, we
are now told, that this very prin
Ctple, so honorable to the court, to
the nation, and to human nature,
is utterly unknown to all maritime
people, and on what occasion do
we hear this ? When an ent-iny’s
ship is again thrown on ,he French
coast ? No: it ba# been reserved
for the wreck of a neutral & friend
'y vessel! for a ship of the United
States • It is riot denied, ihat hid
this ship escaped the rocks & made
•he port of Morlaix, the only in
hospitality to which she would have
been exposed (under the most ri
gorous interpretation of the law in
question) would have Ween that of
being ordered again to sea. Has,
then,’the misfortune of shipwreck,
s<* <ar altered her condition, as to
expose her to the in jury of confisca
tion also? and is this among the
principles which the defender of
maritime rights means to conse
crate by his power and his wisdom ?
It is impossible.
The third reason of the coun
cil is, “ that the application of rhe
sth article aforesaid, is ns fat as it
concerns the American and other
nations, is the result both of the
general expressions of that very
article, and of the communication
recently made by his excellency,
the grand judge, concerning the
primitive intention of the sove
reign.”
This reason will he found to be
substantially answered in my re
ply to reason No. 5, of the council.
It will lie seen that th« opinion
given here, that “ the application
of article 5, of the imperial decree
to American commerce, is the re
sult of the general expressions of
that very article,” was not the opi
nion of the council on the sth March
last, when they judged the case of
the Hibernian ; they then declared,
on the convention of 18<j0,” be.
tween the U. States & France.
1 he fourth reason of the council
is, “ that the expedition in question
having entirely been made with full
knowledge of the said decree, no
objection can be drawn, with any
propriety, from the general rules
forbid ling a retrospective action,
nor even, in this particular case,
from tiie posterior date of the act
in which the sovereign decides the
question, since that act sprung from
Ins supreme wisdom, not as an in
terpretation of a doubtfult point,
but as a declaration of an anterior
and positive disposition.”
A distinction is here attempted
to be taken between the interpre
tation of a doubiful point, and the
declaration of an anterior and po
sitive rule. This distinction can
ryot be maintained ; for if the rule
had been positive, there would
have been no occasion for the de
claration. Neither the minister of
marine, nor the council of prizes,
could have had any doubts on the
subject ; the execution of the de
cree would have been prompt and
peremptory ; nor would a second
art on the part of his majesty, after
the lapse of twelve months, have
been necessary to give operation
to tiie first. Need I appeal to yout
excellency’s memory for the facts
on which these remarks turn ? You
know that doubts did exist. You
know that there was, under them,
much hesitation in pronouncing—
You know as late as the 9th of Au
gust, 1 sought an explanation of the
decree in questmn, and that even
then, \ our excellency (who was
surely a competent and legitimate
organ of his majesty) did not think
yourself prepared to give it. The
conclusion is inevitable : his nia
jest Us answer, transmitted to the
court of prizes on the 18th of Sept,
last, thro’ the medium of the grand
judge, was in the nature of an in
terpretation, and being so, could
not, without possessing a retro-av
tive quality, apply to events many
months anterior in date to itself.
r I he filth reason of the council,
and the Just which enter* into my
present view of the *nl,j ect „
“ thru though one of the pnncipj
agents of his majeMv had "ireu 4
contrary opinion, of which
cil hud at no period pur taken
opinion being that of an individual
could not, (whatever consideration
its author na iv merit) balance the
formal declaration given in ti»e
name of his nuj-fty, and that, if the com.
munication of this opinion had, as ia alb Hg.
ed, given room to, and fenred as a bafii f or
many Ameiican fliipmeno, and particularly
of the one in queflion, this eirctunftanc*
which may call far the indulgence of his
majesty, in a case m which the confifeation
is entirely to the advantage of the flare, does
not prevent a council rigid in its duty, to
pronounce in conformity to the decree of
thsaift of riov. and of the declaration which
followed it.”
It would appear from this paragraph, that
not finding it easy to untie the knot, the
council had determined to cut it. Pref Ted
by the fatfl, that an interpretation of the
decree had been given by a miniver cf hit
nujrfty, specially charged'with its execution,
they would now escape from this faA, and
from the conelufions to which it evidently
leads, hy all edging, id. that at n..t lliic had
the council partaken of :be cpinion given
hy the minifler: and t»d, that this opinion,
being that of an individual, could cot po fiefs
either she force ®r authority of one truly
minifteriaL
h appears to me, as I think it
appears to your Fxcellencv, that
the council have, in these state
ments, been less correct than is
ti<»ual to them on similar occasions.
It, as they now assert, thev have
never pirtaken of the minister’s
opinion ; if they have n*-ver even
hrfuated on the queflion, whether the decree
of November did or did not derogate from
the treaty of 1800, why I *(k, fuipend the
American cafe* generally ? or why decide as
they did in the case of the Hibernia ? If f
mistake not, we find in this case the recogni
tion of the very principle laid down by the
minifler of marine. That offier fays “ia
my opinion the November decree does not
work any change in the rules at present ob
served wi.h refpedt to neutral eommrce, and
confrquently n*ne in the convention of the
Bth Vendemaire, year 9” And what fays
the council ? “ Admitting that this part of
the cargo (the rum and ginger) was of Britijl
origin thcdifpofition of the November decree
( ynbitb contain nothing vnttb regard to tbeir turn
influence over the convention of tit ill Fen
dtmmirt, year 9 ) evidently caunot be applied
to a (hip leaving America on the fifth
of the fame month of November: and of
course cannot have authorised her capture in
the moment flic was ertering the neu
tral port of her detonation.’ We have
here three distinct grounds of exemption
from the eflisdl of the November decree,
1' The entirejiitnee of that decree with
regard to itsown influence over the conven
tion of 18o« :
*d. Theear/y/urinJ at which the Aip left tbs
U. S. and
Tile neutral ebarnfter of the pert to
which (lie, was deflined.
that the interptttsua,, m c*i— ueiu.t
tion given on the *4th December, IBc6 wa#
private not fabl e —or in other worlds, that it
was the interpretation of the •<>*, not that of
the minifler — and as such, cannot outweigh
the more recent declaration coining diredkly
from his majesty himfelf.
On the comparative weightof thefedeclar
ations 1 (hall fay nothing, nor of the insinua
tion (that the mmifler'e declaration meat that only
of the individuals J—then to submit to your ex
crllency my letter of the soth of Dec. 18o®
claming from that minifler an official inter
pretation of the decree in queflion, and his
answer of the 24th of the fame month, giving
to me the interpretation demanded.
To your excellency, who a* late aa tbs
lift of August last, considered the miniftere
of marine as the natural organ of his majefty’*
will in whatever regarded the decree aforefaid
and who adtualy applied to him for informa
tion relating to it, this allegation of the coun
cil of prizes and reasoning founded upon it,
cannot but appear very extraordinary, and
will juftify me in requesting that his majesty
may be moved to set aside the derision in
queflion, on the ground of error in the cpin-i
ion of the council.
If in support of this coneluflon I have
drawn no arguments from the treaty of 1800,
nor from the laws of nations, your excellency
will not be at a loss to afiigu to thisomifiion
its true eaufe. ft would surely have been
an ufcleft formality to appeal to authorities,,
not only practically,but even profefiedlv ei
tindt In the letter of the minister of jnftice
of the 18th of Sept, we are told by his ma
jtftf himfelf, that since be had not judged
proper to make any exception in the letter
of his decree, there was no room to make
any in its execution," and in the report of
your excellency’s predecefior, of the aoth
of November, 18c6, we have these memora
ble words:
“ England has declared those plaice*
blockaded, before which (he had;not a Cngle
(hip of war ”
*• She has done more, for flic has declared
in a date of blockade, places which all her
aflembled forces were incapable of blocka
ding—immcnce coasts and vast empire. ”
“ Afterwards drawing from a chemerical
right and from an ailumed fact the confce
-1 quencc that (he might justly make her prey
! of every thing going to the places laid un
der interdiction hy a simple declaration of
the liritito admiralty, and of every thing
ariiiiif therefrom, and carrying this doctrine
into efietft, (he has alarmed neutral naviga
tors. and driven them to a diflance front
ports whither their interests attracted them,
| and which the law of nations authorised
I them to frequent.
1“ Thus it is that (lie has turned Spn
own profit, and to the detriment of Euroj
but more particularly of France, the
ty with which Jbc mocks at all right and in full.
even reafou itfel).
“ Against a power which forgets to such
a pitch all ideas of j' dice, & all human feo
timeutl, trial can it dene but to forget them ffir
an infant one c ftljf"
JOhN ARMSTRONG, .
Hit Excellency the Minister
cf Foreign Affairs*