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principles which the defender of maritime rights means to consecrate by his power and his wisdom? It is impossible.
The third reason of the council is, “ that the application of the 5th article aforesaid, in as far 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 sovereign.''
This reason will be found to be substantially answered in my reply to reason No. 5 of the council. It will be seen that the opinion given here, that “ the application of article 5 of the imperial decree to American commerce, is the result of the general expressions of that very article," was not the opinion of the council on the 5th of March last, when they judged the case of the Hibernia ; they then declared, in totidem verbis, that the decree " said nothing of its own influence on the convention of 1800," between the United States and France.
The fourth reason of the council is, “that the expedition in question having certainly been made with full knowledge of the said decree, no objection can be drawn, with any propriety, from the general rules forbidding a retrospective action, nor even, in this particular case, from the posterior date of the act in which the sovereign decides the question, since that act sprung from his supreme wisdom, not as an interpretation of a doubtíul point, but as a declaration of an anteriour and positive disposition.”
A distinction is here attem; it to be taken between the interpretation of a doubtful point, and the declaration of an anteriour and positive rule. This distinction cannot be maintained ; for if the rulc had been positive, there would have been no occasion for the declaration. Neither the minister of marine, nor the council of prizes, could have had any doubts on the subject; the execution of the decree would have been prompt and peremptory; nor would a second act on the part of his majesty, after the lapse of twelve months, have been necessary to give ope. ration to the first. Need I appeal to your 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, that as late as the 9th of August, I sought an explapation of the decree in question, and that even then,
your 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 majesty's answer, transmitted to the court of prizes on the 13th of September last, through the medium of the grand judge, was in the nature of an interpretation, and being so, could not, without possessing a retro-active quality, apply to events many months anteriour in date to itself.
The fifth reason of the council, and the last which enters into my present view of the subject, is, “ that though one of the principal agents of his majesty had given a contrary opinion, of which the council had at no period partaken : this opinion being that of an individual, could not, (whatever consideration its author may merit) balance the formal declaration given in the name of his majesty himself, and that, if the communication of this opinion had, as is alleged, given room to, and served as a basis for many American shipments, and particularly of the one in question, this circumstance, which may call for the indulgence of his majesty, in a case in which the confiscation is entirely to the advantage of the state, docs not prevent a council, rigid in its duty, to pronounce in conformity to the decree of the 21st of November, 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. Pressed by the fact, that an interpretation of the decree had been given by a minister of his majesty, specially charged with its execution, they would now escape from this fact, and from the conclusions to which it evidently leads, by alleging,
1st. That at no time had the council partaken of the opinion given by the minister: and
2d. That this opinion, being that of an individual, could not possess either the force or authority of one truly ministerial.
It appears to me, as I think it will appear to your excel. lency, that the council have, in these statements, been less correct than is usual to them on similar occasions. If, as they now assert, they have never partaken of the minister's opinion; if they have never even hesitated on the question, whether the decree of November did, or did not, derogate from the treaty of 1800 ; why, I ask, suspend the American cases generally? or why decide as they did in the case of the Hibernia ? If I mistake not, we find in this case the recognition of the very principle laid down by the minister of marine. That officer says, “In my opi. nion, the November decree does not work any change in the rules at present observed, with respect to neutral commerce, and consequently none in the convention of the 8th Vendemiaire, year 9 :" And what says the council ? “Admitting that this part of the cargo (the rum and ginger) was of British origin, the dispositions of the November decree (which contain nothing with regard to their own influence over the convention of the 8th Vendemiaire, year 9) evidently cannot be applied to a ship leaving America on the 6th of the same month of November; and, of course, cannot have authorized her capture, in the moment she was entering the neutral port of her destination." We have here, three distinct grounds of exemption from the effects of the November decree.
1st. The entire silence of that decrce, with regard to its own influence over the convention of 1800.
2d. The early period at which the ship left the United States, and
3d. The neutral character of the port to which she was destined.
If such, sir, were the principles admitted by the council on the 25th of March last, with what correctness can it be now said, “that at no period have they partaken of the opinion of the minister ?
The second fact asserted by the council is, that the interpretation of the decree in question, given on the 24th of December, 1806, was private, not publick; or, in other words, that it was the interpretation of the man, not that of the minister, and as such, cannot outweigh the more recent declaration coming directly from his majesty himself.
On the comparative weight of these declarations, I shall say nothing, nor shall I do more to repel the first part of the insinuation (that the minister's declaration was that only of the individual) than to submit to your excellency my letter of the 20th of December, 1806, claiming from that minister an official interpretation of the decree in question, and his answer of the 24th of the same month, giving to me the interpretation demanded.
To your excellency, who, as late as the 21st of August tast, considered the minister of marine as the natural organ of his majesty's will, in whatever regarded the decree aforesaid, and who actually applied to him for information relating to it, this allegation of the council of prizes, and the reasoning founded upon it, cannot but appear very extraordinary, and will justify me in requesting that his majesty may be moved to set aside the decision in question, on the ground of errour in the opinion of the council.
If, in support of this conclusion, 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 assign to this omission its true cause. It would surely have been a useless formality to appeal to authorities, not only practically, but even professedly extinct. In the letter of the minister of justice, of the 18th of September, we are told by his majesty himself, that “ since he 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 predecessor, of the 20th of November, 1806, we have these memorable words:
“ England has declared those places blockaded, before which she had not a single ship of war.
“She has done more, for she has declared in a state of blockade, places, which all her assembled forces were incapable of blockading-immense coasts, and a vast empire.
“ Afterwards, drawing from a chimerical right, and from an assumed fact, the consequence that she might justly make her prey of every thing going to the places laid under interdiction, by a simple declaration of the British admiralty, and of every thing arising therefrom, and carrying this doctrine into effect, she has alarmed neutral navigators, and driven them to a distance from ports whither their interests attracted them, and which the law of nations authorized them to frequent.
“ Thus it is, that she has turned to her own profit, and to the detriment of Europe, but more particularly of France, the audacity with which she mocks at all rights, and insults even reason itself.
" Against a power which forget to such a pitch all ideas of justice, and all humane sentiments, what can be done, but to forget them for an instant one's self ?"
Words cannot go farther to show the extinguished authority, in the one case, of the treaty subsisting between the United States and his imperial majesty, and, in the other, of the law of nations: to appeal to them, thercare, would be literally appealing to the dead. Accept, sir, &c. &c. &c.
JOHN ARMSTRONG: To his Excellency the Minister of
General Armstrong to Mr. Madison. Paris, Dec. 1, 1807.
SIR,I have this moment received a letter from his majesty's minister of foreign relations, of which I subjoin a copy, and am, sir, &c.
TRANSLATION, M. Champagny to General Armstrong. Milan, Nov. 24,
1807. Sir,--The execution of the measures taken against the English commerce has frequently caused reclamations on your part. The intention of his majesty, without doubt, is, that every particular abuse may be repressed: but the federal government cannot make any complaint against the measures themselves; and while the United States allow that their vessels may be visited by England, that she may drag them into her ports, and turn them from their destination ; while they do not oblige England to respect their flag, and the merchandise which it covers; while they permit that power to apply to them the absurd rules of blockade which it bas set up with the view of injuring France; they bind themselves by that tolerance towards England to allow also the application of the measures of reprisals which France is obliged to employ against her. His majesty regrets, without doubt, to have been forced to recur to such measures : he knows all that