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additional evidence which is promised to be produced upon the fact of the French retraction of their decrees, faid to have been very recently received from Paris, by the American charge d'al. faires in this country. Having no oficial means of cominunication with foreign ministers, I shall hope to receive the information in a regular manner, through the tranfmiffion of the British offi. cers of state.
Final adjudication fufpended. Extract of a letter from Mr. 7. S. Smith to the Secretary of State, dated
“London, 16th June, 1811. "On the 9th instant the day after Mr. Ilamilton left town with my despatches, I received the enclosed note from lord Wellesley, appointing Tuesday the 11th to see me at his house. I immediately wrote to captain Dent, to detain the frigate, until he heard from me again, but he had gone to sea before my letter reached Cowes, and I am now compelled to send this by another opportunity.
“I waited on lord Wellesley, according to his appointment. He commenced the conversation by observing that, whenever there was any thing of importance to be communicated, it was better to do it in writing, as when merely verbal it was liable to be misunderstood; that he did not mean any thing personal to me; that the same rule was observed by the other foreign agents here, and was customary. I replied that I was ready to pursue this system; that in the note which I had written bim, inclosing the non-importation act, I had not gone into a lengthy diseussion, as that whatever I might say would be on. ly a recapitulation of what had so often been written. I however proceeded to explain the new act, and to remark to him the particularly amicable nature of the second section of it ; that I conceived this to be a most favorable opportunity for Great-Britan to abandon her system of restrictions; and particularly at this moment, when I had communicated practical instances of the repeal of the obnoxious measures of France. He said he did not think they would do any thing before they heard from Mr. Foster, who had full instructions upon this, and other points in dispute.
" I turned the conversation to the subject of your letter of the 22d of January, and asked him if Mr. Pinkney had given any esplanations about the taking possession of West Florida. He replied, that the first he had heard of it, was through Mr. Morier, though he had reason to expect something from Mr. Pinkney; that Mr. Foster, however, was instructed on this point. I asked if East Florida was included in these instructions? He replied that it was. I then communicated to him the substance of your letter, and explained with frankness the intentions of the United States. He expressed his wish that this, as well as the other subjects, should lay over until they beard from America.
"I shewed him the letter of the President to his majesty, containing Mr. Pinkney's permission to return. He said, that it wou d be, proper that I should write him a nete, inclosing this letter, and requesting him to present it to the prince regent.
«The vessels detained here under the orders in council, have not yet been finally condemned, and I represented to lord Wellesley how important it was, that they should be released, or that they should be still suspended. He said that he desired it also, but that private rights being concerned, it was difficult for government to interfere for their longer suspension. I am induced to believe that they will wait until they hear from Mr. Foster."
Extract of a letter from John Spear Smith, Esq. to the Secretary of
State of the United States, dated “ London, 27th June, 1811.
“ I have the honor to inclose a copy of the final decision of Sir William Scott, in the case of the Fox and others.
“ The court, on Tuesday last, the 25th inst. condemned the remaining American vessels captured under the orders in council. As soon as I can procure a correct list of them, I will have the honor to forward it. The seamen, who are left destitute by these condemnations, will be taken care of by general Lyman. They are of course numerous.”
Sir Wm. Scott's sentence in the case of the Fox, &c.
Judgment resumed. Sir William Scott.--- As the claimants have failed to produce any evidence of the revocation of the French decrees, and have nothing to offer as the foundation of a demand for further time, I must conform to what I declared on a former day, and proceed to make the decree effectual. I should certainly have been extremely glad to have received any authentic information tending to shew that the decrees of France, to which these orders in council are retaliatory, had been revoked ; and it was upon a suggestion offered on the part of the claimants, that dispatches had been very recently received from Paris by the American minister in this country, by which the fact might be ascertained, that the court on the former day deferred its final judgment. It would have been unwilling to proceed to the condemnation of these vessels, without giving the proprietors the opportunity of she wing that the French decrees, on which our orders in council are founded, had been revoked. But they admit that they have no such evidence to produce ; the property of the ships and cargoes is daily deteriorating, and it is my duty to delay no longer the judgment which is called for on the part of the captors.
From every thing that must have preceded, and from every thing that must have followed the revocation of the French decrees, if such revocation had taken place, I think I am justified in pronouncing that no such event, has ever occurred. The only document referred to on behalf of the claimants is the letter of the person styling himself Duc de Cadore. That letter is nothing more than a conditional revocation : it contains an alternative proposed, either that G.Britain shall not only revoke her orders in council, but likewise renounce her principles of blockade, principles founded upon the ancient and established law of nations ; or that America shall cause her ‘neutral
rights to be respected ; in other words, that she shall join France in a compulsive confederation against this country. It is quite impossible that England should renounce her principles of blockade to adopt the new-fangled principles of the French government, which are absolute novelties in the law of nations ; and I hope it is equally impossible that America should lend herself to an hostile attempt to compel this country to renounce those principles on which it has acted,in perfect conformity to ancient practice and the known law of nations, upon the mere demand of the person holding the government of France. The casus fæderus therefore, if it may be so called, does not exist ; the conditions on which alone France holds out a prospect of retracting the decrees, neither are nor can be fulfilled. Looking at the question therefore, a priori, it cannot be presumed that the revocation has passed. On the other hand, what must have follow. ed if such had been the fact? Why, that the American minister in this country must have been in possession of most decisive evidence upon the subject; for I cannot but suppose that the first step of the American minister at Paris would have been to apprize the Ameri. can minister at this court, of so momentous a circumstance, with a view to protect the American ships & cargnes which bad been brought in under the British orders in council. If no such information has been received by him, there never was a case in which the rule “De non apparentibus et non existentibus eadem est ratio" can more satisfactorily apply. For it is quite impossible that such a revocation can have taken place without being attended with a clear demonstration of evidence that such was the fact.
I am, therefore, upon every view of the case, of opinion that the French decrees are at this moment unrevoked. But if by any possikility it can have happened that an actual revocation has taken place against the manifest import of the only public French declaration referred to, and without having been yet communicated to the American minister in this country, who was so much concerned to know it, for the benefit of the persons for whose protection it must have been principally meant; the parties will have the advantage of the fact if they can shew upon an appeal that those decrees have been revoked át a time and in a manner thai could justly be applied to the determination of these causes; revoked at a period which would reach the dates of this capture, and in a manner unincumbered with stipulations, which it was well known this country could never accept, and to which there was every reason to presume that the justice of America could never permit her to accede, upon the refusal of G. Britain. On such a state of evidence the claimants will carry up with them to the superior court, the principle that might entitle them to protection according to the view which this court has taken of the subject. But things, standing as they do before me ; all the parties having acted in a manner that leads necessarily to the conclusion, that no bona fide rcvocation of the Berlin and Milan decrees has taken place; I must consider these cases as falling within the range of the British orders in council, and as ,;" ch they are liable to condemnation.
Documents to le continued.]
No. 17.] TWELFTH CONGRESS....First Session.
[Documents---Continued from No. 16.]
Extract of a letter from Mr. 7. S. Smith to the Secretary of State, dated
London, July 10th, 1811. “ Enclosed is a list of the American vessels that have been condemned at the late sittings of the court of admiralty. Two only of them have not yet been decided upon; they will, however, share the fate of the others. Vessels and cargoes will be sold, and the money deposited in court to await for twelve months the appeal of the captured, from which very little is, I fear, to be expected.”
Mr. J. S. Smith to the Secretary of State.
London, 22d July, 1811. I have the honor to enclose a copy of Mr. Russell's letter to me of the 14th inst. which contains the agreeable intelligence of the release of three of the captured American vessels. I shall communicate its substance to this government without the formality of an official note, supposing Mr. Foster is fully instructed on the subject of the orders in council, and that any thing I might under these circumstances of fer would be attended with no advantage. I inclose alsp a letter from Mr. Russell of the 5th instant. I have the honor to be, &c. &c. &c. (Signed)
J. S. SMITH. The papers that came in this letter make part of the inclosures in Mr. Monroe's letter to Mr. Foster of the 17th October, and are printed with it, see page 57. Extruct of a letter from 4. S. Smith Esq. to the Secretary of State of
the United States, dated “London, 15th August, 1811.
“I have now the honor to transmit to you lord Wellesley's answer to my note covering Mr. Russell's letter of the 14th July, and also another note from his lordship on the same subject, which I received last evening."
The papers that came in this letter make part of the inclosures in Mr. Monroe's letter of the 17th October, to Mr. Foster, and are printed withèt, see page 57.
Correspondence of Jonathan Ruffell, Esq.
Mr. Russell, to Mr. Smith, Secretary of State. Sir,
Paris, January 16, 1811. Your letter of the 8th of November, relative to the powers giver by this government to its consuls in the United States, under its decree concerning licences, was received by me on the 11th instant, and the next day I communicated its contents to the duke of Cadore in a note, a copy of which you will find enclosed. I remain, &c. &c. (Sigaed) JONATHAN RUSSELL.
Mr. Russell to the Duke of Cadore, SIR,
Paris, January 12, 1811. The public journals and letters from general Armstrong have announced to the American government an imperial decree, by which permission is to be granted to a stated number of American vessels, to import into France from certain ports of the United States, the articles therein specified, and to export in return such productions of the French empire as are also enumerated in said decree. This trade, it would appear, is to be carried on under the authority of imperial licences, and can only be perfected by the act of the French consul residing within the jurisdiction of the United States at the specified ports.
The United States have no pretension of right to object to the operation of commercial regulations, strictly municipal, authorized by the French government to take effect within the limits of its own dominions ; but I am instructed to state to you the inadmissibility on the part of the United States, of such a consular superintendence as that which is contemplated by this decree respecting a trade to be carried on under licences.
France cannot claim for her consuls, either by treaty or custom, such a superintenderce. They cannot be permitted to enjoy such legitimate functions only as are sanctioned by public law, or by the usage of nations growing out of the courtesy of independent states.
Besides, the decree in question professes to invest certain consuls with a power, which cannot be regularly exercised in the U. States without the tacit permission of the American government; a permission that cannot be presumed, not only because it is contrary to usage, but because consuls thus acting would be exercising functions in the United Scates in virtue of French authority only, which the American government itself is not competent to authorize in any a. gents whatever.
If the construction given by the government of the United States to this decree be correct, the government of France should not for a moment mislead itself by a belief, that its commercial agents will be permitted to exercise the extraordinary power thus intended to be given to them. I pray your excellency, &.c. &c. (Signed)