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ACCOMPANYING THE PRESIDENT'S MESSAGE OF NOVEM
BER 8, 1809.
[Continued from Vol. VI.]
Ertract of a Letter from Mr. Madison to Gen. Armstrong.
Department of State, July 22, 1808. * Your despatches by lieutenant Lewis were delivered on the 3th instant.
It is regretted that the interval between his arrival and the date of your letter to M. Champagny, during which I presume some verbal intercommunication must have taken place, had produced no indication of a favourable change in the views of the French government with respect to its decrces; and still more that instead of an early and favourable answer to your letter, it should have been followed by such a decree as is reported to have been issued on the 22d April, at Bayonne. The decree has not yet reached the United States, and therefore its precise import cannot be ascertained. But if it should be, as it is represented, a sweeping stroke at all American vessels on the high seas, it will not only extend our demands of reparation, but is rendered the more ominous with respect to the temper and views of the emperor towards the United States by the date of the measure.
The arrival of Mr. Baker with my letter of May 2d, of which a copy is herewith sent, will have enabled you to resume the subject of the decrecs with the fairest opportunity that could be given to the French government for a change of the unjust and unwise course which has been pursued, and I assure myself that you will not have failed
to turn the communications with which you are furnished to the best account. If France does not wish to throw the United States into the war against her, for which it is iinpossible to find a rational or plausible inducement, she ought not to hesitate a moment, in revoking at least so much of her decrees as violate the rights of the sea, and furnish to her adversary the pretext for his retaliating measures. It would seem as if the imperial cabinet had never paid sufficient attention to the smallness of the sacrifice which a repeal of that portion of its system would involve, if an act of justice is to be called a sacrifice.
The information by the return of the Osage from England is not more satisfactory than that from France. Nothing was said on the subject of the Chesapeake, nor any thing done or promised as to the orders in council. It is probable that further accounts from the United States were waited for, and that the arrival of the St. Michael will have led to a manifestation of the real views of that governinent on those and other subjects. In the mean time it cannot be doubted that hopes were cherished there of some events in this country favourable to the policy of the orders, and particularly that the offensive language and proceedings of France, would bring on a hostile resistance from the United States; in which case the British governinent would be able to mould every thing to its satisfaction. There is much reason to believe that if the British government should not concur in a mutual abolition of the orders and of the embargo, it will result from an unwillingness to set an example which might be followed and might consequently put an end to the irritating career of her enemy, on which the calculation is built. Might not use be made of this view of the matter in those frank and friendly conversations which sometimes best admit topicks of a delicate nature, and in which pride and prejudice can he best managed, without descending from the necessary level? In every view it is evidently proper, as far as respect to the national honour will allow, to avoid a style of procedure which might co-operate with the policy of the British government, by stimulating the passions of the French."
General Armstrong to Mr. Madison. Paris, Nov. 12, 1807.
Sir,-It was not till yesterday, that I received from Mr. Skipwith a copy of the decree of the council of prizes in the case of the Horizon. This is the first unfriendly decision of that body under the arret of the 21st of November, 1806. In this case, and on the petition of the defendant, the court has recommended the restitution of the whole cargo. I did not however think proper to join in asking as a favour, what I believed myself entitled to as a right. I subjoin a copy of my note to the minister of foreign affairs, and am, sir, &c.
The Same to M. Champagny.* Paris, Nov. 12, 1807.
Sir,—The document to which these observations are prefixed will inform your excellency, that an American ship, trading under the protection of the laws of nations, and of particular treaties, and suffering shipwreck on the coast of France, has recently been seized by his majesty's officers, and adjudged by his council of prizes as follows, viz.
6. Our council puts at liberty the American vessel the Horizon, shipwrecked the 30th of May last, near Morlaix, and consequently orders that the amount arising from the sale legally made of the wreck of the said vessel, together with the merchandise of the cargo, which, according to an estimate made in presence of the overseers of the administrations of the marine and custom house, shall have been acknowledged not to proceed from English manufactures, nor from English territory, shall be restored to captain Mac Clure, without deducting any other expenses than those relative to the sale: and with regard to the other merchandise of the cargo, which, from the result of the said estimate, shall be acknowledged to come from English manufactures, or English territory, by virtue of the 5th article of the decree of the 21st of November, 1806,
* Note of General Armstrong.-" In the former copy nearly a page of this letter was omitted by the copier."
it shall be confiscated for the use of the state : the whole to be sold by the forms prescribed in the regulations, and the application of the product to be made in conformity to the arrangements of the said decree ; deduction being made for the expense of saving the goods, and that of the support of the crew, until the day that the captain shall receive the notification of the present decision."
The reasons upon which this decision is founded are at once so new, and so alarming to the present friendly relations of the two powers, that I cannot but discuss them with a freedom, in some degree proportioned to my sense of their novelty and importance.
“Considering," says the council,
“ 1st. That the neutrality of the ship and cargo were sufficiently established, the whole ought to be restored (agreeably to the provisions of the convention of the 30th of September, 1800) provided no merchandise of English origin had been found in her, and of course, that she had not been brought within the limits of the imperial decree of the 21st of November, 1806."
Here is an open and unqualified admission, that the ship was found within the rules prescribed by the convention of 1800; that, according to these rules, her cargo and herself ought to have been restored ; and that such would have been the fact, but for the operation of the decree of the 21st of November, 1806.
In the letter your excellency did me the honour to write to me on the 7th of October last, you thought it "easy to reconcile the obligations of this decree with the preservation of those arising from treaties." It was not for me to examine the means by which this reconciliation was to be effected: they no doubt fully existed, and yet exist, in his majesty's good pleasure ; and, taking for granted this fact, I saw in the opinion nothing but proofs of friendly dispositions and pledges, that these were not to be either wantonly destroyed or diminished. How inauspicious, however, to its authority, and the consolations derived
from it, is this recent act of the council of prizes? an act pro which explicitly acknowledges the opposite characters and
conflicting injunctions of these two instruments, and which of course draws after it considerations the most serious to the government of the United States.
The second reason of the council is
" That the decree declaring (British) merchandise good prize, had principally in view captures made on the high seas ; but that the question, whether shipwrecked goods ought to be restored, or confiscated, having always been judged under the 14th article of the regulation of the 26th of July, 1778, and according to their character (which might have rendered lawful, or have even commended their seizure at sea) there is no room to introduce in this case any new distinction, which, however philanthropick it may appear, has not as yet been adopted as a rule by any maritime nation."
The dotrine resisted in this passage, and which incul. cates the duty of extending protection to the unfortunate, is not new to his majesty's council of prizes. They have themselves consecrated it by their decision of the 5th of March, 1800. By that decision they restored an enemy's ship (the Diana) on the single reason, that she had been “i compelled to enter a French port by stress of weather." “ I should equally fail,” says the attorney general, “ in respect to myself, and to the council, before whom I have the honour to represent the government, were I not to maintain a principle, consecrated by our laws, and by those of all nations. In all circumstances, let the loyalty of the French government serve as the basis of your decisions. Prove yourselves at once generous and just ; your enemies will know and respect your magnanimity.” Such was the principle adopted by the council in the year 1800, and in the case of an enemy's ship; yet, we are now told, that this very principle, so honourable 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 enemy's ship is again thrown on the French coast ? No: it has been reserved for the wreck of a neu. tral and friendly vessel! for a ship of the United States ! It is not denied, that had this ship escaped the rocks and made the port of Morlaix, the only inhospitality to which she would have been exposed (under the most rigorous interpretation of the law in question) would have been that of being ordered again to sea. Has then the misfortune of shipwreck so far altered her condition, as to expose her to the injury, of confiscation also ? and is this among the