Virginia Argus

[Balt. E Post]

DOCUMENTS

Accompanying the President's Message of the 8th November, 1808.

Continued.

Mr. Madison to Gen. Armstrong.

Department of State.

July 31, 1808

Sir—Herewith you will receive a copy of the papers relating to one of the vessels which were destroyed at sea by the French frigates, returning from the West Indies. I observe that, in your letter to Mr Champagny, of the 3d of April you have incidentally noticed this occurrence. If ample reparation should not have been made to the sufferers, the President thinks it proper that, as their cases become authenticated, you should present them in terms which may awake the French government to the nature of the injury and the demands of justice. The beginning of neutral vessels detained on the high seas is the most distressing of all the modes by which belligerents exert force contrary to right ; and, in proportion as it is destitute of apology, ought at least to be followed by the promptitude and amplitude of the redress. If it be contended that the destruction, in these cases, proceeded solely from the danger that otherwise intelligence might reach a pursuing or hovering force, it may be answered, that if such a plea were of greater avail, it would only disprove a hostility of intention, without diminishing the obligation to indemnify, on the most liberal scale, the injured individuals. It may be added, that if the outrage on the individuals was not meant as a hostility towards their nation; the latter might justly expect a tender of such explanations as would leave no doubt on this subject.

I have the honor to be, &c.

(Signed)

JAMES MADISON.

Gen. Armstrong, Minister Plen. of the U. S. Paris.

Extract of a letter from Mr. Madison to Gen. Armstrong

Department of State,

July 22, 1808

"Your dispatches by Lieut. Lewis were delivered on the 8th inst.

"It is regretted that the interval between his arrival and the date of your letter to Mr. Champagny, during which, I presume, some verbal inter communication must have taken place, had produced no indication of a favorable change in the views of the French government with respect to its decrees; and still more, that instead of an early and favorable 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 U. S. 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 U. S. 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 decrees 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 U. S. into the war against her, for which it is impossible 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 measure. 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 U S were waited for, and that the arrival of the St. Michael will have led to a manifestation of the real views of that government on those and other subjects. In the mean time it cannot be doubted, that hopes were cherished there of some events in this country favorable to the policy of the orders, and particularly, that the offensive language & proceedings of France would bring on a hostile resistance from the U. S. in which case the British government 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 their 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 advance topics of a delicate nature, and in which pride and prejudice can be best managed without descending from the necessary level? In every view it is evidently proper, as far as respect to the national honor will allow, to avoid a stile of procedure which might co-operate with the policy of the British government, by stimulating the passions of the French

Copies and extracts of letters from gen. Armstrong to the Secretary of State, with copies of their enclosures.

Gen Armstrong to Mr. Madison.

(Duplicate)

PARIS, Nov. 12, 1807

SIR,

It was not till yesterday that I received from M. 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 arrete of the 21st of Nov. 1806. In this case, and on the petition of the defendant, the court had recommended the restitution of the whole cargo. I did not however think proper to join in asking as a favor what I believe myself entitled to as a right. I subjoin a copy of my note to the minister of foreign affairs; and am, sir, &c. &c.

JOHN ARMSTRONG.

Note of Gen. Armstrong

"In the former copy nearly a page of his letter was omitted by the copier."

The same to Mr. 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.

" 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 the presence of the overseers of the administrations of marine and custom house, shall have been acknowledged not to have proceeded from English manufactures, not from English territory, shall be restored to Capt. Maclure, 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 manufactures or English territory, by virtue of the 5th article of the decree of the 1st Nov. 1806, they 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 produce 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 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 " to 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 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 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 November 1806

In the letter your excellency did me the honor to write to me on the 7th of October last, you thought it "easy to reconcile the obligation of this decree with the preservation of those arising from treaties." It was not for me to examine the means by which this reconciliation could 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, 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 U. S.

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, 1779, and according to their character (which might have rendered lawful or have even commended their seizure at sea) there is no reason to introduce in this case any new distinction which, however philanthropic it may appear, has not yet been adopted as a rule by any maritime nation."

The doctrine resisted [in] this passage, and which inculcates 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 compelled to enter a French port by stress of weather." I shall certainly fail" says the Attorney General " in respect to. myself and to the council before whom I have the honor 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 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 enemy's ship is again thrown on the French coast? No: it has been reserved for the wreck of a neutral 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 principles which the defender of the maritime rights means to consecrate by his power and 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 U. S. 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 doubtful point, but as a declaration of an anterior and positive disposition."

A distinction is here attempted to be taken between the interpretation of a doubtful point and the declaration of an anterior and positive rule. This distinction cannot be maintained; for if the rule 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 operation 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 explanation 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 18th 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 retroactive quality, apply to events many months anterior 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 J. 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, does 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 follows 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--

1. 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 the authority of one truly ministerial.

It appears to me, as I think it will appear to your Excellency, 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 opinion 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 5th 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 5th Vendemiaire, year 9) evidently cannot be applied to a ship leaving America on the fifth 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.

1. The entire silence of that decree with regard to its own influence over the convention of 1800:

2d. The early period at which the ship left the U. S. 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 5th 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 public--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 last, 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 error 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 an 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 Nov. 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, all 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 ed them, and which the law of nations authorize thein 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 right and insults even reason itself.

"Against a power which forgets to such a pitch all ideas of justice, and all human sentiments, what can be done but to forget them for an instant one's self?"

Words cannot go further to shew 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 therefore would be literally appealing to the dead.

Accept, Sir, &c. &c.

JOHN ARMSTRONG

His Excellency the Minister of Foreign Affairs.

Gen. Armstrong To Mr. Madison.

Paris, 17th Feb. 1808.

Extract.

"Enclosed is a copy of the answer from the minister of marine to my letter of the 13th inst. in relation to the sale of a part of the cargo of the ship James Adams. It would now appear, that the promises of forbearance made by another department are applicable only to vessels sequestered in the ports and not to such as have been captured at sea."

5th division of prizes.

Extract of a letter of the Minister of Marine to Gen. Armstrong, dated Paris, 15th Feb. 1808.

TRANSLATION.

"I observe to you moreover that the question now is not as to a vessel sequestered in port; but as to a prize made at sea, and seized for a contravention of the decree of the 17th of Dec. last; that the provisional sale ordered on account of the "average" is for the interest as well of the captured as of the Captors, and that it is directed according to the case provided for by the regulation of the 2d Prairial, 14th year."

Gen. Armstrong To Mr. Madison.

Paris, 1st Dec. 1807.

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. &c.

JOHN ARMSTRONG.

MR. CHAMPAGNY TO GEN. ARMSTRONG.

TRANSLATION.

Milan, 24th Nov. 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 U. States allow that their vessels may be visited by England, that she may drag them to her ports and turn them from their destination, while they do not oblige England to respect their flag and the merchandize which it covers--while they permit that power to apply to them the absurd rules of blockade which it has set up with a 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 also that the commercial classes may have to suffer in consequence of them, particularly those who having habitual relations with England, using a common language, and often mixing their interests, might more frequently occasion an apprehension of some commercial connivance with the English, inasmuch as they would have greater facility in covering it. This circumstance made it necessary to use towards them precautions more exact, and an unceasing watchfulness, in order not to be exposed to abuses, which might result from a less constant vigilance. But it is not to France, it is to England that these inconveniences to individuals ought to be imputed. She it is who has given the example of measures unjust, illegal and infringing on the sovereignty of nations. To oblige her to renounce them it has become necessary to combat her with her own arms: in violating the rights of all nations she has united them all by a common interest, and it is for them to have recourse to force against her--to forbid her the search (lavisite) of their vessels--the taking away of their crew--and to declare themselves against measures which wound their dignity and their independence. The unjust pretensions of England will be kept up as long as those whose rights she violates are silent--and what government has had more to complain of against her than the United States? All the difficulties that have given rise to your reclamations, sir, would be removed with ease if the government of the United States after complaining of the injustice and violence of England, took with the whole continent the part of guaranteeing itself therefrom. England has introduced into the maritime war an entire disregard for the rights of nations: it is only in forcing her to a peace, that it is possible to recover them. On this point the interest of all nations is the same--all have their honor and their independence to defend.

Accept, sir, &c.

CHAMPAGNY.

General Armstrong to Mr. Madison.

Paris, 5th April, 1808.

Extract.

"I received the dispatches you did me the honor to address to me by Mr. Lewis on the 26th ult.

"Though I had complained often and earnestly of both the principles and operation of the emperor's decrees of November, 1806 and December 1807, (having written at least twenty notes on the different cases which have arisen under them) yet as the President's orders were express, that on receipt of your letter I should superadd to whatever representation might have been previously made, a formal remonstrance against those decrees, I did not lose a moment in writing and presenting the enclosed note; the terms of which will I hope appear to be such as were proper or necessary to the case, and calculated either to obtain a recall of the illegal measures, or to leave in full force the rights accruing to the United States from a failure on the part of France to recall them. To this note I have not yet received an answer, nor have I reason to expect one soon; as the emperor has left Paris (it is said for Spain) and had, at no time before he set out, indicated any alteration in the views which originally produced the decrees in question.

"Mr. Pinkney found means (in the return to the continent of M. D'Alopeus) to communicate the President's views on the subject of the general embargo, & particularly the desire he had that it should not be considered as a measure of hostility against any foreign nation. Some explanations of this kind, were perhaps necessary in England where, from the misrepresentations of our own people, the character of the policy was likely to be misunderstood; but as neither the same, nor any other reason existed for making them here, none have been offered."

(To be Continued.)