State Papers and Publick Documents of the United States from the Accession of George Washington to the Presidency

EXTRACTS FROM COMMUNICATIONS FROM CONSULS OF THE UNIT ED STATES, RELATIVE TO DEPREDATIONS COMMITTED ON THE COMMERCE OF THE UNITED STATES, BY THE FRENCH.

Copy of a Letter from M. Roquesante, Consul of the French Republick, at Cadiz, to Joseph M. Yznardi, Consul of the United States, at the same place, dated September 12, 1796. CITIZEN CONSUL,-I received your despatch of the 12th September, (O. S.) in which you desire to know my opinion on the subject of the American prize vessel, called the Mercury, commanded by captain Samuel Brooks, of your nation, captured by the two French privateers, La Droit de L'homme, and L'Escamoteur, and brought into Tarifa, the day before yesterday.

The arret of the Executive Directory, dated 12th Messidor, which I annex to my despatch, will inform you of the reasons which have authorized our cruisers to arrest the American vessel in question.

The bill of health, which was found on board of this American brigantine, shows, that this vessel was bound for Gibraltar, where she was going to sell her cargo, consisting of flour, pitch, tar, &c.-it is therefore evident that these provisions and munitions of war, were destined for the enemies of the Republick. In consequence of the proofs which evidence the succours which it was attempted to carry to this power, with which France is at war, and of the arret of the Directory, of the repeal of which I have no knowledge, I do not at present see how I can avoid pronouncing my judgment in favour of the captors and owners. In the mean time, to give you an unequivocal proof of the desire entertained by my government, to maintain the good understanding which prevails between it and yours, I inform you, that I shall not pronounce judgment upon this prize, until I shall have obtained new information, and for this purpose I am about giving orders to my chancellor, to go to Tarifa, to proceed accordingly.

Malaga, January 28, 1797. SIR,-Soon after I had the honour of addressing you my former letter, No. 10, dated the 10th November, of last year, a most cruel instance of injustice happened at this port with two of our vessels, viz. The brig Rover of Baltimore, Arthur Smith, master, and the schooner Nancy of Alexandria, Virginia, commanded by Job Palmer; both of them brought from hence cargoes of sugar and coffee to this port, where, on account of the high duties paid on landing, makes the importation next to a prohibition, a sale, however, took place afloat and the vessels were to proceed, and deliver these cargoes at Tangier, a free port in Morocco, to be re-shipped there on others for a market, at this juncture, a small French privateer called the Ferret, belonging to Marseilles, and commanded by Anthony Daumas, lay here, who made sail at the same time of the Nancy and Rover, getting under way, and captured them while they were yet within gun shot of this territory, and brought them back with the French flag flying on their fore-topmasts, manned with Frenchmen, all their papers seized and put into the hands of the French consul here, who pretends to have a prior right for adjudging all cases of this nature in his chancery, although they belong to neutral powers. When I called on the consul to know the motive of stopping the vessels, I learned from him it was founded on a suspicion of their going to an enemies' port, (say Gibraltar) another motive was the Nancy's carrying thirty pipes of wine which the supercargo on board her, had pur. chased here for his account, which he intended to carry home, but I believe had not yet drawn out a bill of lading to produce; another motive was, that an English passenger on board the Rover, was seen breaking up a remnant of paper, at the time of the French crew boarding her; either of which said circumstances, he said, was a sufficient motive for condemning the property, according to the established marine laws of the French Republick. After hearing these vague insinuations from the consul, I judged it highly proper to call on the Spanish government for getting the vessels and cargoes liberated from the French chancery, and to decide the business conformable to what they were bound to do by the 6th article of the treaty concluded with the United States of America; but such was the timidness I found then about meddling with any matter that had any connection with French interest, that I could not obtain any redress until the captain general of Malaga, consulted the court.I also carried my claim there, and after many remonstrances made to the Secretary of State, about our ships being taken when within gun shot of this territory, he was prevailed on to order the general at Malaga to withdraw the American papers out of the French chancery, and that he should let the consul know his Catholick majesty's displeasure in wanting to establish a jurisdiction in Spain, not yet allowed to any nation at no time whatever; this circumstance has in no respect yet better

ed the case, for the consul has on two occasions given a flat denial to the king's order, and wont give up the papers until he is desired to do it by the Directory in Paris. During this interval of knowing who is to decide the business, the consul has passed sentence on the Nancy, condemning the thirty pipes of wine as lawful prize to the captors, with costs of chancery, which is ten pounds sterling, for the neglect of not carrying a bill of lading; putting the ship and remainder of the cargo at liberty. The Rover would appear to be under worse circumstances, whereas both ship and cargo are liable to forfeiture on account of the circumstance of breaking a paper at the time of capture. Whatever may be the issue of this unlucky business, I shall take care, sir, to acquaint you, by which means you will be informed of the treatment shown by the French to our flag, and the backwardness of the Spaniards by not redressing such depredations done to the colours in their ports. I send you enclosed a copy of the consul's sentence, and his answer to a letter I wrote him, making an inquiry of all the papers that neutral vessels should have on board to satisfy the French cruisers, for my government. I have the honour to be, &c.

MICHAEL MURPHY.

Consulate of Malaga, French Republick.

LIBERTY.

EQUALITY.

FRENCH REPUBLICK.

WE, Nicholas Maurice Champre, consul of the French Republick, with the kingdom of Granada, resident at Malaga, authorized by the laws of the 3d of Brumaire and 8th of Floreal, of the 4th year of the Republick, to pronounce on the validity of prizes brought into the ports within the limits of this consulate by the ships or privateers of the Republick, having seen the collection and inventory of the papers found on board of the Anglo American schooner the Nancy, captain Job Palmer, taken by the French privateer La Ferret, captain Anthony Daumas, arrived at Marseilles, as well as sundry other documents exhibited, as well by the said citizen Daumas as by the said captain Palmer, and. by William Bartleman, supercargo on board of the said schooner. The said collection, and inventory executed by citizen John Baptist Pelieu, chancellor of the consulate, agreeably to the said law of the 3d Brumaire, 4th year.

Having also seen the instruction given by the said chancellor, consisting of the interrogatories and declarations by him received from the said captain Palmer, the said supercargo Bartleman, the pilot Joseph Quill of the said schooner, and from the citizen Daumas and several officers and others on board of the said privateer, among others from Anthony Joseph Daumas, prize master on board the said prize, as also the papers containing the said instruction mentioned in the said inventory.

Considering on the one hand that the only motives of detention of the Nancy, alleged by citizen Daumas and his officers, both in the process verbal written at sea, and in their declarations, consist, 1st. That the destination of this vessel was Gibraltar. 2d. That it might be presumed that the supercargo was an Englishman.

That these two motives are destitute of foundation; that without examining the unforeseen consequences of the first motive, it is sufficient to observe that the destination for Gibralter was assigned to the Nancy in a preceding voyage; after which this vessel had come from Gibraltar to Malaga, and her charter party proves that she went from Malaga to Tangier on a voyage entirely neutral, and from which neither delivery nor sale was to take place with the enemies of the Republick; that this same act contains indeed a conditional clause in virtue of which the Nancy might make the same voyage to Gibraltar, in the case provided for in the clause; but that a conditional destination, and for a voyage which concerns only individuals of a neutral nation, as is explained sufficiently in the charter party, cannot give a motive to the lawfulness of the capture of a neutral vessel. That the objection which concerns the supercargo is not better founded, since it is proved by the declaration making part of the instruction, and by written proof that the supercargo was born at Fairfax in America, and that at 14 years of age, he was bound an apprentice to a merchant.

That the Nancy is furnished with all the papers required by the laws of France for proving the neutrality of the vessel; considering on the other hand that the papers relative to her cargo are not in the same situation; that her supercargo has declared that he had on board among other merchandise 30 pipes of Malaga wine, which are not entered on any of the vessel's papers; that the said supercargo has it is true produced a bill of lading of them, which was found on board in the drawer of his table, but two days after he was brought into this port by the said privateer, and when it was proved also by the declaration of the said Bartleman that he had returned on board the schooner, after he had been on shore; whence it results that this bill of lading has probably been fabricated on shore after it was too late, and carried on board, and consequently it should be deemed as invalid; that hence according to the 6th article (not abrogated by any posterior laws) chapter IX, book 3 of the marine ordinance of 1681, these thirty pipes of wine are within the confiscatory clause.

That the objection made by Wm. Bartleman, grounded upon the Ferret's having sailed from the port of Malaga a little after the Nancy, appears to be of no consequence, 1st, because the rule generally adopted, which establishes an interval of twentyfour hours between the sailing of a vessel and that of an enemy ship going against her, cannot be applied to the respective sailing of vessels of two neutral powers. 2d, because in the present war upon the ocean, the enemy of the Republick being

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State Papers and Publick Documents of the United States from the Accession ...