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dor in Spain, (Sir Henry Wellesley,) a letter addressed to the British viceconsul at Algiers. In this letter, Mr. Keene's object is represented to be humane in its character, and growing out of the instigation of American merchants residing at Cadiz. As such, he is recommended to the assistance and protection of the British vice-consul.
So prepared, and receiving a letter of instructions from Mr. Noah, dated Gibraltar, January 20th, 1814, Mr. Keene proceeded for Algiers. It is not necessary to state all that took place there, as described in his letter to Mr. Noah, written from Algiers May the 22d, 1814. On his first arrival, he was reported as the bearer of despatches from the Spanish regency to their consul. He then opened his negotiation on the asserted instigation of the American merchants at Cadiz. In the end, he obtained the release of two of the crew of the Edwin, viz: William Turner and John Clark; for each of whom he claimed an allowance of three thousand dollars. He effected, also, the liberation of four other individuals, not of the crew of the Edwin, but who all swore that they were born in New Orleans. These men were not, in fact, in actual slavery. They had been landed at Algiers in April, 1814, from on board the British frigate Franchise. The account which they gave of themselves was, that they sailed from New Orleans in 1806, bound to Bordeaux; that, on their arrival at the latter place, they were, by orders from the Government, sent on board the French frigate Dromedary; that this frigate was captured near Malta by the British frigate Euryalus; that they were sent as prisoners to Malta, and afterwards placed on board the Franchise, from which they were landed at Algiers as aforesaid. For these four men Mr. Keene paid six thousand dollars.
To meet the expenses thus incurred, and others growing out of the operation, (such as the compensation of Mr. Keene, losses on exchange, and other incidental charges,) Mr. Noah drew bills on the Department of State for 18,743 dollars, in favor of Mr. Butler, a merchant at Gibraltar. These bills were protested, upon the ground that Mr. Noah had not acted in conformity with his instructions. It afterwards appearing, from the representations of our consul at Gibraltar, that, at the time of drawing, Mr. Noah had shown his instructions to Mr. Butler, who had negotiated his bills upon the faith of them, and likewise that it was important to our naval operations in the Mediterranean that the credit of the agents of the United States should be sustained in that quarter, it was thought proper to accept the bills. After acceptance, but before payment, information was received that part of a sum of money which had fallen into Mr. Noah's hands at Tunis had been pledged by him to Mr. Butler for payment of the bills, in case they were not paid here. On receiving this information, the department declined making the payment at first intended. The bills were then returned to Mr. Noah, who paid them at Tunis, out of the money stated as above to be in his hands. This money was placed in his hands by Commodore Decatur. It had been wrested by the latter from the Bey of Tunis in payment of certain English prizes belonging to Winslow Lewis, of Boston, and sent into Tunis by the privateer Abelino, Captain Weyer. Captain Weyer being at Tunis, constituted Mr. Noah, by letter of January 16th, 1815, agent for such prizes as he should send into that port. It was in the capacity of agent for the privateer that Commodore Decatur paid over the money to Mr. Noah.
On learning the above facts, Mr. Lewis addressed a claim to the De
partment of State, alleging that he ought to be paid the amount of the bills, to satisfy which his funds in the hands of Mr. Noah had been thus appropriated, and which had once actually been accepted by the Government. At first, it was intimated to Mr. Lewis that there seemed to be much reason in his claim; but doubts on the propriety of satisfying it afterwards arose, on becoming acquainted with the private capacity in which Mr. Noah had received the funds, and the whole concomitant cir
On mature consideration of the foregoing facts, I proceed to offer such opinions as I have formed on the questions stated in the beginning.
1. In order to a just comprehension of the first question, the general nature of Mr. Noah's instructions must be adverted to. It is conceived that they are to be viewed as merely subordinate to the principal objects of his appointment. A distinct, independent mission for the release of the captives, does not appear (at that time, at least, and in the person of Mr. Noah) to have been in contemplation. About to depart as a consul for Tunis, this duty was devolved upon him as incidental to his primary and permanent movement. The execution of it is made to depend, by every just implication, upon fit concurring circumstances. There is nothing positive in the character of the obligation created in him to fulfil it; a limited door merely being opened for discretion to do its sound office. As little did it fall within their scope to impart any costliness to the attempt, and least of all to invest it with any circumstances of publicity. Still I think that, taken as an abstract question, the employment of an agent may have been justified under his power. On a favorable aspect of events, inviting him to go forward in the object, the instrumentality of some third person at Algiers, selected under the expressed cautions and implied restraints held out, may have become indispensable to its accomplishment.
I am quite as clear in the opinion that the true meaning of the instructions was lost sight of by the employment of Mr. Keene, and in the manner stated.
I perceive, in the first place, no authority for the amount stipulated and paid as his compensation. Three thousand dollars was the maximum to be allowed for each man. This sum, with the expenses incident to the comfortable return of the captives, if released, are the only disbursements for which I am able to discover any warrant in the instructions. If it be objected that, on the hypothesis of an agent rightfully employed, some compensation would reasonably be due for his services, I would reply, that Mr. Noah's contract with Mr. Keene has, in one part of it, furnished the answer. A contingent reward is held out to him out of moneys to be saved from the three thousand dollars allotted as the highest price for each redeemed captive. I can see no authority to have placed the reward upon any other than this footing. The department, in fixing three thousand dollars as the utmost sum, must have designed that it should comprehend every expense necessary to cover the release. I am driven to this conclusion in the absence of any express authority to incur the cost of a separate agency; and am the less disposed to infer such an authority constructively, since the instructions terminate with an engagement to defray the charges of a passage home, leaving out of view every other object. The words, "necessary funds for paying their ransom," in the last sentence, must be restricted to the three thousand dollars. A good
reason may be imagined for placing the reward upon this contingent ground. The self-interest of the agent would thereby have coupled itself with his efforts to effect the redemption at low rates. If, through any extraordinary exertion and hazards, resulting in benefits of proportionate magnitude, a claim had been founded to other and better compensation, this, indeed, might well, in the end, have been addressed to the liberal and kind justice of the American Government. But, for Mr. Noah to pay Mr. Keene an independent sum, and in the first instance, appears to me an act in which he was not justified.
If, however, any doubts should be felt upon this point, there can scarce be any room for any under other views of the employment of this agent. It presents features obviously thwarting the spirit and scope of the instructions in points vitally interwoven with their execution. The steps taken would seem to indicate, on the minds of both principal and agent, the impression of an independent and prominent mission. Instead of any attempts entered upon at Malaga or Marseilles, (which, in the first instance, it might have been natural to expect,) both these places are passed by. Nor does it appear that any effort was made to use the intervention of any individual resident at Algiers, especially some person in a capacity wholly private-a measure also to have been looked for, both as it might have reduced the expense of the enterprise, and interposed additional shields against the discovery of the Government as a party to it.. But, grant that the force of such suggestions may be overruled, and that Cadiz was the fit place whence to give the operation its first impulse: yet how shall we reconcile the conduct that followed, with the rule marked down in the instructions? To say no more of them, it must be admitted that to exclude the suspicion of the governmental agency is stamped as a leading and positive characteristic. Thus warned, Mr. Noah, in his letter to Mr. Hackley, sets out with distinctly affirming that the United States had invested him with authority. This, although the latter was a consul, does not appear to have been necessary. The same fact is again proclaimed upon the face of a formal contract with Mr. Keene. But yielding to all that might be urged in defence of these disclosures, there seems nothing left to excuse the nature of the voyage to Algiers. It is clothed with something of the livery of an embassy itself. Instead of secrecy and silence, eclat rather marks its movements. A despatch was obtained from the Spanish Government, bearing indications (too plain to be misunderstood) that it was possessed of the real ground upon which Mr. Noah stood. Another official paper is sought at the hands of the British ambassador, as a further passport to Mr. Keene; and all this known to Mr. Noah. What will every well-judging mind say to such facts? Undoubtedly, that they tended to make known the very authority that ought to have been hidden. The despatch from the Spanish regency might also be construed as indicative of a favor supposed to be accorded to the United States. Now, taking this to be one of the meanings of which it is susceptible, it is possible that it might not have been within the intentions of our own Government, in relation to such an enterprise, to invite a favor. Moreover, the letter of Sir Henry Wellesley is asked and accepted, when America and England stood in the attitude of belligerents. Passing over animadversions that hence occur, such measures were just such as were adapted to strip off the veil which Mr. Noah should sedulously have worn. It is against all sound anticipations to
suppose that they did not at once lay his genuine case bare. Secrets are prone to escape through much smaller openings. It is true, that in his note to Mr. Hackley, and in his letter of instructions to Mr. Keene, he adverts to the necessity of keeping his Government out of sight. In the Spanish despatch, there is also an outward allusion to the same necessity. But these (their concealments) need not be the subject of remark, when opposed by the more intelligible and positive indications which pointed to another conclusion, by the open machinery which foreign Governments and functionaries were made to interpose in advancement of the undertaking. Considering that Mr. Keene was provided with both the Spanish despatch and the letter from the English ambassador before the middle of November, and that he did not embark until February, there is no violence done to credulity in supposing that the knowledge of his true objects and authority preceded his own arrival at Algiers. This-and it is no very strained presumption-might serve in part to account for the extravagance which, in the first instance, characterized the Dey's demands. When we look to the actual state of our relations with Spain, as well as England, at that epoch, it can scarcely be going too far to conjecture that neither their policy nor their friendship could have been deeply offended at such demands.
Should such reasoning be thought in anywise defective, in relation to making known the United States as at the bottom of the proceeding, another fact presents itself, of force not to be resisted. It is not to be denied that the affair was ushered in at Algiers as one to which some Government had lent its instrumentality. Mr. Keene, in his letter of the 22d of May, 1814, states that, on his arrival, the public barge came alongside of their vessel, and that he was reported as charged with despatches from the Spanish Government. He states further, that he conducted the negotiation in the name of the regency. Now this appears to me to stand in like hostility to the instructions. The participation, even in a formal or mere exterior way, of any Government whatever, could never have been contemplated by the Department of State. The course of reasoning that would ascribe advantages to such a plan is not easily to be sustained. It is supposed, on the contrary, that it must have been productive of obstacles; and, at all events, it is taken to be against the clearly-expressed intention of the instructions, which was to place the whole interference upon a footing private and unostentatious.
In answer, then, specifically, to the first question, I am of opinion that the power given to Mr. Noah might have justified the employment of an agent; but that it does not justify such an agent as he employed, and in the manner stated.
2. If such an authority was given, could it be considered as justifying Mr. Noah in the payment of the full limit of three thousand dollars, without an experiment being made to obtain the release for a less sum?
This question I am disposed to answer in the affirmative. If an agent be authorized to pay a fixed sum, I do not see that he absolutely violates his authority by paying the whole at once, although a hope may have been entertained, and an intimation thrown out, that the end might probably have been accomplished for less. It may well be an objection against the discreet exercise of the authority. A mind prudent and skilful would be slow thus to act. But I do not feel prepared to say that it would be a positive breach. Circumstances may be conceived, leading to a rational belief beforehand that the smaller sum would not be ac
cepted, which may the more serve to excuse the ceremony of the offer. I do not say that precisely such circumstances existed in the present instance. None are perceived, unless Mr. Noah rested upon the letter of Mr. Hackley. If he yielded his own judgment to that of another, still Mr. Hackley's letter to him does not import an unequivocal opinion upon this point. If it did, he fell into an error. It is a fact too strong to escape attention under this head, that each of the six men brought off was actually obtained for a less sum than three thousand dollars. Upon the whole, however, my opinion is, that looking liberally at the peculiar words of Mr. Noah's power, it was not violated by going to the full limit, without the trial of previous experiments.
3. The third question divides itself into two branches: 1st. As respects the two men belonging to the crew of the Edwin; 2dly. As respects the four landed from the English frigate.
In regard to the two former, I think that the charge must be considered fair. Whilst the employment of Mr. Keene may not have been justified, there are acts in which Mr. Noah may nevertheless be warranted by the intrinsic virtue of his instructions. This I take to be such an act. These two men were, indeed, released through the mediation of the British vice-consul, and delivered up as British subjects. This fact appears from the letter of Mr. Keene. Other evidence is also before me from the Department of State, superinducing strong suspicions that they were not Americans. It is at least of weight to impair the effect of their own affidavits. This will be agreed, when it is stated to be a letter from the captain of the Edwin himself, in which he explicitly disclaims them as Americans. Still, they were of the crew of the Edwin. Those who composed this crew are mentioned in the instructions as captives to be released. Mr. Noah may not have thought himself at liberty to make discriminations between them, or to institute or permit inquiries as to their citizenship. For him, the language of the instructions was sufficient to close the door against other investigations. Mr. Keene here uses a similar shield in the emphatic words of his Spanish despatch.
But different is the case of the four men alleged to be Louisianians. I can discover no authority for allowing the charge on their account. There is not a trace of evidence, beyond their oaths, that they were citizens of the United States. To swear in this way, they had the strongest temptations of personal safety, if we take Mr. Keene's representation (and there is no other) upon the subject; for, although he states that they were not held in slavery, he adds, that there was every reason to suppose they would be. Aside from this powerful objection on the score of interest, all rational presumptions contradict their assertions. It is, to the last degree, probable that they were Frenchmen. They had, by their own accounts, not been in the United States for eight years. They were put on board of a French frigate in 1806, by orders from the French Government. The smattering which they had of the English tongue may well enough have grown up during their subsequent imprisonment on board of English vessels. In their own affidavits, they do not go the length of saying that they were put on shore from the British frigate as Americans. If, according to their own oaths, they were even all born in New Orleans, it must have been before that place became one of the cities of the United States. They may then, nevertheless, from choice or accident, have remained French subjects. But, to waive such a suggestion, the fact of their being genuine American citizens was alike unsupported