[dateline] Passi September 17 1778
We have this Morning the Honour of your Excellencys Letter of the Sixteenth, relative to the french Brigantine the Isabella retaken, by the American Privateer the General Mifflin, from a Guernsey Privateer, after having been Eighty Hours in his Hands.
We have the Honour to agree perfectly, with your Excellency, in your Sentiments of the Justice and Policy of the Principle of Reciprocity between the two Nations, and that this Principle requires that French1
Ships of War or Privateers Should have the Same Advantage <in such>
in Cases of Rescues <or>
and Recaptures, that the American<s>
Privateers enjoy in France.
We are So unfortunate, at present, as to have no Copy of any of the Laws of the United States, relative to such Cases, and are not able to recollect with Precision, the Regulations in any of them:2
But We are informed by Captain McNiell, that by the Law of Massachusetts Bay, if a Vessell is retaken within 24 Hours, one Third goes to the ReCaptors, after twenty four hours, untill 72 hours, one half, after Seventy two Hours, and before 96 Hours, Three Quarters, and after Ninty Six hours the whole.3
All that We have Power to do in this Case, is to convey to Congress a Copy of your Excellencys Letter, and of our Answer,4
and We have
no dout that Congress will readily recommend to the several States <similar>
to make Laws giving to French Privateers, ether the Same Advantages that their own Privateers have in such Cases in their own Ports, or the Same Advantages that the French Privateers injoy in the Ports of this Kingdom, in such Cases, by the Ordinance of the King. And We wish your Excellency would signify to Us, which would probably be most agreable to his Majesty.
If the Case of this Vessell must come before the public Tribunals, upon the Simple Question, whether she was retaken from a Pirate or not, that Tribunal We doubt not will decide, with Impartiality: but We cannot refrain from expressing to your Excellency, that We think the original owner, will be ill advised if he should put himself to this Trouble and Expence.
We presume not to dispute the Wisdom of the ordinance of the King which gives to the Recaptor from a Pirate, only one third; because We know not the Species of Pirates which was then in Contemplation, nor the Motifs to that Regulation. But your Excellency, will permit Us to Observe, that this Regulation is so different from the general Practice and from the Spirit of the Law of Nations, that there is no doubt it ought to receive a Strict Interpretation, and that it is incumbent on the original Proprietor to make it very evident, that the first Captor was a Pirate.
In the Case in Question, the Guernsey Privateer, certainly had a Commission from the King of Great Britain, to cruise against American Vessells at least. But admitting for Argument Sake, that he had no Commission at all. The Question arises, whether the Two Nations of <England an> France and England, are at War or not. And altho there has been no formal Declaration of War on either side, yet there seems to be little doubt that the two Nations have been at actual War at least from the Time of the mutual Recal of Embassadors, if not from the Moment of the British Kings, most Warlike speech to his Parliament.
Now if it is Admitted that the two Nations are at War, We believe it would be without a Precedent in the History of Jurisprudence, to adjudge the Subjects of any Nation to be guilty of Piracy for any Act of Hostility committed at sea against the subjects of another Nation at War.
Such a Principle would for what We see conclude, all the Admirals and other officers of both Nations, guilty of the same offence.
It is not the Want of a Commission as We humbly conceive, that makes a Man guilty of Piracy: But committing Hostilites against human Kind, at least against a Nation not at War.
Commissions are <the best kind>
but one Species of Evidence, that Nations are at War: But there are many other Ways of proving the same Thing.5
Subjects and Citizens, it is true, are forbidden by most civilized Nations to arm Vessells for cruising against even Ennemies, without a Commission from the sovereign: but it is upon Penalty of Confiscation or some other perhaps milder Punishment, not on the Penalties of Piracy.
Moreover, perhaps Prizes made upon Ennemies, by subjects or Citizens without Commission from their sovereigns, may belong to the sovereign not to the Captor, by the Laws of most Nations, but perhaps no Nation ever punished as Pirates their own subjects or Citizens, for making a Prize from an Ennemy without a Commission.
We beg your Excellencys Pardon for detaining you so long, from objects of more Importance, and have the Honour to be