From Richard Söderström
Washington 10th. June 1801.
I had the honour of laying before the late Administration of the Government of the United States my respectful complaints of certain irregularities & violations of the Danish Flag which had been committed by some Officers of the American Navy while this Country was engaged in Maritime hostilities with France. My representations were listened to with the attention which the subject required & I had every reason to expect that Justice, such as becomes this respectable Nation would be done to the parties aggrieved. The changes which have lately taken place in the Executive Department have suspended for a while the effects of my application, but have not diminished my prospect of Success. I have a sure pledge of it in the virtues of the great character who now fills the Presidential chair and in the talents & integrity of those in whom he has placed his confidence. I flatter myself that the adjustment of the past will suffer so much the less difficulty that the possibility of any future ground for similar complaints is now entirely removed by the restoration of Amity between the United States & the French Republic.
With full confidence therefore in the magnanimity and Justice of the American Government, I shall now beg leave to draw your attention to Three cases of Capture of Danish Vessels in which I conceive that the sufferers have a right to claim a just indemnity from the Government of the United States.
The first case is that of the Schooner Mercator Capt Touissant Lucas, the property of Mr Jared Shattuck an old established Burgher of the Island of St Thomas and Subject of his Danish Majesty.1 This Vessel being on her way from St Thomas to St Domingo, duly documented as a Danish Vessel was captured on the high seas by Capt Maley2 of the Armed Schooner of the United States Experiment, under the real or pretended suspicion of her being an American Vessel covered by Danish Papers, a Suspicion, Sir, which nothing could warrant unless it were the English-sounding name of the Vessel & her Owner a circumstance common to most Vessels of the Danish Islands. Two days after she had been so captured, she was met with by a British armed Ship, who took & carried her into Jamaica, where she was condemned as Prize, without any reasons whatever being assigned for her condemnation.
I had the honor of writing at large to the late secretary of State respecting that particular case on the 24th of November last. I beg leave to refer you to that letter & those which followed ⟨it,⟩3 Copies of which go herewith, in those letters I urged the claim of Mr Shattuck to an indemnification on the following grounds.
1st Because by the Law of Nations no Country has a right to violate a friendly Flag or to arrest the Vessels of other Nations on the high seas on suspicion of their having infringed a purely municipal law, such as the late act for suspending the intercourse between the United States & France. There is but one instance in History of a claim to such a right having been set up by any power, it was when Spain in the year 1739 searched the Vessels of other Nations, particularly those of England on suspicion of their being engaged in a Contraband trade with her Colonies. Nay she only assumed to search them, within a certain distance, from her Coasts where she might have claimed a Kind of Jurisdiction.
Nevertheless, this pretension was the cause of a long and bloody war between the two Countries and Spain was at last obliged to give up the point. The Speeches of the great Lord Cataret4 in the British House of Peers on that occasion, contain the most convincing Argument in favour of the Doctrine which England succeeded in Establishing for the benefit of the World.
2ndly. Because the act of Congress on which the Seizure was pretended to be founded did not in any manner authorize ⟨it⟩ as it only authorized the Seizure on the high seas of vessels of the United States, a technical Expression clearly excluding Vessels sailing under the Flag & Authority of other Powers.
3dly Because this vessel being unarmed there was no preten⟨sion⟩ for seizing her as an enemy vessel nor indeed could the Cruizers of the United States seize a Neutral Vessel under any suspicion by the just [sic] belli, as no war between the United States & any Country had been declared & notified to the Neutral Powers nor did the limited Kind of undeclared warfare in which the United States were then engaged authorize any such Seizure.
4thly. Because if the Vessels of the United States had a righ⟨t⟩ to seize Danish Vessels & carry them into Port for legal adjudication they were bound to protect them untill they reached the Port to which they were carrying, and not to suffer them to be wrested from them by the Vessels of any power.
5thly. Because it is a Doctrine fully established that the Capto⟨rs⟩ of Neutral Vessels proceed at their peril & are responsible for all consequent injury & Loss & so it was determined by the Supreme Court of the United States in the Case of Delcole Arnold 3 Dallas’s Reports 334.5
These & other arguments (and amongst them was th⟨at⟩ no appeal had or could be made by Mr Shattuck, and if same was not made within a certain time all would be lost) which I urged partly by Letters & partly in the course of conversation with General Marshall, appeared to him so convincing, that before he retired from Office, he had given me reason to Expect that Mr Shattuck would receive from the Government of the United States the indemnity to which he is so justly entitled. I have no doubt but the Same principles of Justice will be found to animate his Successor. The War which has lately broke out between England & Denmark leaves no hopes whatever of obtaining any satisfaction from that quarter.
The next case which I shall now take the liberty to submit to you is that of the Schooner Charming Betsey also the property of Mr Jared Shattuck recaptured from the French by Captain Murray of the United States Frigate Constellation & carried into Martinique where her Cargo was sold & the Vessel detained & afterwards sent to Philada. for adjudication under pretence of her not being a bona fidé Danish Vessel. It would be unbecoming in me to go into a further statement of the facts of this case after the same has been found Specially by the Decree of the District Court of the United States for the Pennsylvania District which has awarded the restitution of the Vessel with Costs & Damages which have been assessed in a regular Course of proceedings & the assessment approved & confirmed by the Court, while this case was pending General Marshall to whom I had preferred my complaint of the Violation of the Neutral flag & applied for redress, answered that the Executive of the United States could not take upon itself to interfere with the proceedings of the Judiciary. I immediately acquiesced & did not urge my application any further but now that the case has received a full & compleat Judicial decision I think that I may renew without impropriety the Claim of Mr Jared Shattuck to be reimbursed by the United States of the Damages which he has suffered by this unjust detention.
That the Govt. of the United States under whose immediate authority Captain Murray acted, who would have been entitled to one moiety of the Prize had it turned out to be lawfull and for whose use as well as that of the Captor the proceedings were instituted in what is called the qui tam are responsible to the aggrieved party equally with the actual & immediate wrong doer is a principle of the Law of Nations which I presume will not be controverted. It is laid down by almost every writer on universal Jurisprudence & it seems to be settled that the illegal Captor & his Government are responsible jointly and in Solidum. Mr. Hubner whose authority is highly respectable, in his treatise on the seizure of Neutral Vessels Vol 1 page 122 Speaking of an unjust Capture made by a French Privateer says “On sent bien que La France doit etre tenue envers le Danemark à l’indemnisation du Navigateur. C est sans doute au Corsaire (Capteur) de rembourser l’Etat des frais qu’il lui a causé par cette saisie illegitime mais c est la une affaire entre le Gouvernement de la France & un de ses Citoyens, qui ne regarde pas la puissance Neutre.”6
The Exclusive right of the tribunals of the Captors Country to try the validity of the Captors of Neutral Vessels has frequently been contested by Neutral Nations & by several eminent writers. Mr Rutherford an English writer & no friend to Neutral Nations while he asserts that Jurisdiction expressly founds it on the right which the Government of the Captors has to inspect into the Conduct of its own officers for which it is responsible. See Rutherf: B.2 C9.7
A decent respect indeed for the modes of investigation which each Government may think proper to adopt, or if you plea⟨se⟩ which an universally received Custom may have established will induce a suspension of a direct application to a Govt. untill that investigation has actually taken place. On the other hand when a decision has been had by a tribun⟨al⟩ of its own appointment, it is not to be presumed that a Government will avail itself of the various modes of delay by Appeal or otherwise which its own institutions may offer unless the first decree should contain a gross & palpable injustice, which is not pretended to be in the present instance. I hope therefore that I shall be found correct in requesting that the Govt. of the United States will be so good as to take into consideration, that the Captain of the Charming Betsey has been waiting here near a twelve month at an immense expence & that they will not permit him any longer to waste his time & his Owners money in pursuing an indemnity which longe⟨r⟩ delays may render almost illusory.
The Third and last case is that of the Ship Henrich8 of Altona, Peter Schul, Master on which subject I have the honor to enclose a letter from General Lindeman, Governor General of the Danish West India Islands. This vessel was Captured on the high Seas by a French armed vessel & re-captured Shortly afterwards by the Armed Brig of the United States, Pickering Capn. Benjn. Hillier9 who carried her into the British Island of St. Christophers where she was libelled as well as her Cargo by Thomas Tingey10 Esqr. Captain of the Armed Ship of the United States the Ganges, as being French Property & lawful Prize & by Captain Hillier for salvage as being a re capture. The Judge of the Court of Vice Admiralty of St Kitts applying to that Vessel & her Cargo, on the suggestion of Captain Hillier a Law of the United States, which was intended to apply to the recapture of American or perhaps of British & other Vessels of the Enemies of France, but not as I respectfully conceive & as I understand the federal Courts have adjudged, to Neutral Vessels, decreed Salvage to Captain Hillier & his crew of one moiety of the gross proceeds of the Vessel and her Cargo, the whole of which was immediately sold or rather sacrificed at an immense loss, so that after deducting the most extravagant charges which were laid on the remaining half of the proceeds, there was left but a trifling balance which the Owners have never claimed nor received.
The time Sir that has necessarily elapsed in procuring the necessary & true documents to lay before the Government of the United states, has prevented this Case from sooner being submitted to their consideration. I beg leave to suggest to you a few reasons in favor of the claim I now have the Honor to make of a just indemnity on behalf of the Owners.
In the first place you well Know Sir that the General Rule which the Law of Nations has laid down as to the recapture of Neutrals by the Vessels of Belligerent Powers, is th⟨at⟩ no Salvage is due, because no meritorious service is performed. The Capture or to Speak more properly, the arrest or Seizure of Neutral Vessels on the high Sea, is merely for the purpose of ascertaining their neutral condition. Condemnation therefore is never presumed and if the Seizure should be illegally made damages are expected to be awarded against the unjust Seizer. There is no ground therefore for recapture. It is an officious interference for which no recompence can or ought to be claimed. Nay in many case⟨s⟩ it is a real injury. During the American Revolutionary Wa⟨r⟩ several Neutral Vessels were recaptured by the French from the British & carried into the Ports of France, where the Captors sued for salvage. The Council of Prizes universally refused it on the principles above stated & their decrees are rendered at large in the excellent work intitled Code des Prises.11 I believe that the same practice has obtained with every other belligerent Nation. I Know of no case in which the British Courts of Admiralty have allowed salvage to the British recaptors of a Neutral Vessel, nor wou⟨ld⟩ it I presume have been decreed in the present instance even in the West Indies had it not been for the wrong statement which Captain Hillier made of the Law of the United States.
In the second place Captain Hillier was a wrong doer in carrying the vessel to a British Port when the Law of Congress as well as his instructions commanded him peremptorily to send his Prizes to some port of the United States. He was wrong also as well as Captain Tingey in libelling the Vessel before a foreign Court which had not & ought not to have assumed any Jurisdiction of the matter unless by Special agreement between the Govt. of the United States & that of Great Britain which I do not presume to have existed, at any rate the responsibility must still rest upon the United States, in case of a manifest injustice committed which has certainly been done by the admiralty Court in St Kitts.
Nor can it be said, I conceive that the owners ought to have appealed from that unjust decree to the Court of appeals in England. The present state of things between Great Britain & Denmark sufficiently shews how idle such a measure would have been, and indeed at all events it is doubtfull whether they would have received the appeal in a Case of which they had no Jurisdiction and after all the recapture having been made under the immediate Authority of the United States, the American Government cannot in Justice drive the party to seek his redress before a foreign tribunal to which the Captor now in this Country is now no longer amenable.
I have the honour further to enclose Extracts first of a work entitled “a concise enquiry respecting the Owners of Private Vessels &ca.” & Secondly of the “recapture of Neutral Vessels from Enemies.”
For the above reasons, Sir, & many more that I could alledge were I not afraid of trespassing upon your patience, I hope you will think it right to indemnify the Owners of the Henrich & her Cargo & the losses they have suffered by the irregular conduct of Captain Hillier. I have the Honor to be with great respect & High Consideration Sir Your Mo Ob & Very Humble Servant