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· All the dispatches were regular, and imperial passport, bills of lading and manifest of the cargo, captain and major part of the crew were imperialists, and the remainder neutral subjects. In short, all the papers on board tended to prove the property belonging to the colonists, and to neutral representatives, and were verified before the respective ma. gistrates and consuls.
This vessel having sailed on the route of her destination, was met by a frigate carrying an English flag, who ordered her to salute, and examined her papers. The commander of the frigate on seeing the nature of these papers, proposed to the captain of the vessel to sign an acknowlegement proving that his cargo had been taken on board in London, and his papers and provisions at Ostend.
Peter Thompson, (the name of the captain of the brig) believing himself in the hands of an English privateer, consented to sign this declaration (without knowing however what he signed,) which in this case would not possibly be prejudicial to him, but the captain of the privateer with an intention of abusing the ignorance and innocence of the said
Thompson, had written this declaration in a language which he could neither read nor comprehend, and in quite other terms than what had been read to him, and which implied that he had been loaded in London, and that his merchandize belonged to the English, and that he only came to Ostend to exchange papers, and avoid falling into the hands of the English rebels; which is totally contrary to his bill of lading, and was not at all in his power to do, as the cargo was not under his direction nor ever had been. · Possessed of this writing, the captain of the frigate hoisted the American flag, and proved himself to be the Hope privateer from Boston, and accordingly informed captain Thompson that he arrested him, and after taking out eleven men from the brig, he substituted several others of his own people, who, after having torn to pieces, pillaged, and carried off, all the papers from on board, &c. carried her into Philadelphia, and afterwards to Boston, where the crew are detained and treated with inhumanity.
This prize is irregular, unjust, and contrary to the rights of nations, and Sieurs Liebaert, Baes, Derdeyn and Co. have reason that the conduct of the said captain Darby will be disapproved by congress, and the ship and cargo restored with damages and interest.
It is certain, and the papers on board, which Darby is obliged to shew, will prove that this vessel is not English property, but it actually belongs to the Sieurs Liebaert, Baes, Derdeyn and Co. agreeable to the contract of the property, and his imperial and royal majesty's sea letters, that she actually sailed under the protection of this august monarch; that her cargo composed of innocent merchandize, that is to say, not contraband in war, the commerce of which is permitted to neutral powers, even with the belligerent parties, was for account and risk of the said capitulants of Dominica, and the Sieurs Liebaert, Baes, Derdeyn and Co. these facts being proved, it will follow that the Hope privateer, had no right to stop the brig, and that by so do. ing, she contravened the laws adopted by all the powers who have subscribed the covenant of the armed neutrality, laws which the congress of the United States of America, have enjoined their cruizers to observe. ..
The means which Darby used to legitimate his pretended prize, is a direct act of piracy, which congress cannot pun. nish with too great severity, and it will be easy for them to do it. All the crew of the brig who are detained at Boston, will depose to the facts alledged by the Sieurs Liebaert, Baes, Derdeyn and Co, as follows. 1st. That when Darby stopt them, and visited and interrogated them, his vessel was under English colors.--2d. That the captain of the priva. teer availed himself of his superiority over Thompson, and the condition he was in, to oblige him to subscribe the paper in question; the force and tenor of which, he was certainly ignorant of.
The stopping of the brig under English colors, was on the part of Darby, an infringement of the regulations which require that every captain, who in the time of war would visit a ship, should summon her only under his proper dag,
whoever does otherwise acts as a pirate ; and should the vessel prove a neutral one, he exposes himself to the pay. ment of damages and interest, which he is liable for him. self, together with his owner without subjecting the crew.
This point of the rights of nations, is positively determined and received by all the states of Europe ; who either by their arms or by their neutrality favorthe independence of America ; and on this position, it is not possible to presume that congress permits as subjects, to derogate this principle.
The falsity and consequently the inutility of the declaration forced or extorted from captain Thompson, is now clearly proved, independent of the proofs which can be furnished by the crew and the ship's papers. These papers demonstrate the property to belong to the aforesaid capitulants, and Sieurs Liebaert, Baes, Dardeyn and Co. both as to the vessel and cargo. They do not pretend to say that the vessel was not bought in London, as is evident from the bill of sale found on board, nor that part of the cargo was also purchased there, which this very vessel brought over to Ostend, where she took in the remainder of the cargo. This circumstance no ways injures the truly neutral property of the capitulants, and aforesaid shippers Leibaert, Baes, Derdeyn and Co. because the neutrality of their augustsovereign, authorises them to negociate with every freedom with the belligerent powers, in lawful and unprohibited merchandize as was on board the brig. It therefore follows, that it is a matter of indifference, whether the merchandize and vessel were purchased in London or not, as this commerce is free to every neutral power, and does not contradict the ship's papers, which captain Thompson had no power to renounce, being constrained or deceived into such a measure either through subtilty or force. In this contrariety of circumstances where are we to rest? by what certain title is the rights of the parties to be judged? certainly by the ship's papers, which have a legal and authentic character, and not by a declaration demonstrated false, by every circumstance in this affair, and made at a time when captain Thompson had not his liberty, and wat
obliged to submit to whatever captain Darby demanded of him, to avoid greater evils. .. A declaration of this kind, contrary to the maxims and laws established among all nations, and opposed to the ship's papers deserves no attention, and ought to be proscribed as the effect of constraint and fraud, employed by the captain of the privateer with arms in his hands. · These points are decisive and it is impossible that the admiralty of Boston should not attend to them, and refuse to restore to captain Thompson the vessel and cargo with damages and interests proportioned to the loss which Darby has caused by an act of hostility alike contrary to the rights of nations, and to the respect due by the Americans to the subjects of his imperial and royal majesty. However as the Sieurs Leibeart and Co. are informed that the crew of the brig has been plundered and very ill treated in the United States, that the first lieutenant has been detained at Philadelphia, under pretext of security for the expenses of lodging the crew in that city, but for the purpose of separating him from the crew, and prevent his giving any information at Boston, concerning the irregularity of the prize, who is more ca. pable of doing it than any other person. That captain Thompson and his people having no money, and still less credit, will with difficulty find the proper persons who will undertake to prosecute their affairs; and there is reason to apprehend that for want of assistance in this particular, they must give up the point, which will be a very great misfortune to themselves, and would cause an irreparable damage to the Sieurs Liebaert, Baes, Derdeyn and Co. they have therefore been advised to request the aid and protection of his excellency the count de Mercy, his imperial and royal majesty's minister to his most christian majesty, and to intreat him to obtain his excellency Mr. Franklin, minister from the United States of America at the court of France, to write to Boston, and to recommend captain Thompson and his claim to the judges of the admiralty of that port, to grant favorable treatment to their persons, and a just and prompt decision to their demand.
To the count de Vergennes.
Passy, January 18, 1782.
I RECEIVED the letter your excellency did me the honor of writing to me this day, enclosing a memorial which relates to the interests of some subjects of the emperor, residing at Ostend, who allege that a ship of theirs has been taken by an American privateer, and carried into Boston, on pretence that the property was English, &c. I shall immediately transmit the memorial to congress, as de. sired. But there being courts of admiralty established in each of the United States, I conceive that the regular steps to be taken by the complainants, would be an application for justice to those courts by some person on the spot, duly authorized by them as their agents, and in case the judgment of the court is not satisfactory, that then they appeal to the congress, which cannot well take cognisance of such matters in the first instance. The merchants of Ostend may possibly not have as yet correspondents established in all the states, but any merchant of credit in the country would transact such business on receiving their request with the proper power of attorney, or if his imperial ma. jesty should think fit to appoint a consul general to reside in those states, such an officer might at all times assit his compatriots with his counsels and protection in any affairs that they might have in that country. I am the more particular in mentioning this to your excellency, because I apprehend these cases may hereafter be frequent, and if the complaints are to be addressed to you and to me, we are likely to have a great deal of trouble, as I am informed that it is become a daily practice for outward bound English ships to put into Ostend, make a formal pretended sail of ship and cargo to a merchant of the place, who furnishes imperial papers for the voyage under his own name, and receives a certain sum per cent. for the operation. This is said to be a branch of great profit to the Flemish merchants, and that a very great number of English ships are now at sea with such papers, and I suspect even from their own manner of stating