TO M. DE SARTINE.
Passy, 17th September, 1778.
Sir,
We have this morning the honor of receiving your Excellency's letter of the 16th, relative to the French brigantine, the Isabella, retaken by the American privateer, the General Mifflin, from a Guernsey privateer, after having been eight hours in his hands.
We have the honor 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 French ships of war, or privateers, should have the same advantage in case of prizes and recaptures, that the American 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. But we are informed by Captain M'Neil, that by the law of Massachusetts Bay, if a vessel is taken within twentyfour hours, one third goes to the recaptors; after twentyfour hours until seventytwo hours, one half; after seventytwo hours and before ninetysix hours, three quarters; and after ninety six hours, the whole.
All that we have power to do in this case is, to convey to Congress a copy of your Excellency's letter, and of our answer, and we have no doubt but Congress will readily recommend to the several States to make laws, giving to French privateers either the same advantages that their own privateers have in such cases, in their own ports, or the same advantages that the French privateers enjoy 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 agreeable to his Majesty. If the case of this vessel must come before the public tribunal, upon the simple question, whether she was taken 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 expense.
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 motives of 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 laws 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, against American vessels at least. But admitting, for argument's sake, that he had no commission at all, the question arises, whether the two nations of France and England are at war or not. And, although 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 recall of their Ambassadors, if not from the moment of the British King's 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 subject of any nation to be guilty of piracy for an act of hostility, committed at sea against the subject of another nation at war. Such a principle, for what we see, would 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 hostilities against human kind, at least against a nation not at war.
Commissions are but one species of evidence that nations are at war. But there are many other ways of proving the same thing.
Subjects and citizens, it is true, are forbidden by most civilized nations to arm vessels for cruising against their enemies, 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 enemies by subjects or citizens, without commission from their sovereigns, may belong to the sovereigns, not to the captors, 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 enemy without a commission.
We beg your Excellency's pardon for detaining you so long from objects of more importance, and have the honor to be, &c.
B. FRANKLIN,
ARTHUR LEE,
JOHN ADAMS.