By trading from those ports with the adjoining ports of France, conformably to the laws of France and of the country whence they trade, no law is violated; the commerce is strictly regular, and neither the practice nor intention of smuggling can be charged upon them. But if, by the connivance or corruption of subaltern officers of the bordering nation, an entry of form into one of those ports, for a vessel eighty miles distant from it, never intending to enter it, and for the express purpose of unlawful trade with France, should be made; if the pretence of a port of trade should be set up in a desert, close upon the boundary of France, and for the avowed purpose of illicit trade with France; and if all this should be done in the face of the French authorities, on a river half belonging to herself, with a desert shore and no existing authority on the other; then indeed would the cases be parallel, and then, should the government of France give to the Captain of such an American vessel the choice to depart from the waters of the river, or to enter the port of France, and submit to the operation of its laws, the government of the United States would assuredly neither take it as an indignity offered to them, nor exact from France an acknowledgment of error for it, as a condition to precede the adjustment of other interests between the two nations.

The President yet thinks that the seizure of the Apollon was justifiable both by the laws of nations and by the statute of the United States above cited.1 The American government has no motive for bearing hard upon the honor or reputation of Captain Edou, and heartily concurs in the sentiment of the Baron de Neuville, that the honor of the humblest individual is an object of interest to his country. But the object of Captain Edou, by his own declaration, was

1 The following was inserted: “and that he should have failed in the duty imposed on him by the law, if he had not given that interpretation of it."

to trade with the United States, and yet evade the operation of their laws. [His means were a false entry of a ship at St. Augustine, and a location of her at a spurious port of St. Joseph, which he knew had no existence. Whether this was taking his stand upon the limits of the law or not, need not further be enquired; but if it was, assuredly that law was not the law of honor.]

1

The Baron de Neuville enquires "on what principle a French vessel should be denied in America the privileges enjoyed by American vessels in Europe" and observes, if it is possible to carry on smuggling between Florida and the United States, may it not equally be done at Nice, Passages, etc., etc., and in all other ports situated near a frontier. [The substance of this argument is that because Americans may smuggle from Nice and Passages into France, therefore Captain Edou had a right to smuggle from Florida into the United States. Although it is difficult to understand the note in the Baron's letter of 4 April in any other sense, yet the Secretary of State cannot believe this was its meaning. Surely] the Baron de Neuville [can discern] 2 the difference between vessels going in lawful trade to acknowledged open ports, and thence in fair undisguised traffic with other ports in the neighborhood, escaping from the aggravated duties of a direct commerce, and vessels making a [false] entry in a port eighty miles distant from the ship, vessels resorting to [an imposture of] 3 a port in a desert for the express and avowed purpose of traffic with another country in defiance of its laws. [As well might the entry into a neighbor's house at noonday to pay a friendly visit, be likened to the entry into the same dwelling of a midnight robber to plunder or to burn the house.] 3

1 Struck out.

3

3

* "Must nevertheless admit" was substituted.

3

* Struck out.

The suit of the United States against Captain Edou and his ship has, however, been discharged, and his vessel has been restored to him. This was done, not from an opinion that the seizure of the ship had been unlawfully or improperly made, but from a disposition as far as possible conciliatory towards France, and particularly to the warm interest which the Baron de Neuville had taken in the case. [It is to be regretted that the measure was not received by him in the spirit in which it was adopted.] 1

1

It is understood that an action has been commenced by Captain Edou against the collector of St. Mary's for the seizure of this ship. The legality of that act will be tried also upon that suit; and should it upon the trial prove to have been unwarranted by law, Captain Edou will recover such damages as he may be entitled to by law. All the private interests, therefore, concerned in this transaction will receive that protection which is appropriate to them.

It was remarked in a former note from this Department that the spot which Captain Edou and his advisers had selected for these transactions could scarcely be considered as a Spanish territory, since it had been nearly two years before solemnly ceded to the United States [and ought then to have been in their possession as their own. To this the Baron de Neuville replies by an argument which appears not remarkably relevant to the subject in discussion, upon the question whether a treaty has any force or value before its final ratification. It will not be necessary to controvert the opinion of the Baron de Neuville upon this subject. As he himself has produced a full power from his sovereign promising on the faith and word of a king to accept, accomplish and execute whatever he, the Baron, shall have stipulated, promised and signed in his name, it is not to be sup

1 Struck out.

posed that he intends to assert that these words are without meaning: and if they have any meaning, the assertion by this Department, contested by the Baron, is fully maintained, and the Floridas ought to have been in possession of the United States as their own, long before Captain Edou's expedition to Bell River to take his stand on the very limits of the law.

In the altercations submitted to the decision of judicial tribunals, from the imperfection of all human institutions it often happens that the determination is governed more by positive regulation than by moral principle. The law is not always the same as the justice or equity of the case. But in the transactions of nations, positive regulation is or ought ever to be subordinate to the principles of eternal justice. The ratification of a treaty is a formality, essential to the form of its conclusion, and therefore to its validity. But when that ratification has been solemnly promised in the face of God and man, upon the faith and word of a King, the statesman may be pitied who is reduced to the necessity of maintaining that the right of one party has been forfeited by the perfidy of the other, and that the royal promise was of no avail for the want of wax to the deed of performance.

It is with no sentiment of satisfaction that the remark obtrudes itself upon the consideration of this affair, that all the reliance of Captain Edou for his justification, and that of his complaint against the American government, are of this description all dependences upon the perversion of forms and the abuse of regulations. He makes entry of his ship at St. Augustine, without a thought of going there, but as a cover for trading with the United States, in real violation of their laws. He posts himself upon Bell River, at a spurious port of St. Joseph, for the same purpose. He pays profusely Spanish officers of the customs for aiding and

abetting him in the fraud. A Spanish agent, enjoying the protection of our laws, combines with and inspirits him to the deed, with the avowed purpose of frustrating the laws of the Union, and prolonging our differences with France; and because the authorities of the United States cross an imaginary line in the middle of a river, and dislodging him from his lurking place, compel him to depart, we are to be told of violations of territory, and insults to flags; that the dignity of the crown of France is interested in the mercantile speculations of Captain Edou; and that no adjustment of commercial interests highly important to both nations is to be expected, unless the American government shall acknowledge a grave error to have been committed, though it never was committed, by a clerk in the Treasury Department and the collector of the port of St. Mary's.] 1

The American government is in this case conscious of no error to acknowledge in itself, and knows that none has been committed by the subordinate officers 2 [denounced by the Baron de Neuville. It has felt the demand of such an acknowledgment as a proposal which nothing but an anxious desire of conciliation with France could justify it in meeting otherwise than by direct, positive, and instantaneous refusal. It had hoped that having been originally made as confidential, it would have been upon deliberate reflection withdrawn. I am directed by the President of the United States to inform you, that after this frank explanation all further discussion between us of that proposal must cease, and that this answer concerning it is definitive.

Upon any other subject of interest to the two nations, or to your mission, and particularly upon that relating to the commerce between them, I shall be happy to receive

1 Struck out.

* "under it," inserted.