seems nothing left to excuse the nature of the voyage to Algiers. It is clothed with something of the livery of an embassy itself. Instead of secrecy and silence, eclut rather marks its movements. A despatch was obtained from the Spanish government, bearing indications (too plain to be misunderstood) that it was possessed of the real ground upon which Mr. Noah stood. Another official paper is sought at the hands of the British ambassador, as a further passport to Mr. Keene; and all this known to Mr. Noah. What will every well-judging mind say to such facts? Undoubtedly that they tended to make known the very authority that ought to have been hidden. The despatch from the Spanish regency might also be construed as indicative of a favor supposed to be accorded to the United States. Now, taking this to be one of the meanings of which it is susceptible, it is possible that it might not have been within the intentions of our own government, in relation to such an enterprise, to invite a favor. Moreover, the letter of Sir Henry Wellesley is asked and accepted, when America and England stood in the attitude of belligerents. Passing over animad versions that hence occur, such measures were just such as were adapted to strip off the veil which Mr. Noah should sedulously have worn. It is against all sound anticipations to suppose that they did not at once lay his genuine case bare. Secrets are prone to escape through much smaller openings. It is true, that in his note to Mr. Hackley, and in his letter of instructions to Mr. Keene, he adverts to the necessity of keeping his government out of sight. In the Spanish despatch, there is also an outward allusion to the same necessity. But these (their concealments) need not be the subject of remark, when opposed by the more intelligible and positive indications which pointed to another conclusion, by the open machinery which foreign governments and functionaries were made to interpose in advancement of the undertaking. Considering that Mr. Keene was provided with both the Spanish despatch and the letter from the English ambassador before the middle of November, and that he did not embark until February, there is no violence done to credulity in supposing that the knowledge of his true objects and authority preceded his own arrival at Algiers. This—and it is no very strained presumption-might serve in part to account for the extravagance which, in the first instance, characterized the Dey's demands. When we look to the actual state of our relations with Spain, as well as England, at that epoch, it can scarcely be going too far to conjecture that neither their policy nor their friendship could have been deeply offended at such demands. Should such reasoning be thought in anywise defective, in relation to making known the United States as at the bottom of the proceeding, another fact presents itself, of force not to be resisted. It is not to be denied that the affair was ushered in at Algiers as one to which some government had lent its instrumentality. Mr. Keene, in his letter of the 22d of May, 1814, states that, on his arrival, the public barge came alongside of their vessel, and that he was reported as charged with despatches from the Spanish government. He states, further, that he conducted the negotiation in the name of the regency. Now this appears to me to stand in like hostility to the instructions. The participation, even in a formal or mere exterior way, of any government whatever, could never have been contemplated by the Department of State. The course of reasoning that would ascribe advantages to such a plan is not easily to be sustained. It is supposed, on the contrary, that it must have been productive of obstacles; and, at all events, it is taken to be against the clearly expressed intention of the instructions, which was to place the whole interference upon a footing private and unostentatious. In answer, then, specifically, to the first question, I am of opinion that the power given to Mr. Noah might have justified the employment of an agent; but that it does not justify such an agent as he employed, and in the manner stated. 2. If such an authority was given, could it be considered as justifying Mr. Noah in the payment of the full limit of three thousand dollars, without an experiment being made to obtain the release for a less sum? This question I am disposed to answer in the affirmative. If an agent be authorized to pay a fixed sum, I do not see that he absolutely violates his authority by paying the whole at once, although a hope may have been entertained, and an intimation thrown out, that the end might probably have been accomplished for less. It may well be an objection against the discreet exercise of the authority. A mind prudent and skil ful would be slow thus to act. But I do not feel prepared to say that it would be a positive breach. Circumstances may be conceived, leading to a rational belief beforehand that the smaller sum would not be accepted, which may the more serve to excuse the ceremony of the offer. I do not say that precisely such circumstances existed in the present instance. None are perceived, unless Mr. Noah rested upon the letter of Mr. Hackley. If he yielded his own judgment to that of another, still Mr. Hackley's letter to him does not import an unequivocal opinion upon this point. If it did, he fell into an error. It is a fact too strong to escape attention under this head, that each of the six men brought off was actually obtained for a less sum than three thousand dollars. Upon the whole, however, my opinion is, that looking liberally at the peculiar words of Mr. Noah's power, it was not violated by going to the full limit, with out the trial of previous experiments. 3. The third question divides itself into two branches: 1st. As respects the two men belonging to the crew of the Edwin; 2dly. As respects the four landed from the English frigate. In regard to the two former, I think that the charge must be considered fair. Whilst the employment of Mr. Keene may not have been justified, there are acts in which Mr. Noah may nevertheless be warranted by the intrinsic virtue of his instructions. This I take to be such an act. These two men were, indeed, released through the mediation of the British vice-consul, and delivered up as British subjects. This fact appears from the letter of Mr. Keene. Other evidence is also before me from the Department of State, superinducing strong suspicions that they were not Americans. It is at least of weight to impair the effect of their own affidavits. This will be agreed, when it is stated to be a letter from the captain of the Edwin himself, in which he explicitly disclaims them as Americans. Still, they were of the crew of the Edwin. Those who composed this crew are mentioned in the instructions as captives to be released. Mr. Noah may not have thought himself at liberty to make discriminations between them, or to institute or permit inquiries as to their citizenship. For him, the language of the instructions was sufficient to close the door against other investigations. Mr. Keene here uses a similar shield in the emphatic words of his Spanish despatch. But different is the case of the four men alleged to be Louisianíans I can discover no authority for allowing the charge on their account. There is not a trace of evidence, beyond their oaths, that they were citizens of the United States. To sware in this way, they had the strongest temptations of personal safety, if we take Mr. Keene's representation (and there is no other) upon the subject; for, although he states that they were not held in slavery, he adds, that there was every reason to suppose they would be. Aside from this powerful objection on the score of interest, all rational presumptions contradict their assertions. It is, to the last degree, probable that they were Frenchmen. They had, by their own accounts, not been in the United States for eight years. They were put on board of a French frigate in 1806, by orders from the French government. The smattering which they had of the English tongue may well enough have grown up during their subsequent imprisonment on board of English vessels. In their own affidavits, they do not go the length of saying that they were put on shore from the British frigate as Americans. If, according to their own oaths, they were even all born in New Orleans, it must have been before that place became one of the cities of the United States. They may then, nevertheless, from choice or accident, have remained French subjects. But, to waive such a suggestion, the fact of their being genuine American citizens was alike unsupported by plausibility and by proof. How it should have gained credit in the mind of a person about to perform an important trust upon the faith of it, seems strange. Mr. Noah, in his own letter to the Secretary of State, of May 31, 1814, seems to give in to the captain of the British frigate, having been induced to land them, from finding them "unwilling to work," and being in other respects useless. In the light of troublesome and expensive incumbrances, it is also as probable that the British vice-consul handed them over so promptly to Mr. Keene. It is difficult to banish the suspicion of a design at imposition, when men under such circumstances were received and ransomed as citizens of the United States; and though Mr. Noah may not be implicated, it can never, I think, meet the sanction of government. I am very clearly of opinion that no part of the charge for them should be allowed. It is enough that the public money has been expended upon the doubtful citizenship of Turner and Clark. 4. Upon the fourth and last question, although coupling itself with the general case, I have felt more hesitation than upon any of the points preceding. The conclusion to which I have come is, that the pledge to Mr. Butler to pay the bills cannot, under all the circumstances, operate to the benefit of Mr. Lewis. The refusal by the department to accept them, in the first instance, was, as I suppose, completely justified. The subsequent acceptance was not from seeing the instructions, or the conduct under them, in any different or more advantageous lights, but for reasons extrinsic and new. It was from the provident and paramount motive of keeping the credit of the nation in the Mediterranean firm. Before payment, this object was met, by Mr. Noah, who had agreed to appropriate, in discharge of the bills, certain funds lodged in his hands. This removed the only ground which had impelled the United States to make the assumption. The motive being at an end, the assumption becomes so too. It was not made to Mr. Lewis, but to Mr. Butler. Between the United States and Mr. Lewis there was no privity. That the assumption passed to him, on the mere footing of his money having been unwarrantably used, I do not feel prepared to say. It had been deposited with Mr. Noah, as the prize agent of Mr. Lewis. This appears from the official letter of Commodore Decatur to the Secretary of the Navy, dated July 31, 1815, from the bay of Tunis. It is true that, by an act of Congress, our consuls on the Barbary coast are not to engage in trade with those States. But I do not say that the restriction operated to prevent Mr. Noah's acceptance of the prize agency. He did accept it, being at the same time consul; and, in the former capacity, received Mr. Lewis's funds. He paid them away without authority and of his responsibility; I presume that there can be no doubt. This, then, is the true legal remedy open to Mr. Lewis. But Mr. Lewis stands in the attitude of an individual to whom an injury has been done. If, therefore, his recourse to Mr. Noah should not prove efficacious, and the United States, in consideration of his money having been applied to meet a public object, which they themselves were about to meet, should think fit to recognise a creditor so meritorious, it may be done through the medium of Congress. I feel unwilling to give an opinion under which his reimbursement might take place by any power short of this, To the SECRETARY OF STATE, RICHARD RUSH, |