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having found a flag of truce flying on board the Sea-horse, he made the signal to have it hauled down, before having had any conversation with Captain Foote.* That opinion begins thus:

"The armistice, I take for granted, is, that if the French and rebels are not relieved by their friends in twenty-one days," &c.-Vol. iii., p. 384.

by the very essence of the office, of the most ample, or rather of an unlimited description. Foote, partly led by political and military considerations, and partly by his humane and truly liberal feelings, coincided with the Cardinal's views:

"At the moment of these capitulations, the French fleet, and not the Engl sh, was expected in the Bay of Naples! To secure these castles was of importance. To conciliate contending minds was the duty of all men, when excesses the most sanguinary were in constant perpetration: so far I was friendly to the Cardinal's measures.' ""*

Now, if Lord Nelson had waited for positive information, instead of taking for granted what he wished, in order to shed blood, he would have found, what he did not wish either to find or to respect, a caWhen, therefore, Foote learnt that Nelpitulation, not an armistice, solemnly sign-son's squadron had sailed on the 16th of ed, and, so far as possible, actually execu- June in search of the French, he wrote to ted. Cardinal Ruffo intended to re-establish the king on his throne; but he wrote of that month, in which he says that having Nelson himself a letter, begun on the 18th to the governor of Procida,been informed of the change of destination of Lord Nelson's squadron, (which, as we have said, was coming to Naples with the Crown Prince on board, but was obliged to put back to Sicily,) he had

According to my opinion, we must not drive the principal Jacobins of Naples to despair, but must rather leave them the means of escape."t

"sent Captain Oswald to the Cardinal to represent the absolute necessity of getting pcssession of the castles, even by granting favor

His leaning towards mild measures in preference to harsh ones to restore the kingly authority, was well known to Nel-able terms." son and Hamilton; for the latter in a letter to the former, dated June 20th, says,

"Your Lordship observes, that what we suspected of the Cardinal has proved true; and dare say when the capitulation of Naples comes to this court, their Sicilian Majesties' dignity will be mortified."

Yet with this foreknowledge "their Sicilian Majesties" did not revoke the powers of vicar-general granted to Ruffo,-powers,

In this he had been forestalled by the Cardinal, who on the previous day (June 17th) wrote to him that he thought that all was going on well, that the castles would surrender, but as they objected to surrender to a priest, he added,—

and I believe they (the rebels) will yield at "Let your Excellency's flags be displayed, the sight of them. Send your orders on shore that hostilities may cease as the treaty commences. The conditions are simple and them, if in the original from which he copied, as plain enough. It is granted to the French to well as the words at the end, "Read, and ex-be carried back by sea to France, with their plained, and rejected by the Cardinal," also add-effects and property, at his Majesty's expense; ed in Lord Nelson's hand. One would likewise and those who are not French are allowed the be glad to see the letter in which the copy of the liberty of following them."§ "Observations" was enclosed when sent to Eng

land.

* Vindication, p. 71.

+ CLARKE and M'ARTHUR, ii. 257, who call this conduct of the Cardinal "highly disgraceful to his sacred character." No nation or country has produced, within this century, so ignorant or so dishonest historians as these two.

There was a good deal of negotiation be-
tween the agent of the king of Naples,
Micheroux, and the commander of the
See also p. 83, et seq.

*Vindication, p. 82
Vindication, p. 136.

The real objection was, that they did not think he had the power of restraining his molley followers from breaking any capitulation that he might have granted.

§ Vindication, p. 178.

Probably a fragment of the same letter of which part has been already quoted. Clarke and M'Arthur, p. 263 from whom this fragment is taken, say that Nelson was then (on the 20th of June) on the point of sailing from Palermo! But if we were to point out all the instances of shame- To show Clarke's ignorance, it is only neces ful carelessness, and wilful disregard of truthsary to say, that had it not been for Foote undewith which their work abounds, we should write ceiving him, he was going to attack Micheroux a volume. as the republican negotiator.

Russian forces, on the side of the allies, | Bay of Naples, and ordered the truce to be and the officers and agents of the republi-put an end to, without any notification cans, on the other. Foote grew impatient, whatever to the enemy. Afterwards Foote and remonstrated against the delay. Last- says,—

ly, on the 20th, the terms on which the capitulation of the castles Nuovo and dell' Uo- "The garrisons of [Castel dell'] Uovo and vo was to be granted were settled and sign-Nuovo were taken out of those castles under ed by Foote, and early on the 23d of June the pretence of putting the capitulation I had he put his name to a formally drawn up nulled the treaty, must appear truly singular), signed into execution (which, after having andocument, which had been previously sign-and some of those unfortunate people were ed by Ruffo, as vicar-general of the king-treated with very great severity."* dom, and then by the Russian and Turkish commanders, in which the following articles occurred :

Art.

This horrible fact is again affirmed by the same officer :

execution of the terms agreed upon, it [the "Although nothing had been done in the capitulation] was equally binding on all the contracting parties; the truth, however, is, that some parts of the agreement had been performed, and actual advantage was afterwards taken of those parts of the capitulation that had been executed, to seize the unhappy men who were thus deceived by the sacred pledge of a capitulation into a surrender of the most critical moments of his existence."t every thing that can affect a human being in

"Art. 4. Persons and property, both movable and immovable, of every individual of the two garrisons, shall be respected and guaranteed. Art. 5. All the said individuals shall have their choice of embarking on board of cartels which shall be furnished them to go to Toulon, or of remaining at Naples, without being molested either in their persons or families. Art. 6. The conditions contained in the present capitulation, are common to every person of both sexes now in the forts. 7. The same conditions shall take place with respect to the prisoners which the troops of his Majesty, the King of the two Sicilies, and those of his allies, may have made of the reIt is in defence of this act of perfidy, to publican troops in the different engagements the atrocious consequences of which we which took place before the blockade of the shall presently call the reader's attention, forts. Art. 8. Messieurs the Archbishop of that the editor of Lord Nelson's Dispatches Salerno, of Micheroux, of Dillon, and the Bish-raises his voice! He admits the capitulaop of Avellino detained in the forts, shall be tion, but, as we have seen, seems inclined put in the hands of the commandant of the to draw some inference in favor of the man Fort St. Elmo, where they shall remain as who broke it, from its not having begun to hostages until the arrival of the individuals sent to Toulon be ascertained. Art. 9. All be executed. We have also seen that he the other hostages, or state prisoners, confined is wrong in fact, and that, if even he were in the two forts, shall be set at liberty immedi- right, no consequence could be drawn from ately after the present capitulation is signed."* it in favor of Nelson's conduct. Nelson himself once said of a capitulation signed, but not yet executed,-" The capitulation once signed, there was no room for dispute."-(iii. 433.)* No one has ever pub

The confidence in the honor of England was such, that the republicans expressly stipulated to be escorted to Toulon by a British man-of-war, to which service the Bull-dog was destined. The cartels were getting ready, the hostages had been sent to St. Elmo, the other state prisoners were set at liberty, the English prisoners of war were given up, a flag of truce was flying, pending the execution of the capitulation, sigued thirty-six hours before, which, as far as possible, had been carried into effect, when Lord Nelson arrived in the

* From FOOTE's Vindication, p. 197. Vindication, p. 141.

tion of a capitulation in any degree justify the least infringement of its most triffing article?"himself admitted before, that "the important (Vindication, p. 77.) The editor, however, had fact' was no fact at all; for he had said :-" Although the capitulation was signed by Captain Foote, the last of the contracting parties, early in the morning of the 23d, little, if any thing, had fore Lord Nelson's arrival," (p. 489.) A little been done towards carrying it into execution bewas done, probably! How much ought to have been? Foote says, it was "a formal capitulation, signed, and in part executed, before Lord Nelson arrived in the Bay of Naples."Vindication, p. 86.

* Vindication, p. 39.
Vindication, p. 48.

The editor of the Dispatches repeatedly relies on what he calls "the important fact," that the capitulation was not even begun to be carried into effect before the arrival of Nelson, (pp. 495 and This capitulation had been signed by Girar511;) but, as Foote asks, "Does the non-execu-don, who commanded at Capua, both for Capua

licly asserted that Foote acted against his | Ruffo," (the italics are Clarke's,) and instructions, and it is only in England, and lastly in the Life, as quoted above. Supamong Englishmen, that it has been pre-posing the letter to exist, one cannot undertended that Ruffo acted against his Sove-stand how "private" letters to a superior reign's intentions and orders in treating. military authority can nullify public acts It has even been said that "a private let-and solemn engagements. Moreover, "the ter from the King to Ruffo amply supports King of Naples' secret orders † to Ruffo this assertion."—(Clarke and M'Arthur, have nothing to do with a capitulation ii. 256.) This letter of the King of Naples sanctioned by a British officer, and to which is mentioned for the first time in one of the national faith was unquestionably Clarke's to Captain Foote, after this gal-pledged." That the King of Naples dislant and truly honorable man had, on the avowed Ruffo is too true, but he did so 18th of March, 1809, written to Clarke :- when on board the Foudroyant, under the complete power (we are ashamed to state "I beg to be excused for controverting what-the fact, but it is undeniable) of Nelson, ever may insinuate that I was imposed upon the Hamiltons, and Acton, all English peoby any thing said or done by Cardinal Ruffo

-

in the transactions of the Bay of Naples, in the ple. It was by their advice and influence summer of the year 1799. I could not be im-only that all the severe measures were posed upon, because my instructions directed taken; of this there is ample evidence in me to co-operate with the Cardinal, who was the several biographies of Nelson, and in retained in the most important situation, from his letters; it was on board the Foudroywhich he could have been removed in forty-ant, and surrounded by Englishmen, that eight hours. Nothing can be more the King of Naples passed the most atroevident than the fact that a solemn capitulacious edicts that perhaps ever disgraced tion had been agreed upon, formally signed by the Commander of the Forces of the King a statute-book. Even the personal eneof Naples, by the Russian commander and mies of Ferdinand considered him as the by myself, all duly authorized to sign any ca- prisoner of Nelson; and to the English pitulation in the absence of superior powers." admiral was not unjustly ascribed the cruelty of the king.¶ With respect to the dis

*FOOTE's Vindication, pp. 49 and 56. flow can it be true that a private letter in the King's own hand to Ruffo was among the Nelson papers? If true, it must be equally true that Ruffo never received it. Of the unscrupulousness of Clarke and M'Arthur in forging letters, see a proof in the Nelson Dispatches, ii. 406. in possession of the King's secret orders to "Nelson acted as he thought right from being Ruff."-CLARKE. Vindication, p. 57.

In answer, Clarke, ten days after, hav-avowal of Ruffo, circumstances tend uning, as he says, "really been almost laid on his beam-ends" by that letter, speaks of papers in general that have come out, which support Nelson, and adds:-"There is a letter from the King to Ruffo, in which his Majesty upbraids him for daring to treat with rebels, directly contrary to his orders." Neither the letter itself, nor any part of it, nor the date, nor the place from which it was written, have ever been given. It is then mentioned again twenty days later by the same Clarke, as "the King of Sicily's private letter, in his own hand, to

Vindication, p. 60.

§ "The King on his arrival [in the Bay of Naples] publicly disavowed any authority having rebellion."--Clarke and M'Arthur, ii. 275. been delegated to Ruffo to treat with subjects in

The reader may find their substance in Colletta, lib. v., cap. 1, § 2. They are also in Cuoco's Saggio, § 49, who records the almost incredible fact, that although hundreds of people were condemned, even to death, in consequence of these edicts, they were, however, not published.

and Gaeta. The commander of Gaeta, Berger, very naturally refused to abide by an agreement to which he had not been a party, for which Lord Nelson, with his peculiar politeness, called him, in a letter to Captain Louis, " scoundrel."-(iii. p. 431 and 433.) This Sir Harris Nicolas applied to Girardon, supposing him commander of Gaeta. Saggio Storico, § xlix. Nelson himself acCaptain Louis, to whom af erwards Gaeta sur-knowledged that long before, when the King was rendered, had the generosity to render justice to at Palermo-therefore not so completely in bis Berger; in writing to Nelson he said "I assure power as on board the Foudrayant-there was you that the Frenchman I have been dealing nothing which he proposed that was not impli with, has acted more unlike one than any I ever citly complied with, (ii. 325) In his letter to met."-CLARKE and M'ARTHUR, ii. 299. Davison, when complaining of Mr. Fox's speech *Ruff, as Vicario-Generale, was a great deal respecting the breach of the capitulation, he more. The Vicario-Generale is invested with made the following admission: "the whole afthe fullest royal power, ut alter ego, as it is tech-fairs of the kingdom of Naples were, at the time nically expressed by the sovereign, on appointing alluded to, absolutely placed in my hands," (iii. to such an exalted office. 510.)

happily to confirm the suspicion, that this when he could; and, as Hamilton wrote was only owing to Nelson's influence, he to him, he was under no kind of engagebeing too interested in destroying the Car- ment. The king, when full of gratitude dinal's credit. It was at this time, when and pouring rewards on him, expressed on board Nelson's ship that the King of himself as follows:Naples announced his intention of creating the Admiral Duke of Bronte ;* but, on returning to Sicily, that same king not only continued Ruffo in his high situation, but rewarded him with a salary of 24,000 du. cats, (more than £3000 sterling,) and as much again in yearly revenue from lands which he bestowed on him,t besides letters

of thanks and rewards to a brother of his.

Ruffo continued in his office till he went

to the Conclave at Venice for the election

"Your powerful co-operation having rendered the forces of my faithful soldiers efficacious, as well as that of my allies who are united with them,"-(iii. 433.)

no

His instructions were to co-operate with M'Arthur, ii. 168); and, on the 27th of the allies, and more (Clarke and of his co-operation with the Sicilian army July, 1799, the Admiralty repeatedly speak

of a successor to Pius VI. Now, all this(i. 410). If the king of Naples had proves that, when left to himself, the king he had intrusted him with the supreme appointed him to govern his kingdom-if was far from disavowing Ruffo, or being command over his army and his navydissatisfied with what he had done;-which could Nelson have accepted such eminent is as good an argument in favor of the Carand responsible offices without the special dinal's correct conduct, as the rewards promised to Nelson, when on board his ship he could not legally do it; for this officer, leave of his king? As to disavowing Foote,

as he himself states, was

"as fully authorized to sign such a treaty as Lord Nelson; for he was as much under Lord St. Vincent as I was under him.”*

tion " for most important services when left with the command in the Bay of Naples "t

-rewards on which the editor of the Dispatches relies in defence of his hero-(iii. 493,) are a good argument in favor of the conduct of the Admiral. Besides all this, we have seen (pp. 423, 426, and 427,) that both Nelson, and the Ministers of the King of Naples, approved of terms being granted Nelson did not do so in point of fact; on to the Republicans when the castles were the contrary, he praised Foote for what he on the point of capitulating. It is there- had done; and it afforded him "infinite fore utterly untrue that Ruffo had acted pleasure" to convey to Foote a distinguishcontrary to the King's orders in granting ed mark of his Sicilian Majesty's approbasuch terms as he had done, with the concurrence of Foote and the Allies. But, supposing Ruffo had exceeded his instructions, what right had Nelson to annul his acts? Had he a right to break the capitulation signed by Foote? Nelson had never been invested with higher powers than Ruffo's-such a thing could not be he could only have superseded him. The letter of the king-to which we have alluded (p. 421,) was not a solemn act, capable of producing such an effect, even for the special circumstance for which it was intended. So far from being sent to the Bay of Naples by the king, and with supreme power, Nelson volunteered to go there

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-one of which services was to sign the capitulation by which the king repossessed himself of the castles so often mentioned.

This would render it quite superfluous to notice all that the learned editor says "anent the law of breaking capitulations," were it not necessary to show that there is not the slightest foundation for asserting

after the French or after Lady Hamilton, whom
he took on board on the 21st of June at Palermo,
may be doubted: that he did not go by order, or
as a representative, commander, or minister of
the King of Naples, is certain.
* Vindication, p. 77.

Dispatches, iv. 17. In a private letter to Alexander Stephens, dated February 10, 1803, *Clarke and M'Arthur, (ii. 314.) Nelson did not scruple to say what he knew was Colletta, lib. v. cap. 1, § 8. not true, and what he never dared say to Foote, This is proved from the documents quoted, or in any official document, that that officer had p. 425, and from the letter of Nelson to Keith of no power to enter into any treaty. He had the 27th June, in which, after having related what power, by the very fact of being at the head of he had done since the 16th, to find the French the English forces, as far as the binding of Engfleet, he proceeds" I determined to offer my-land went. Stephens did not believe Nelson, as self for the service of Naples, where I knew the is evident from his history, in which he omits French fleet intended going.' Whether he went altogether to speak of Caracciolo's murder.

*

that such villainies are sanctioned by the terms? Who has ever heard of powers law of nations. Before considering the being required? To deceive an enemy, it point of law, it is to be borne in mind, that would only be necessary to find an unscruthough Nelson, of his own accord, and pulous agent, ad hoc, give him all the apwithout any assigned ground, broke the pearance of command and power, denying capitulation, yet with his own officers, or to him the substance; or send an honorable with Ruffo, he never pretended to have the man to conclude a capitulation, and then right to do so. From first to last, when he find a Nelson ready to break it, and there knew the truth as well as we know it, he would be no more safe agreement between having among his own papers the capitula-military authorities. An agreement would tion itself, Nelson carefully and shamefully only be a decoy, a delusion, and a snare; avoided to use the name "capitulation," to and a military capitulation for the surrender make the world believe there was no such of a fortress, (as well as a military agreething. He first of all called it an armis- ment for any other purpose) would be an tice, then a treaty, but never a capitula- impossibility. No author ever defended tion; nor did he ever venture to say that he principles so monstrously immoral. What broke it as such, and in virtue of his pow- the authors quoted by the learned editor ers. If he had done so, he would have say, is, that an officer must not exceed the been obliged to say that Foote had acted powers or attributions of his office. Thus, out of the limits of his charge, and promis-if a general, in taking possession of a fored terms which he was not warranted to promise by his commission; and this he well knew he could not say. Nelson never having pretended to set aside, in a formal and solemn manner, a formal and solemn military capitulation, it is superfluous to discuss whether, had he been a commanderin-chief, he had the power of doing so? If the whole of the writers on public law were to affirm so monstrous a proposition, we should not mind: no authority can legalize a villainy. A general besieges a fortress, he considers it important to possess himself of it before it is relieved; and with this view he solemnly offers the best terms he can, which are solemnly accepted. Thirtysix hours after, when no relief is any longer to be apprehended, a superior officer comes and puts aside the capitulation, on the plea that he who signed it had no powers. Who has ever dreampt of asking the commander of a siege to show his powers of granting

tress, were to agree that it shall be restored at the general peace, or that the sovereign shall never enter its walls without the consent of the enemy who evacuates it, then he would exceed the attributions of his office, and his promise be void; but the other party could not complain of the non-observance of terms, which the party who agreed to them had manifestly no power to stipulate, being out of the sphere of his attributions.*

The two instances referred to by Sir H. Nicolas, of capitulations set aside, are of no weight, because no number of perfidies can authorize one, and because the cases are totally different. Rapp agreed on the 29th of Nov. 1813, to give up Dantzic on the 1st of Jan. 1814, the garrison to be prisoners of war, and taken to France under promise of not serving till exchanged. On the 23d of Dec. 1813, at 11 o'clock of the evening, the Duke of Wurtemberg, a general in the Russian service, who commanded the siege and had agreed to the capitu* All capitulations are, in one sense, treaties, as they cannot be drawn up and be agreed upon lation, informed Rapp that the Emperor except after treating or negotiating; but all treaties Alexander would not consent that the garare not capitulations. A treaty of commerce orrison should be allowed to return to France of peace requires special powers to be negotiated, and a ratification previous to its being perfect and binding; and of course the proper supreme power may disavow a negotiator of such an act; but a military capitulation is an act which requires no special powers, the commission which an officer holds being a proof of his having such powers; nor does it want ratification. Nelson, with great cunning, tried to make a military capitulation pass for a civil and political treaty, by never calling it by its proper and technical name. He did more: when he found that agreement designated as a capitulation, he alleged that it was no capituJation, because, he having broken it, had prevented its execution!

on parole. All the other parts of the capitulation were held sacred. The reason that determined Alexander, was the knowledge that the parole had been broken in former cases, and might be broken in this. The determination of the Emperor was communicated most solemnly, and in the most gentlemanlike terms to Rapp, who having still possession of the place, was free to determine what he pleased. The Duke of * Vattel, liv. iii. ch. 16, § 261-263.

"Le Duc de Wurtemberg m'offrait de remot.

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