"Let us consider, first, what is the extent of the jurisdiction which the Consulates of France may rightfully exercise here. Every nation has, of natural right, entirely and exclusively, all the jurisdiction which may be rightfully exercised in the territory it occupies. If it cedes any portion of that jurisdiction to judges appointed by another nation, the limits of their power must depend upon the instrument of cession. The United States and France have, by their Consular Convention, given mutually, to their Consuls, jurisdiction in certain cases especially enumerated. But that Convention gives to neither the power of establishing complete Courts of Admiralty within the territory of the other, nor even of deciding the particular ques. tion of prize or not prize. The Consulates of France then cannot take judicial cognizance of those questions here.

“Of this opinion Mr. Genet was when he wrote his letter of May 27th, wherein he promises to correct the error of the Consul at Charleston, of whom in my letter of the 15th I had complained as arrogating to himself that jurisdiction; though in his subsequent letters he has thought proper to embark in the errors of his Consuls.

« The real question is, whether the United States have not a right to protect vessels within their waters, and on their coasts? The Grange was taken within the Delaware, between the shores of the Jerseys and of the Delaware State, and several miles above its mouth. The seizing of her was a flagrant violation of the jurisdiction of the United States. Mr. Genet, however, instead of apologizing, takes great merit, in his letters, for giving her up. The William is said to have been taken within two miles of the shores of the United States: When the Admiralty declined cognizance of the case she was delivered to the French Consul, according to my letter of June 25th, to be kept until the Executive of the United States should examine into the case, and Mr. Genet was desired, by my letter of June 29th, to have them furnished, with the evidence on behalf of the captors, as to the place of capture; yet to this day it has never been done. The brig Fanny was alleged to be taken within five miles from our shore; the Catharine within two miles and an half. It is an essential attribute of the jurisdiction of every country to preserve peace, and punish acts in breach of it, and to restore property taken by force within its limits. Were the armed vessel of any nation to cut away one of our own from the wharves of Philadelphia, and to choose to call it a prize, would this exclude us from the right of redressing the wrong? Were it the vessel of another nation, are we not equally bound to protect it while within our limits? Were it seized in any other waters or on the shores of the United States, the right of redressing it is still the same: and bumbled indeed would be our condition, were we obliged to depend for that on the will of a foreign Consul, or on any negotiation with diplomatic agents. Accordingly, this right of protection within its waters, and to a reasonable distance on its coasts, has been acknowledged by every nation, and denied to none; and if the property seized be yet within their power, it is their right and duty to redress the wrong themselves.

France herself has asserted the right in herself, and recognized it in us, in the 6th article of our treaty, where we mutually stipulate, that we will, by all the means in our power (not by negotiation, protect and defend each other's vessels and effects, in our ports or roads, or on the seas near our countries, and recover and restore the same to the right owners.

** The United Netherlands, Prussia, and Sweden, have recognized it also in treaties with us; and indeed it is a standing formula inserted in almost all the treaties of all nations, and proving the principle to be acknowledged by all nations."

In the letter of Mr. Randolph to Mr. Fauchet, already cited, that gentleman resumes this subject, and Mr. Fauchet in answer says : * The Admiralty Courts have always ceded to the entreaties of our enemies for their intervention in prize causes; in truth, frequently and almost constantly, by using the double plea of which you spoke to me, that is to say, by, arguing either of seizure within the jurisdiction line of the United States, or of armament or augmentation of armament of the capturing vessels, in their ports. On this subject, sir, you request me to specify a circumstance where a prize was arrested, which did not come under that denomination, and you take the trouble to establish, that they have a right to intervene in every case that can be brought under those heads, In the first place, sir, I never bave, at least to my recollection, contested the right of your Courts, or of the Government, to interfere in matters of the nature of those you mention.”

It would seeni to be incontestable, that the principle asserted by the United States, which indeed is an unquestionable principle, has been admitted in its utmost latitude by France. It is believed that in the execution of this principle, the Government and tribunals have only been guided by a sense of duty and the obligations of justice. If, in any case that can be selected, wrong has unintentionally been committed, that wrong has grown inevitably out of the situation of the United States, and of the conduct of persons they have been unable to control, and will with readiness be corrected.

2ily. That against the textual sense of the treaty, the Government has permitted the ships of the enemy to come to in their ports, after having captured property or vessels belonging to French citizens.

It is to be regretted that you have not been pleased to state some particular case, if the case be founded on a fact, which has manifested this permission : or if it be founded in principle, the precise difference between the construction given by the President of the United States to the article of the treaty of the 6th of February, 1778, relative to this subject, and that for which you may contend. For the want of such a guide, the undersigned may discuss unnecessary points, without giring you complete satisfaction on that which in your mind may constitute the real difficulty.

The 17th article is in these words: “It shall be lawful for the ships of war of either party and privateers freely to carry, whithersoever they please, the ships and goods taken from their eneinies, without being

obliged to pay any duty to the officers of the admiralty or other judges ; nor shall such prizes be arrested or seized when they come to or enter the ports of either party, nor shall the scarchers, or other officers of those places, search the same, or make examination concerning the lawfulness of such prizes; but they may hoist sail at any time and depart, and carry their prizes to the places expressed in their commissions, which the commanders of such ships of war shall be obliged to show : on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people, or property of either of the parties; but if such shall come in, being forced by stress of weather or the dangers of the sea, all proper means shall be vigorously used that they go out and retire from thence as soon as possible."-Do yon contend, citizen minister, that this article ought to be rigidly construed according to its letter? If you do, it becomes necessary to ascertain what are the disabilities to which its letter really subjects the vessels belonging to the enemies of France. They are, 1st. That no shelter or refuge shall be given in the ports of the United States to the ships of war or privateers belonging to the enemy, which shall have made prize of the subjects, people, or property of France. 2dly. That if such ships of war or privateers shall come in, being forced by stress of weather or the danger of the seas, all proper means shall be vigorously used that they go out and retire from thence as soon as possible.

The letter of the article does not exclude generally the ships of war belonging to the enemy, but those only which have made prize of the subjects, people, or property of France. That the vessel shall have made a prize is a part and an essential part of the description. Whe. ther the vessel be or be not within this description is a fact, the ascertainment of which must precede the measures to be taken in consequence of that fact. When the fact shall have been ascertained, the letter of the article denies refuge or shelter to the ship of war or privateer, but not to the prize which may have been made.

You well know, citizen minister, that if the letter of the article is to be set up against its spirit, when the former is most favorable to the views of France, the letter must still be adhered to, though it should counteract those views. The situation of the United States bound them to observe, between the belligerent Powers, an exact neutrality, in all cases where their previous treaties had not stipulated advantages or imposed disabilities.

They could not refuse to one belligerent Power, those rights of ordinary hospitality which were enjoyed by others, which the common usages of nations permit, and which were forbidden by no particular treaty. Such refusal would have been manifestly partial, and a plain de. parture from that neutral position in which the United States found themselves, and which good faith, integrity, and their best interests impelled them religiously to maintain.

Thus circumstanced, it was the duty of the Government to give its true construction'to a treaty granting advantages to one of the belligerent Powers, and imposing disabilities on another. In searching for

this true construction, its best judgment ought to be exercised, and the dictates of that judgment ought to be obeyed. The United States have done so. They have refused shelter in their ports to the prizes made on the French Republic, or to the ships of war belonging to the enemy and accompanying such prizes.

They have permitted ships of war, not bringing prizes with them to remain in their ports, without instituting tribunals to inquire whether such ships have at any time captured French citizens or French property. The reasoning on which this decision was founded, and which appears to the undersigned to have been conclusive, will not now be repeated. It has becn detailed in several letters from the Secretary of State of the United States to the Minister of France in Philadelphia. The undersigned will only observe that the construction supposed to be just, and for that reason actually put upon the article, is believed to be more favorable than the literal construction, to the interests of France.

Ships of war which have made prizes on this Republic, if they enter the ports of the United States without such prizes, ought indeed, under the letter of the article, to be ordered to depart as soon as the fact can have been ascertained, but the prizes themselves are permit. ted to remain in safety. By the actual construction, a ship of war entering without a prize, is permitted to remain, but all shelter is refused to a ship of war which is accompanied by a prize, and also to the prize itself. It would seldom happen that a ship of war not driven in by stress of weather, or the danger of the seas, would wish to continue in port longer than the time which would unavoidably be consumed in ascertaining the fact of her having made a prize; but it must often happen that a prize now excluded from the ports of the United States, would find shelter in them if the literal construction of the treaty should be adopted.

This exposition given by the United States to this article was made known in 1793—France bas never signified a wish that the literal construction throughout should be pursued : This strengthens the opinion entertained by the undersigned, that the rule on this subject, so early established by the American Guvernment, is considered by the Republic as more favorable to its interests, than a rule conforming entirely to the letter of the article.

sdly“ The Government of the United States has ordered the arrest of a national corvette* anchored in the port of Philadelphia, and the arrestation has been extended to the captain commandant."

The undersigned beg leave to state the case which is the foundation of this complaint. In the statement itself they trust will be found a complete justification of the conduct of the United States.

The Cassius, under the name of " les Jumeaux," was fitted and armed for a vessel of war in the port of Philadelphia, in violation of a law of the United States.' In December, 1794, having escaped from the port to descend the river, orders were given to the militia of the state of Delaware to intercept her. The attempt was made and failed. The crew of les Jumeaux, which was unex. pectedly found to be very numerous, resisted the officers who who went on board, manned their cannon, and brought them to bear on the cutter in which the militia, about forty in number, were embarked. Their force being inadequate to the enterprise, they retired with an intention to return the next day with a reinforcement. They did so; but Les Jumeaux had sailed and gone to sca. The agent, Mr. Guenet, by whom Les Jumeaux bad been fitted out, was tried at the circuit court in Philadelphia, convicted of the offence, and received sentence of fine and imprisonment. Les Jumeaux proceeded to St. Domingo; Samuel B. Davis, a citizen of the United States, there took the command of her, with a commission from the French Governme:it. Davis probably sailed from Philadelphia in Les Jumeaux, for the purpose of finally taking the command of her. Her name was now changed to « Le Cassius," and on a cruise she took a schooner called the William Lindsay, belonging to Messrs. Yard and Ketland, of Philadelphia, Mr. Ketland having purchased an interest in her after her sailing. The schooner and her cargo were condemned as prize at St. Domingo. In August, 1795, Captain Davis, commanding the Cassius, came with her to Philadelphia; she was immediately known. Mr. Yard, with a view of obtaining an indemnification for the loss of the schooner and her cargo, libelled the Cassius in the district court, and caused the captain to be arrested. Soon after, the Supreme Court being in session, captain Davis's counsel applied for and obtained a prohibition to the district court to stop its proceedings, by which the suits both against him and Le Cassius were defeated. The prohibition was granted on this principle; that the trial of prizes taken without the jurisdiction of the United States, and carried to places within the jurisdiction of France for adjudication by French vessels, and all question incidental to it belong exclusively to the French tribunals: and, consequently, that its vessels of war and their officers are not liable to process of our courts, predicated upon such capture and subsequent proceeding within the jurisdiction of the French Government. Messrs. Yard and Ketland, having failed to obtain indemnificatior, in this mode procured new process, on the information of Mr. Ketland, to be issued from the circuit court, by which Le Cassius was attached as a vessel armed and equipped as a ship of war, in the port of Philadelphia, with intent to cruise and commit hostilities against nations with whom the United States were at peace, in violation of the act of Congress prohibiting such armament. Mr. Adet complained that the process was taken out of the circuit court, because, as he alleged, it had no jurisdiction, and that it would be at. tended with delay, that court sitting but twice a year; whereas the district court, in which it was said the prosecution, if at all permitted, should have been commenced, was always open. Gentlemen of legal knowledge were consulted on the point of jurisdiction in this case, and they were decided in their opinion, that the circuit court had jurisdiction, and exclusively of the district court.

* Le Cassius.

The Government of the United States had no part in originating this prosecution; and the district attorney, in behalf of the United

« ForrigeFortsett »