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certain circumstances. Now, should Mr. Van Berckel's servant not be a citizen or inhabitant of the United States, who may have contracted the debt prior to his entering into the minister's service, the execution may be void, although the officer may be exempt from punishment. But I should doubt, upon the whole, whether, if the servant has not been regis. tered, it might not be as well to apprize the minister of the law, and to pursue with vigor any like aggressiou which shall be made after the servants shall have been enrolled in your office. Perhaps it might be ex. pedient to publish in the newspapers the 25th, 26th, and 27th sections of the law. I have the honor, sir, to be your most obedient servant,
EUM. RANDOLPH. To the SECRETARY OF STATE.
ABDUCTION AND RESTITUTION OF SLAVES.
The bringing away of slaves from Martinique, the property of residents there, may be piracy,
and, depending upon the precise place of its commission, nay only be an offence against the municipal laus. The g vernment may instruct the attorney for the district of Georgia to prosecute the offenders criminaliter, as far as the law will permir, having in view the restitution of the negroes to their true owner; and if that fail to restore them, to issue civil process with the approbation of the owner or agent.
PHILADELPHIA, November 1, 1792. SIR: The Attorney General of the United States has the honor of re. plying to the communication of the Secretary of State, of the 28th ultimo, concerning the proceedings of Captain Hickman, in bringing away from Martinique certain slaves, the property of residents there. Judg. ing from the documents which have been forwarded to him, the Attorney General would not hesitate to pronounce that a theft has been committed; but the fact may turn ont otherwise upon confronting testimony. In like napner, the offence would seem to be a piracy; but it may prove, when its precise place of commission shall be fixed, to be of a mere mu. nicipal kind. Under these circumstances the government cannot give, it is presumed, any specific instructions to any officers of the United States, except to the attorney of the district of Georgia, as follows: First, to prosecute the culprits criminaliter, as far as the law will permit, constanily having in view the restitution of the negroes to their trne owner; and, secondly, if criminal process should be insufficient to procure such restitution, to iustitute the necessary civil process for the like purpose, with the approbation of the owners or their agent. The last remark is made in order to impose the expense of a suit upon the individuals interested, rather than to assume any responsibility on the United States. í bave the honor to be, sir, your obedient servant,
EDM. RANDOLPH. To the SECRETARY OF STATE.
The laws of nations do not allow reprisals except in cases of violent injuries directed and su
ported by the State, and the denial of justice by all the tribunals and the prince. Where error is apparent on the record of a judgment for unjustifiable seizure in a State court • writ of error niay be applied for in behalf of the aggrieved party.
PHILADELPHIA, April 12, 1793. Sir: You will perceive, from the two letters of which I enclose copie that the subject of Mr. Pagan has been for some time in my view. TE former of those letters being intended for you, and containing a summar of facts, I determined to show it to Mr. Tilghman, who was Pagan counsel, before it was sent to you, in order that he might correct an misstatement. This produced the latter letter from him to me; an I have thought it more advisable to forward both of them to you, eve in the unfinished state of my own, than to reduce the case into a for which might be supposed to be less accurate. As I do not discove an essential difference between Mr. Tilghman and myself, I sha not discuss any seeming variance, but proceed upon his ideas. It too obvious to require a diffusive exposition that the application for writ of error was not only prudent, but a duty in Pagan. To this M Tilghman explicitly assents, when he says that he was perfectly “sati fied of the prudence of applying for the writ of error, as Pagan coul not complain of a defect of justice until he had tried the writ of erro and found that mode ineffectual.” This remark becomes the more in portant, as it manifests that the process was not suggested as an pedient for shifting any burden from the government. Indeed, I may wil truth add, that the proceedings, taken collectively, appeared to me to pre sent a sufficient intimation of the main question to serve as a ground decision. However, take the case under either aspect-as excluding th consideration of the main question by an omission in the pleadings an record, or a3 exhibiting it fully to the cognizance of the court-it neve was pretended that a writ of error ought to have been granted, unles the matter was apparent on the record. Whose office was it to mak it thus apparent? Of the attorney who managed the pleadings. It therefore, he has failed to do so, we may presume that he considered the ground untenable, or was guilty of inattention. Either presumption would be fatal to a citizen of the United States; and the condition of a foreigner cannot create a new measure in the administration of justice It is, moreover, certain that those who have been consulted on Pagan's behalf, as well as others, have seriously doubted whether a cause which has been pursued to the extent which his had reached before the com mencement of our new government, was susceptible of federal relief.
The last observation opens the inquiry, whať remedy ought the Su preme Court of the United States to have administered even if the ques tion had been fairly before them? My opinion is, that the very merits are against Mr. Pagan. In America, the construction of the armistice has been almost universally to compute the places, within which differen times were to prevail, by latitude only. Am I misinformed that such an interpretation has been pressed by our ministers, and not denied by those of London? A second mode has been adopted, by describing a circle, and thereby comprehending longitude as well as latitude. Now, let either rule be adopted, and the position of the capture in this case will be ad. verse to Pagan's pretensions.
But what can be exacted from our government after repeated trials before various jurisdictions, none of which can be charged with any symp. tom of impropriety, and upon a subject which, to say no more, is at least equipoised ? Nothing. And I appeal to the British reasoning on the Silesia loan as supporting this sentiment, in the following passages: “The laws of nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, do not allow of reprisals, ex: cept in case of violent injuries directed and supported by the State, and justice absolutely denied, in re minime dubia, by all the tribunals, and afterwards by the prince.” “Where the judges are left free, and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals. Upon doubtful questions, different men think and judge differently; and all a friend can desire, is, that justice should be as impartially administered to him, as it is to the sub. jects of that prince in whose courts the matter is tried.” Under such circumstances, a citizen must acquiesce. So, therefore, must Pagan; against whom even the court of Nova Scotia, within the dominions of his own sovereign, has once decided.
There are many smaller points arising from the controversy, which might be relied on. But I pass them over, from a hope that the observatious already made will induce you to think, with me, that government is noi bound to interpose further in the behalf of Pagan.
I have the honor, sir, to be, with respect and esteem, your most obedient servant,
EDM. RANDOLPH. To the SECRETARY OF STATE.
SEIZURE IN NEUTRAL WATERS.
The arrest of the ship Grange within the capes of the Delaware was a seizure in neutral terri
tory, and the attack of an enemy in neutral territory is absolntely unlawful. The neutrality of the Delaware does not depend on any of the various distances claimed in the
*a by different nations possessing the neighboring shore, for here the treaty of Paris and the law of nations, together, will perhaps justify the United States in allaching to their coasts
an extent into the sea beyond the reach of cannon-shot. As the ship Grange has been seized in neutral waters, restitution is the duty arising from
PHILADELPHIA, May 14, 1793. Sir: The Attorney General of the United States has the honor of sub. mitting to the Secretary of State his opinion concerning the seizure of the ship Grange.
The essential facts are
That the river Delaware takes its rise within the limits of the United States.
That, in the whole of its descent to the Atlantic ocean, it is covered on each side by the territory of the United States.
That, from tide-water to the distance of about sixty miles from the Al. lantic ocean, it is called the river Delaware.
That at this distance from the sea it widens, and assumes the name of the bay of Delaware, which it retains to the mouth.
That its mouth is formed by the Capes Henlopen and May; the former
belonging to the State of Delaware, in property and jurisdiction; the latter to the State of New Jersey.
That the Delaware does not lead from the sea to the dominions of any foreign nation.
That, from the establishment of the British provinces on the banks of the Delaware to the American revolution, it was deemed the peculiar navi. gation of the British empire.
That by the treaty of Paris, on the 3d day of September, 1783, his Bri. tannic Majesty relinquished, with the privity of France, the sovereignty of those provinces, as well as of the other provinces and colonies.
And that the Grange was arrested in the Delaware, within the capes, before she had reached the sea, after her departure from the port of Philadelphia.
It is a principle firm in reason, supported by the civilians, and tacitly approved in the document transmitted by the French minister, that to attack an enemy in a neutral territory is absolutely unlawful.
Hence, the inquiry is reduced to this simple form: whether the place of seizure was in the territory of the United States ?
From a question originating under the foregoing circumstances, is obviously and properly excluded every consideration of a dominion over the
The solidity of our neutral right does not depend, in this case, on any of the various distances claimed on that element by different nations possessing the neighboring shore. But if it did, the field would probably be found more extensive and more favorable to our demand than is supposed by the document above referred to; for the necessary or natural law of nations, (unchanged as it is, in this instance, by any compact or other obligation of the United States,) will, perhaps, when combined with the treaty of Paris in 1783, justify us in attaching to our coasts an extent into the sea beyond the reach of cannon-shot.
In like manner is excluded every consideration how far the spot of seizure was capable of being defended by the United States; for although it will not be conceded that this could not be done, yet will it rather appear that the mutual rights of the States of New Jersey and Delaware, up to the middle of the river, supersede the necessity of such an investigation.
No. The corner stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the sea.
The high ocean, in general, it is true, is unsusceptible of becoming property. It is a gift of nature, manifestly destined for the use of all mankind-inexhaustible in its benefits-not admitting metes and bounds. But rivers may be appropriated, because the reverse is their situation: were they open to all the world, they would prove the inlets of perpetual disturbance and discord; would soon be rendered barren by the number of those who would share in their products; and, moreover, they may be defined.
“A river, considered merely as such, is the property of the people through whose lands it flows, or of him under whose jurisdiction that peo. ple is." Grot. b. 2, c. 2, s. 12.
“Rivers might be held in property, though neither where they rise, nor where they discharge themselves, be within our territory, but they join to water above and below, or the sea. It is sufficient for us that the larger portion of water.(that is, the sides) is shut up in our banks; and that the
river, in respect of our land, is itself small and insignificant." Grut. b. 2, c. 3, s. 7. And Barbeyrac, in his note, subjoins, that neither of these is necessary.
“Rivers may be the property of whole States." Puff. b. 3, c. 3, s. 4.
“To render a thing capable of being appropriated, it is not strictly neces. sary that we should enclose it, or be able to enclose it within artificial bounds, or such as are different from its own substance; it is sufficient if the compass and extent of it can be any way determined. And therefore Grotius hath given himself a needless trouble, when, to prove rivers capa. ble of property, he useth the argument, that although they are bounded by the land at neither end, but united to the other rivers or the sea, yet it is enough that the greater part of them—that is, their sides—are enclosed.”' Puff. b. 4, c. 5, s. 3.
“When a nation takes possession of a country in order to settle there, it possesses everything included in it, as lands, lakes, rivers, &c.” Vattel, b. 1, c. 22, s. 266.
To this list might be added Bynkershoeck and Selden. But the disser. tation of the former, De Dominio Maris, cannot be quoted in detachment; and the authority of the latter on this head may, in the judgnient of some, partake too much of affection for the hypothesis of mare clausum. As Selden, however, sinks in influence on this question, so must Grotius rise, who contended for the mare liberum; and his accurate commentator, Rutherforth, confirms the principles in the following passage: “A nation, by settling upon any tract of land which at the time of such settlement had no other owner, 'acquires, in respect of all other nations, an exclusive right of full or absolute property, not only in the land, but in the waters likewise that are included within the land, such as rivers, pools, creeks, or bays. The absolute property of a nation, in what it has thus seized upon, is its right of territory.” 2 Ruth. b. 2, c. 9, s. 6.
Congress, too, have acted on these ideas, when, in their collection laws, they ascribe to a State the rivers wholly within that State.
It would seem, however, that the spot of seizure is attempted to be withdrawn from the protection of these respectable authorities, as being in the bay of Delaware, instead of the river Delaware.
Who can seriously doubt the indentity of the river and bay of Delaware? How often are different portions of the same stream denominated differently. This is sometimes accidental; sometimes for no other purpose than to assist the intercourse between man and man, by easy distinctions of space. Are not this river and this bay fed by the same springs from the land, and the same tides from the ocean? Are not both doubly flanked by the territory of the United States? Have any local laws, at any time, provided variable arrangements for the river and the bay? Has not the jurisdiction of the contiguous States been exercised equally on both?
But suppose that the river was dried up, and the bay alone remained: Grotius continues the argument of the 7th section of the 3d chapter of the 2d book, above cited, in the following words:
“By this instance it seems to appear that the property and dominion of the sea might belong to him who is in possession of the lands on both sides, though it be open above as a gulf, or above and below as a strait; provided it is not so great a part of the sea, that, when compared with the land on both sides, it cannot be supposed to be some part of them. And now what is lawful to one king or people, may be also lawful to two or