however, the law of nations is considered by the act affixing penalties to certain crimes as being in force, and some of its subjects are thrown under particular provisions We are, then, to determine whether the facts upon which Mr. Van Berckel remonstrates fall within these provisions; what would be the consequence of finding this to be the case; and what ought to be done to avenge an infraction of the law of nations, which may not be punishable under any merely municipal law? The arrest of the domestic servant of a public minister is declared illegal by the act concerning crimes; all process for the purpose is annulled; and the persons concerned in the process are liable to imprisonment not exceeding three years, and to a fine at the discretion of the court. If, however, the domestic be a citizen or inhabitant of the United States, and shall have contracted, prior to his entering into the service of the minister, debts still unpaid, he shall not take the benefit of the act; nor shall any person be proceeded against under the act for such arrest, unless the name of the domestic be registered in the Secretary of State's office, and transmitted to the marshal of the district in which Congress shall reside.

The going into Mr. Van Berckel's mansion, and serving an execution, is not animadverted upon by the federal law. These two examples of offence must, I think, be examined by different rules. In that of arresting a domestic, Congress appear to have excluded every resort to the law of nations. This must be the effect of their regulations, or else the of fender would be punishable both under that and the law of nations; or at least under either, at the will of the prosecutor. But this cannot be conceived as the sense of the legislature. It is presumable that they meant to settle this subject in all points appertaining to it. Mr. Van Berckel, then, can appeal, upon the arrest, to the federal act alone; according to which, the officer arresting may protect himself, if he can with truth use the proviso contained in the 26th section.

The other branch of the officer's conduct, to wit: the entering into the house to serve an execution, will either be absorbed in the arrest, as being necessarily associated with it, if that should be found criminal; or, if the arrest be admissible, must be punished, if at all, under the law of nations, as being left untouched by the municipal act. It then becomes a question whether it be an offence, and in what degree, against the law of nations, to go into the house of a minister, peaceably to arrest a man who might be elsewhere lawfully arrested? I shall not ask what might be done if a minister were to afford an asylum to a man not entitled to protection against the civil process of the country, because here it cannot possibly be insinuated. Nor will I say that such a regard is not due to his residence as to forbid an intrusion for the purpose of arresting, by ordinary process, even an unprotected man. But even if it should be proved that the domestic could not claim the benefit of the act of Congress, the mere going into the house and executing a precept will probably sustain a prosecution; but, at best it would be esteemed summum jus. On the other hand, if the officer could be mulcted for the arrest, on the principle of the arrest, the federal courts are open to all cases cognizable under the authority of the United States.

I ought not to omit for your consideration a remark arising from a comparison of the 25th and 26th sections of the act of Congress. The former renders the process void, to all intents; the latter denounces a penalty against the persons concerned in it, and furnishes the excuse in

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 aggression which shall be made after the servants shall have been enrolled in your office. Perhaps it might be expedient 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,
EDM. 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 laws.

The government nay instruct the attorney for the district of Georgia to prosecute the offenders criminaliter, as far as the law will permit, 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 ul timo, 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 manner, 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, constantly having in view the restitution of the negroes to their true owner; and, secondly, if criminal process should be insufficient to procure such restitution, to institute 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. I have the honor to be, sir, your obedient servant, EDM. RANDOLPH.

To the SECRETARY OF STATE.

REPRISALS.

1

The laws of nations do not allow reprisals except in cases of violent injuries directed and supported 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, a writ of error may 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 copies, that the subject of Mr. Pagan has been for some time in my view. The former of those letters being intended for you, and containing a summary of facts, I determined to show it to Mr. Tilghman, who was Pagan's counsel, before it was sent to you, in order that he might correct any misstatement. This produced the latter letter from him to me; and I have thought it more advisable to forward both of them to you, even in the unfinished state of my own, than to reduce the case into a form which might be supposed to be less accurate. As I do not discover an essential difference between Mr. Tilghman and myself, I shall not discuss any seeming variance, but proceed upon his ideas. It is too obvious to require a diffusive exposition that the application for a writ of error was not only prudent, but a duty in Pagan. To this Mr. Tilghman explicitly assents, when he says that he was perfectly "satisfied of the prudence of applying for the writ of error, as Pagan could not complain of a defect of justice until he had tried the writ of error, and found that mode ineffectual." This remark becomes the more important, as it manifests that the process was not suggested as an expedient for shifting any burden from the government. Indeed, I may with truth add, that the proceedings, taken collectively, appeared to me to present a sufficient intimation of the main question to serve as a ground of decision. However, take the case under either aspect-as excluding the consideration of the main question by an omission in the pleadings and record, or as exhibiting it fully to the cognizance of the court-it never was pretended that a writ of error ought to have been granted, unless the matter was apparent on the record. Whose office was it to make it thus apparent? Of the attorney who managed the pleadings. If, 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, what remedy ought the Supreme Court of the United States to have administered even if the question 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 different 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 adverse 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, except in case of violent injuries directed and supported by the State, and justice absolutely denied, in re minime dubiâ, 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 observations already made will induce you to think, with me, that government is not bound to interpose further in the behalf of Pagan.

I have the honor, sir, to be, with respect and esteem, your most obedient servant,

To the SECRETARY OF STATE.

EDM. RANDOLPH.

SEIZURE IN NEUTRAL WATERS.

The arrest of the ship Grange within the capes of the Delaware was a seizure in neutral territory, and the attack of an enemy in neutral territory is absolutely unlawful.

The neutrality of the Delaware does not depend on any of the various distances claimed in the sta 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 attaching 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

the act.

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 Atlantic 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 sea. 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 ap pear 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 people 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