Page images
PDF
EPUB

to reduce the presentment into form, and the point in controversy wil thus be put in a train for judicial determination.

I have the honor, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

DUTIES OF DISTRICT MARSHALS.

Marshals are not required by law to execute the sentence of a French consal, arising under th 12th article of the convention with his Most Christian Majesty and the United States.

NEW YORK, March 6, 1794.

I HAVE Considered the twelfth article of the convention between his late Most Christian Majesty and the United States of America, and also the act of Congress concerning consuls and vice-consuls, as far as it pre scribes the duty of the marshals of the United States; and it is my opinion that the marshals are not bound by law to execute any sentence of a French consul, arising under the said article.

RICH. HARRISON,

Attorney United States for the New York District.

PHILADELPHIA, March 14, 1794.

I have considered the convention and acts above referred to, and I perfectly coincide in the opinion given by the attorney of the United States for the district of New York.

WM. BRADFORD.

PATENTS FOR LANDS IN VINCENNES.

The act of 3d March, 1791, directing the laying out of tracts to inhabitants of Vincennes, did not authorize either the President or the governor to make any conveyances for the allotments; and if patents are necessary to confirm the titles, it yet remains with Congress to direct by whom they shall be issued.

MARCH 25, 1794.

SIR: In answer to your inquiry whether the President of the United States, or the governor of the Western Territory, ought to issue patents for the lands granted to the inhabitants of Vincennes, upon the Wabash river, I have now the honor to state to you my opinion.

It appears that Congress, by their resolve of the 20th June, 1788, directed that three tracts of land should be laid out in the form of parallelograms, for the benefit of these inhabitants; which were to be distributed among them by lot, in the proportion of 400 acres for each family, and immediate possession given; but no title could be acquired until they had resided thereon three years from the time of such distribution.

By the act of 3d March, 1791, the governor of the Western Territory is "directed to lay out three tracts of land, agreeably to the said act of 20th June, 1788;" but he is not authorized to make any conveyances or patents to the settlers for their respective allotments.

It is remarkable that he is empowered to carry the first part of the said resolve into complete effect, and to confirm the title of the settlers to other lands claimed by them; and, also, to make grants of land, not exceeding 100 acres, to certain settlers who had not obtained any donation land under the former acts. The opinion of Congress may therefore be inferred, that the governor of the Western Territory is the proper officer to issue the patents or grants in question; but if that was their opinion, they have not expressed it; nor are the words of the act broad enough to implicate any such power.

I am also of opinion that there is nothing in the constitution or laws that invests the President with authority to issue patents to these settlers. If, therefore, patents are thought necessary to confirm the titles which the individuals have acquired by allotment and residence, agreeably to the provisions of the resolve of the 20th June, 1788, it remains with Congress to direct by whom they shall be issued.

I have the honor to be, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

PATENTS UNDER THE ACT OF 1787.

Persons having land allotted them under the act of 29th August, 1787, are not entitled to patents until provision shall be made for issuing them.

APRIL 29, 1794.

SIR: I perceive, by the letter of the secretary of the Western Territory, that the settlers who are desirous of obtaining patents for their donation lands are not those referred to in my letter of the [25th March,] but such as are entitled, and have had them laid out, under the resolve of Congress of the 29th August, 1787. These persons, however, are in the same situation as the former, so far as relates to a confirmation of their rights by patent: there being no authority for granting patents to them vested either in the President or in the governor of the Western Territory. I have the honor to be, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

SUITS AGAINST FOREIGNERS.

The late governor of Guadaloupe, who had caused a vessel to be seized and condemned by authority assumed as such officer, being prosecuted in the court of Pennsylvania, whilst here as a prisoner of war, on parole, is not more exempt than any other foreigner (not a public minister) from suit and arrest.

If the circumstances attending the seizure were such as will constitute a defence, they must be pleaded in the action. If the seizure were an official act, done by the defendant under color of the powers vested in him as governor, they will be an answer, as the extent of defendant's authority can be determined only by the constituted authorities of his own nation.

PHILADELPHIA, June 16, 1794. SIR: I have attentively considered the request made by the minister of the French republic, that the suit commenced in the court of this State

against the late governor of Guadaloupe may be stopped. The ground of this request is, that the cause of action arose from the seizure and condemnation of a vessel, made at Guadaloupe, under the authority of the governor, by virtue of the powers vested in him as such. It is added, that the governor arrived here as a prisoner of war to the British forces, (on parole;) and that his voyage to France is prevented only by the arrest which has been made.

From this state of facts, it does not appear to me that the defendant has any legal claim to be privileged from arrest; nor have the judges, on that ground, any power to stay the proceedings against him, without the consent of the plaintiff. With respect to his suability, he is on a footing with any other foreigner (not a public minister) who comes within the jurisdiction of our courts. If the circumstances stated form of them. selves a sufficient ground of defence, they must, nevertheless, be regularly pleaded; and the court will not hear them upon motion, for the purpose of quashing the writ or setting aside the arrest.

But, sir, if his being obliged to give bail be the circumstance which prevents his departure for France, it is probable he may be relieved from it, by citing the plaintiff before a judge of the court from whence the writ issued, to show his cause of action. I am inclined to think, if the seizure of the vessel is admitted to have been an official act, done by the defendant by virtue, or under color, of the powers vested in him as governor, that it will of itself be a sufficient answer to the plaintiff's action; that the deferidant ought not to answer in our courts for any mere irregularity in the exercise of his powers; and that the extent of his authority can, with propriety or convenience, be determined only by the constituted authorities of his own nation. If this principle can be made evident to the judge, he will discharge the defendant from his bail, and the plaintiff would probably prosecute his suit no further.

Bat, be this as it may, it is evident that this is not a case for the interposition of the government; and that Mr. Collot must defend himself by such means as his counsel shall advise.

I have the honor, &c.,

To the SECRETARY OF STATE.

HABEAS CORPUS.

WM. BRADFORD.

A writ of habeas corpus may be awarded to bring up an American subject unlawfully detained on board a foreign ship-of-war; the commander being fully within the reach of, and amenable to, the actual jurisdiction of the State where he happens to be.

JUNE 24, 1794.

THE Attorney General has the honor to report to the Secretary of State that he has not been able to meet with any case in the English reports, from which it appears that a habeas corpus has been actually awarded to bring up an English subject illegally detained on board a foreign ship of war. Whether this be owing to no such detention having taken place, or to any modern courtesy of applying to the minister of the proper nation, before redress is sought in the usual course of law, the Attorney General cannot determine; but he is satisfied that a British subject, detained on

board such foreign vessel in the ports of that kingdom, is entitled to this writ, and that the commander may be legally compelled to obey it. It is a writ extensively remedial; and, in Bourn's case, even before the habeas corpus act, it was declared to be "a prerogative writ, and that it concerns the king's justice to be administered to his subjects; for the king ought to have an account why any of his subjects are imprisoned and it is agreeable to all persons and places" Hence it has been awarded to every part of the king's dominions-to places usually privileged, and where, in ordinary cases, the king's writ does not run.

The ports and harbors of England are a part of the kingdom. The jurisdiction of the nation is as complete over them, as over the land itself; and the laws of nations invest the commander of a foreign ship-of-war with no exemption from the jurisdiction of the country into which he comes. Indeed, it cannot be conceived that any sovereign power would permit its subjects to be imprisoned in its own territory, by foreign authority or violence, without using the most effectual means in its power to procure their enlargement. Even the house of a foreign minister cannot be made an asylum for a guilty citizen, nor (it is apprehended) a prison for an innocent one. And, though it be exempt from the ordinary jurisdiction of the country, yet, in such cases, recourse would be had to the interposition of the extraordinary powers of the State. The commander of a foreign ship-of-war, however, cannot claim that extraterritoriality which is annexed to a foreign minister and to his domicil; but is conceived to be fully within the reach of, and amenable to, the usual jurisdiction of the State where he happens to be.

The Attorney General, therefore, conceives that a writ of habeas corpus might be legally awarded in such case, although the respect due to the foreign sovereign may require that a clear case be made out before the writ be directed to issue.

WM. BRADFORD,

DISCHARGE OF A CRUISER.

A vessel under arrest, to prevent her from cruising against belligerent powers, may be discharged on the order of the President, communicated to the marshal having her in custody.

The expenses occasioned by the arrest should be paid by the owner, and be made a condition of the delivery; and the suit commenced by him ought to be withdrawn before any indulgence is granted.

JULY 5, 1794.

THE Attorney General has the honor of reporting to the Secretary of State, that, agreeably to his request, he has examined the letter of the 27th ultimo from the district attorney of New York, with a view to determining "whether the sloop Republican may with propriety be discharged, and in what form."

As this vessel appears to have been arrested merely for the purpose of preventing her from cruising and committing hostilities against some or one of the belligerent powers; as that object has been attained, and the owner has requested that she may be restored, -the Attorney General is of opinion that this vessel may with propriety be delivered up. A formal pardon cannot be necessary or proper in this case; but the delivery may be effected by an order, communicating the determination of the Presi

dent to the marshal in whose custody the vessel is. It is reasonable that the expenses occasioned by the detention of vessels thus circumstanced should be paid by the owner whose misconduct has occasioned the arrest, and that the payment of these be made a term of the delivery; but as the time of detention has, in this particular case, been very considerable, it is possible that these expenses may be greater than (under the circumstances stated in the district attorney's letter) the President would deem it proper to require. Perhaps, therefore, the payment of one-half of the expenses may, under those circumstances, be dispensed with; or it may be proper to delay the order until the amount of the expenses be known. The suit commenced by the owner against Governor Clinton ought also to be withdrawn, before any indulgence is experienced from the governWM. BRADFORD.

ment.

To the SECRETARY OF STATE.

SUITS AGAINST FOREIGNERS.

The government will not interfere with a private action against a foreigner for receiving a negro on board his ship.

The defendant in such a case is on a footing with every other foreigner not a public minister, in respect to his suability, and he must answer or demar to the allegations against him. If he have a good defence under the treaty of peace, he must plead it in the usual course of judicial proceedings; and until the regular course of such proceedings shall have failed to do justice to a foreigner, there can be no just ground of complaint to the President.

PHILADELPHIA, July 26, 1794.

THE Attorney General has the honor to report to the Secretary of State that he has attentively considered the request made by the minister of his Britannic Majesty, that the government would interpose to stay the suit brought in the State of New York against Captain Cochran, by Mr. Rose, a citizen of South Carolina. The ground of this request is, that the suit is brought "on account of a negro, whom the plaintiff pretends to be his property, and to have been received on board his Britannic Majesty's ship Carolina, when she was under the command of Captain Cochran, at Charleston, during the war, and at the period of the evacuation of that place.'

[ocr errors]

The Attorney General is of opinion that it does not appear from this state of facts that the defendant has any legal claim to be privileged from arrest, or the government any authority to interfere, so as to stay the proceedings against him, without the consent of the plaintiff. He is, with respect to his suability, on a footing with every other foreigner (not a public minister) who comes within the jurisdiction of our courts, and he must answer or demur to the allegations against him. If he has (as the minister contends) a good defence under the treaty of peace, he must nevertheless appear and plead it in the usual course of judicial proceedings. The court will not determine the merits of the cause on motion; but when all the facts are before them, there is no doubt but they will faithfully declare the law which arises upon them, and afford to the defendant every protection to which he is entitled under the treaty of peace. Until the contrary appears until injustice is done to him-there can be, it is apprehended, no just ground of complaint from the British minister.

The Attorney General would only add, further, that if the defendant has

« PreviousContinue »