Page images
PDF
EPUB

1 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. į 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 Con. gress to direct by whom they shall be issued. I have the honor to be, &c.,

WM. BRADFORD. To the SECRETARY OF STATE.

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.,

WM. BRADFORD. To the SECRETARY OF STATE.

SUITS AGAINST FOREIGNERS.

The late governor of Guadaloupe, who had caused a vessel to be seized and condemned by au. thority 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 governer, 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 con. demnation 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 regu. larly 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 gov. ernor, 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 irregu. larity 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.

But, 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.,

'WM. BRADFORD, To the SECRETARY OF STATE.

HABEAS CORPUS.

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 amenja. ble 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 habcas 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, co 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 sui 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 circumstan. ces stated in the district attorney's letter) the President would deem it proper to require. Perhaps, therefore, the payment of one-half of the ex. penses 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 government.

WM. BRADFORD. To the SECRETARY OF STATE.

SUITS AGAINST FOREIGNERS.

The government will not interfere with a private action against a foreigner for receiving a negra

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 son 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."

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 pro. ceedings 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 grounā of complaint from the British minister.

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

been maliciously and vexatiously held to bail, (as is suggested,) and with. ont probable canse, he may obtain redress at law.

WM. BRADFORD. To the SECRETARY OF STATE.

SUITS AGAINST FOREIGNERS.

The term prosecutions,” employed in the sixth article of the treaty with Great Britain, imports

a suit against another in a criminal cause; such prosecutions being conducted in the name of the poblie, the ground of them distinctly known as soon as they are instituted, and being always under the control of the government.

AUGUST 5, 1794. Sir: I understand, by your note of the 1st instant, that the opinion given in the case of Captain Cochran has been transmitted to the British minister; and I learn, with regret, that it has not been perfectly satisfac. tory to him. He apprehends that the particular expression, in the sixth article of the treaty, which declares that, for the causes there specified, “no further prosecutions shall be commenced,has been overlooked. I have the honor to assure you, sir, that, on my part, the force of the ex. pression was fully considered; and even allowing it greater latitude than Í am inclined to give it, the result, as to the interference of the government, will be precisely the same.

The term prosecution," in its most natural and usual acceptation, imports a suit against another in a criminal cause: such prosecutions being conducted in the name of the public, commenced by some public officer, and the ground of them distinctly known as soon as they are instituted. They are always under the control of the government, who may stay them in their first stage, and even cause the officer who has wantonly or maliciously commenced them to be punished.

This is not the case in civil suits. Supposing it admitted, by a liberal construction, that such are comprehended under the general description in the sixth article of the treaty; yet how can the precise ground of a civil suit be discovered as soon as it is instituted? and, till it be discovered, hov can the government interfere? The forms in which a suit at law is conducted are so general, that the plaintiff is not obliged to disclose there. by that his action is interdicted by the treaty. The government has no method of compelling him to disclose it in the first stages of the suit; and till it does appear on the record, or on the trial, no notice can be regularly taken of it. When it does appear, it is presumable that justice will be done. So far, therefore, as the government is implicated, a suit cannot be considered as commenced for the prohibited causes, until they be actually disclosed; and as it belongs to the judiciary, in a case like this, to construe the treaty, the citizen has a right to take the opinion of the judges whether the case he makes out comes within the prohibitions of it.

In this situation of things, although the government be ever so “ desirous to guard against every violation of the treaty of peace between the two countries, and to repress any practices in its citizens which involved such a violation,” how is it possible that government should prevent a citizen from commencing a suit at law, which (whatever suggestions the defendant may make) may turn out to be free from exception? If the min.

« PreviousContinue »