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mischievous. I think it a good general rule, that a thing capable of doing good if judiciously used, may be very pernicious if misapplied. I wish Dr. Perkins to remove ihese doubts by a more full and particular specification.
I am, &c.,
CHARLES LEE. To the SECRETARY OF STATE.
POWERS OF THE EXECUTIVÈ.
The President cannot appoint a commissioner to make a treaty with Indians, for the parpose of extinguishing their title to lands within the United States, without the advice of the Senate.
PHILADELPHIA, May 26, 1796. THE Attorney General is of opinion that the President alone, and without the advice of the Senate, cannot appoint a commissioner 10 hold or make a treaty with an Indian tribe, for the purpose of purchasing and extinguishing their title to land within the limits of the United States. The 12th section of the act to regulate trade with the Indians, passed the 19th instant, prohibits every person, who is not employed under the au hority of the United States, from negotiating any such ireaty or convention, directly or indirectly.
The expression under the authority of the United States cannot mean any other thing than the constitutional authority of the United States, which it is considered cannot be bestowed on any person but by the President, with the advice of the Senate.
CHARLES LEE. To the SECRETARY OF STATE.
EXECUTION OF TREATIES.
Commissioners to execute a treaty must all agree to the same, subscribe thei. names, and attach
their seals thereto.
ALEXANDRIA, July 23, 1796. SIR: I take the earliest opportunity of acknowledging your letter of the 19th, and of communicating my opinion upon the questions propounded by Mr. Howell.
1st. The authority of the commissioners appointed in pursuance of the 5th article of the treaty with Great Britain cannot be duly and legally executed by a majority of them; but they must all agree in their decisions, which must be signed and sealed by them all.
2d. If the two commissioners appointed on the part of Great Britain and the United States disagree in the choice of the third, each is to propose one person; and of the two names so proposed, one shail be drawn by lot. Neither of the original commissioners has a discretionary power to withhold his nominee, or to refuse to draw. by lot for the third commissioner, accordivg to the terms of the asticle. For either to refuse to perform this act, would be a breach of the trust and an abuse of the power committed to them.
I am, &c., &c.,
Attorney General United States. To the SECRETARY OF STATE.
REPARATION-REPRISALS. It is reasonable, as applicable to all nations, to permit a portion of a prize cargo to be sold under
the superintendence of the public officers for reparation of the ship: as to France it is within the 19th article of the treaty of 1778. As to the sailing, the prize-ship should be permitted to sail whenever the captors wish: deception of collector and naval officer affords no ground for detaining it.
PHILADELPHIA, November 15, 1796. Sır: The four questions propounded to you by the minister of the re. public of France, in his letter of the 12th October, are severally answered in your letter of the 24th of the same month, agreeably to the opinions I have formed on those subjects.
I will barely observe, relative to one of the questions, which at first sight seems doubtful, that to permit a part of a prize cargo to be sold for the necessary reparation of the prize ship, under the actual superintendence of our public officers, is reasonable in itself, as applicable to all nations; and as to France, seems to be within the provision of the 19th article of our treaty of 1778 with that nation; the benefits of which cannot be, and never were intended to be, impaired by anything in our treaty of 1794 with Great Britain. Therefore, the 24th article of the last mentioned treaty may be considered as inoperative upon this question. But if it were to be considered as operative upon it, I think the article should receive rather a liberal than a literal interpretation; and cases of necessity and distress ought to be deemed out of the meaning and intent of it.
The prize ship should be permitted to sail whenever the captors wish, though their conduct has been illegal, and though the French consul at Charleston has highly misbehaved in holding a court within the United States for condemning the capture as prize, and in causing a sale to be made under his authority. If a deception has been practised with success, on the collector and naval officer, as to the goods, yet this affords no ground for detaining the ship. These officers appear to have acted honestly and honorably in this affair; and if they have been mistaken in believing it their duty to detain the prize-ship, under the particular circumstances which had occurred, until they should receive explicit instructions from the higher authorities, they are not liable to any censure; nor ought the United States to be responsible to the captors for the loss which happened to a part of the goods by the conflagration in Charleston. If the captors had acted legally and fairly, no difference would have taken place between them and the public officers at that city; and they have been fortunate in obtaining an exportation of any of the goods in neutral bottoms, when the captured ship is actually repaired and fitted for sea; which alone would have been authorized to export these goods, if the collector of the customs had been duly and truly informed of the condition of the prize-ship.
I am, &c., &c.,
CHARLES LEE. To the SECRETARY OF STATE.
It is an offence against the laws of nations for any persons, whether citizens or foreigners, to
go into the territory of Spain wiih inient to recover their property by their own stres.gth,
or in any manner orher than yg laws permit. For the recovery of their property in Florida, and for redress of injuries done there, our citizens
must apply to the tribunals of that province. If a Spanish subject who has violalet the territorial law of Fioriila shall he within the United Staies at the ume of demand for him as a suhjeci and fugitive from justice, he ought to be
given up f r trial and punishmen'; yet there is no law directing the mode of proceeding, If the commandant of the island of Amelia were arrested in Georgia at he suit of an individual, the United States have no power to interfere; if, however, the ruit be a public prosecution in the name of the State of Geurgia, or of the United States, it is proper for the Executive io in
terfere. The treaty with Spain does not extend the jurisdiction of our courts to offences commiided in
Spain, nor vice versa; and according to the common law, the commandant of ihe island of Amelia is not liable to any public proseculion befort any of our courts for his transactions in Florida.
PHILADELPHIA, January 26, 1797. Sir: The letter of the minister of Spain, of the 11th of this month, representing a violation of the territorial rights of his Catholic Majesty, by William Jones, and others his associates; and also complaining of the arrest and prosecution of Don Onofre Gutierrez y Rosa, commandant of the island of Amelia, has been, agreeably to your request, duly considered.
It is an oflence against the laws of nations for any persons, whether citizens or foreigners, inhabiting within the limits of the United States, to go into the territory of Spain with intent to recover their property by their own strength, or in any other manner than its laws authorize and permit. If William Jones, a Spanish subject, had been apprehended in Florida, as he might lawfully have been, he might have been treated and punished for the transgression as a subject of Spain, according to the laws of thai province. So, too, the Americans who joined, aided, and abetted him in the misdemeanor, were amenable to the laws of the province where they committed the offence, and might have been apprehended, tried, and punished there, according to those laws. Willian Jones, and the Americans who accompanied him, are less excusable when it is recollected that, by the 20th article of the treaty between Spain and the United States, free access to the courts of justice in each vation is stipulated and reciprocally granted to the inhabitants of the other; consequently, to the tribunals in Florida our citizens are bound to apply for recovery of their property in that province, as well as for the redress of irijuries done them there; and more especially William Jones, a Spanish subject, ought to have applied to them respecting his runaway slaves.
The constitution gives to Congress, in express words, the power of pass. ing a law for punishing a violation of territorial rights, it being an offence against the law of nations, anu of a nature very serions in its consequences. That the peace of mankind may be preserved, it is the interest as well as 'the duty of every goverunient to punish with becoming severity all the individuals of the State who commit this offence. Cougress has passed no act yet upon the subject, and Jones and his associates are only liable to be prosecuted in our courts at common law for the misdemeanor; and if convicted, to be fined and imprisoned. The common law has adopted the law of nations in its fullest extent, and made it a part of the law of the land.
If a demand were formally made that William Jones, a subject and fugitive from justice, or any of our own citizens, heinous offenders within the dominion of Spain, should be delivered to their government for trial and punishment, the United States are in duty bound to comply; yet, having omitted to make a law directing the mode of proceeding, I know not how, according to the present system, a delivery of such offender could be effected. To refuse or neglect to comply with such a demand, may, under certain circumstances, afford to the foreign nation just cause for war; who may not be satisfied with the excuse, that we are not able to take and de. liver up the offenders to them. This defect appears to me to require a particular law.
It is not distinctly stated by the minister, whether the commandant of the island of Annelia was arrested in Georgia at the suit of an individual prosecuting for himself, or at the suit of the State of Georgia, or of the United States. If the suit be of the first description, the United States have no power to interfere, but the laws are to have their course. Though the comniandant went from Florida into Georgia, by the orders of the governor, he remained, according to the laws of nations, liable to be arrested at the suit of an individual; the immunities or privileges such as an ambassador is permitted to enjoy not being attached to him, by reason of that particular function which he was sent to perform. However uncivil the treatment he has received may appear, neither the law of nations, nor any law of the United States, forbids such a functionary from being sued by an individual, even though the suit be without sufficient cause, or otherwise not maintainable. Supposing, in the present case, the action to have been brought by the individual for a tort committed out of the jurisdiction of the United States, in a foreign country, by a foreign officer, under the orders of the sovereign authority: in my opinion, it cannot be sustained. Yet, I do not admit that any right exists in the government of the United States to interpose; and the bail cannot be discharged, but in the ordinary forms, according to the laws of Georgia. But, if the suit be a public prosecution, in the name of the State of Georgia, or of the United States, it is proper for the Executive to interfere;-in ihe former case, by writing to the governor of that State, requesting him to cause the necessary steps to be taken for dismissing it; or, in the latter, by directing the district attorney of the United States to the same purport.
The 20th article of the treaty is not construed to extend the jurisdiction of our courts to offences committed in Spain, or vice versa; and it is well established, that, according to the doctrine of the common law, the commandant is not liable to any public prosecution before any of our courts for his transactions in Florida.
Though some inconveniences may occasionally occur to foreign officers, such as the coinnandant of a fort or district, who come into the United States upon public business, unless they are exempt from arrests at the suit of individuals, hy some special law to be made for that purpose; yet I am not satisfied that the subject is of so much concern that legal pro.' vision of that import ought to be made.
Probably the instances will rarely happen when any inconvenience shall be experienced from the law as it now stands. It might, however, serve to satisfy the minister and his nation, with whom the inost sincere friend. ship is desired, if such a law were to be passed, in consequence of the remonstrance he has thought proper to make on this occasion; and in other respects it might be found conducive to an harmonious intercours, be
tween the public officers along our frontiers. But a similar exempti should prevail in the Spanish dominions as to our officers who go there public missions. I am, &c., &c.,
Attorney General. To the SECRETARY OF STATE.
Certain letters addressed to Philip Fatio, and published, concerning the King of Spain and h
minister plenipotentiary here, are libellous, and the editor is indictable. A malicious defamation of any person, and especially a magistrate, by printing, writing, signi
or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, an
ridicule, is a libel. If a foreign ambassador commit an offence in our country, it belongs to the President, not t an individual citizen, to take notice of it.
PHILADELPHIA, July 27, 1797. Sır: I have examined the complaints of the minister of Spain agains William Cobbett, editor of Porcupine's Gazette, which he has made to you in his letter of the 21st instant. The several letters addressed to Philip Fatio, published on the 14th, 15th, and 19th of July, to which he has referred, do, in my opinion, contain libellous matter against his Catholic Majesty, and against Carlos Martinez de Yrujo, his minister plenipotentiary here; for which the editor is indictable in the circuit court of the United States for the district of Pennsylvania. The prosecution is, consequently, to be committed to Mr. Rawle, the attorney of the United States for this district; to whom you will please to write, and send a copy of this letter.
That it may appear upon what ground this opinion has been formed, I will make a few remarks.
A libel is defined to be a malicious defamation of any person, and espe. cially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.-4 Bl. Com. 150.
According to this definition, it is manifest that each of those letters may be deemed libellous. As yet, in the United States, the line between the freedom and the licentiousness of the press has not been distinctly drawn by judicial decision. With respect to national concerns among ourselves, as well as with respect to foreign nations, our presses have been unlimited and unrestrained. If on those subjects the liberty of the press can be excessive, or carried to licentiousness, it must be admitted that, in many instances, licentiousness of the press has prevailed in our country. It is important that this subject should be understood, when it is considered that the public mind is in a great degree formed by the press, and that the public opinion is in a great measure directed by the press.
Lord Mansfield has said that the liberty of the press consists in printing without any previous license, subject to the consequence of law;'' and in this definition I concur with the learned judge. It will, then, be no infringement of the liberty of the press to bring a printer before the tribunal of justice to answer for his publications:-if innocent in them