tween the public officers along our frontiers. But a similar exemption should prevail in the Spanish dominions as to our officers who go there on public missions.

I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE,

Attorney General.

LIBELLOUS PUBLICATIONS.

Certain letters addressed to Philip Fatio, and published, concerning the King of Spain and his minister plenipotentiary here, are libellous, and the editor is indictable.

A malicious defamation of any person, and especially a magistrate, by printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule, is a libel.

If a foreign ambassador commit an offence in our country, it belongs to the President, not to an individual citizen, to take notice of it.

PHILADELPHIA, July 27, 1797.

SIR: I have examined the complaints of the minister of Spain against 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

selves, he will not be punished; if otherwise, the injury should be redressed.

An an bassador, or other representative of one foreign nation residing in another, is entitled to be treated with respect, so long as he is permitted to continue in the country to which he is sent, and especially ought not to be libelled by any of the citizens. If he commits any offence, it belongs, in our country, to the President of the United States to take notice of it, and not to any individual citizen. The President may dismiss him, or desire his recall; or complain to his sovereign, and require satisfaction.

An affront to an ambassador is just cause for national displeasure, and, if offered by an individual citizen, satisfaction is demandable of his nation. It is not usual for nations to take serious notice of publications in one nation containing injurious and defamatory observations upon the other; but it is usual to complain of insults to their ambassadors, and to require the parties to be brought to punishment. I shall not anticipate. the defence which Mr. Cobbett may make, but mean only to say that he should be prosecuted; leaving the event to the proper tribunal.

It was considered by me whether the trial could be had in the Supreme Court, and I think it cannot.

By the constitution, it is declared that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress from time to time may establish, and shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made or to be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls, &c. &c. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction; in all other cases, appellate jurisdiction, &c.— 3d art., 1st and 2d sections.

The act to establish the judicial courts of the United States, passed on the 24th September, 1789, gives to the Supreme Court exclusive jurisdiction of suits and proceedings against ambassadors or other public ministers, so far as is consistent with the law of nations. It also gives original, but not exclusive, "jurisdiction of suits brought by ambassadors or other public ministers, or in which a consul or vice consul shall be a party.”— Section 13.

Thus it appears that the constitution has given to the Supreme Court a capacity to hold criminal jurisdiction in all cases affecting ambassadors, which expressions comprehend a libel of an ambassador; but that no law exists calling into action this constitutional capacity. A criminal prosecution for a libel upon an ambassador is not a suit brought by him, but is a proceeding of the United States; and therefore it is not within the 13th section of the act which has been mentioned. At the August term, (1796,) after mature consideration, it was determined by four judges of the Supreme Court, that, with regard to the judicial power of the United States, granted by the constitution, it remains inactive and unexerciseable until by law it is drawn into action.

I am also of opinion that an ambassador is not liable in any case, according to the law of nations, to answer either criminally or civilly before any court of the foreign nation to which he is sent. Comformable to this principle is the 25th section of the act for the punishment of certain crimes, passed on the 30th April, 1790.—Vol. 1, p. 111.

Hence it seems evident that the Supreme Court has not an original criminal jurisdiction in any case whatever, though it is capable of having such jurisdiction in cases affecting ambassadors such as an assault or libel, or other crime done to an ambassador-whenever a law shall be passed for such purposes.

I am, &c., &c.,

CHARLES LEE.

To the SECRETARY OF STATE.

DIPLOMACY.

A foreign minister should correspond with the Secretary of State on matters which interest his nation, and not through the press of our country. He has no authority to communicate his sentiments to the people of the United States, by publications in manuscript or print.

PHILADELPHIA, July 27, 1797.

SIR: You will observe that my letter of this date contains an answer to yours of the 24th instant upon one of the subjects which you submitted to my consideration; and I shall now give my opinion on the other.

The Chevalier de Yrujo, in sending a translation of his letter to you of the 11th instant, to Benjamin Franklin Bache and William Cobbett, and directing it to be printed, deviated from propriety. A foreign minister here is to correspond with the Secretary of State on matters which interest his nation, and ought not to be permitted to do it through the press in our country. He has no authority to communicate his sentiments to the people of the United States, by publications either in manuscript or print which he shall write and circulate while resident among us; but his intercourse is to be with the Executive of the United States only, upon matters that concern his mission or trust. His conduct in this instance I deem a contempt of the government, for which he is repre hensible by the President.

I cannot discover that this letter is libellous on the government or any public officer, though it may be charged with a degree of indecency and insolence.

The publication of it by Mr. Bache first, and Mr. Cobbett afterwards, cannot be considered as criminal, unless in the light of a contempt to the government of the United States; for they ought not to have joined the minister in the act. I am of opinion, therefore, that no prosecution of either of the editors can be maintained, for a libel in this instance, and that no legal prosecution of either of them is advisable.

To the SECRETARY OF STATE.

I am, &c., &c.,

CHARLES LEE.

MISDEMEANOR.

It is a misdemeanor to plot and combine to disturb the peace and tranquillity of the United States, and to draw them into a war with a foreign nation.

PHILADELPHIA, July 28, 1797.

SIR: Being informed that William Blount was lately met on the road, a few miles beyond Staunton, in Virginia, and that some of the citizens

intended to pursue him and arrest him, and bring him back to Staunton, I think it advisable that you should transmit there some evidence that will authorize him to be taken into legal custody, and dealt with according to law.

Mr Archibald Stewart, at or near Staunton, is a gentleman of reputation and ability at the bar, and is recommended to be employed as counsel for the United States in this instance, to whom may be enclosed the following papers:

1. The warrant issued by Judge Peters, which was not executed, and can be only executed within the State of Pennsylvania. This will be evidence that the proper affidavits have been made before him for arresting William Blount; and, of itself, would be sufficient evidence to a justice of the peace in Virginia to issue a new warrant directed to any proper officer in Virginia, for arresting and bringing William Blount before him or some other justice of that State.

2. Lest the warrant above mentioned may be deemed insufficient for authorizing a new one, as above stated, let the affidavit of Major Stagg, proving the authenticity of the letter of William Blount, dated 21st April last, and the sworn copy of Carey's deposition, accompany the warrant. Should Mr. Blount be arrested in Virginia, and imprisoned for want of bail, application must be made to Judge Griffin for a warrant to the mar shal of Virginia for removing him to Philadelphia; there to be delivered to the marshal of Pennsylvania. For this proceeding, I refer to the judicial act, 24th September, 1789, section 33.

The charge being a misdemeanor, in plotting and combining to disturb the peace and tranquillity of the United States, and to draw them into a war with a foreign nation, as also in retaining an officer of the United States in an enterprise unlawful by common law, and perhaps by the act of June 5th, 1794, Mr. Blount may be bailed by any justice of the peace for appearing before the circuit court of the United States for the district of Pennsylvania. In this State the offence was partly and principally committed; and therefore the trial must be here.

All the expenses are to be paid by the United States, for delivering the prisoner here, as well as the compensation to Mr. Stewart for his services. If Mr. Blount is not arrested in Virginia, you should desire the papers to be returned to you, as they may be used in another State.

I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.

ASSURANCE OF PARDON.

The district attorney may assure a counterfeiter who shall disclose his accomplices, and produce the plates and counterfeited paper, of a pardon; but the mere disclosure is not enough.

PHILADELPHIA, November 18, 1797.

SIR: I concur with you that Pardon Smith may be pardoned by the President, if he will previously disclose to the attorney of the United States in Massachusetts district the name of the offender at New York who was particeps ciminis in the counterfeiting, and will also cause to be produced and delivered to the attorney the plates and paper which he says are con

cealed and may be obtained by him. The district attorney may be instructed to assure, by promise, a pardon to him when these conditions shall have been performed; and may be directed to do what is necessary for obtaining the plates and paper. Merely to discover the name of the offender in New York is not enough, in my opinion, to entitle the convict to pardon; and the grant of pardon should be deferred till an answer shall be received from the attorney of the district, informing you of the result of the intended discovery of the plates and paper.

I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.

CONSULAR PRIVILEGES.

A consul is not privileged from legal process by the general law of nations, nor is the French consul general by the consular convention between the United States and France.

Though a consul for a transaction in which he acted as the commercial agent of his government, the President has no constitutional right to interpose his authority, but must leave the matter to the tribunals of justice.

PHILADELPHIA, November 21, 1797.

SIR: I have taken into consideration the letter of citizen Letombe, consul general of the French republic in the United States of America, bearing date the 16th instant, with the several papers which accompanied it.

The United States have acknowledged citizen Letombe in the character of consul general; and thus only they know him. As such, he is not privileged from legal process either by the general law of nations, or by the consular convention between the United States and France; and, if he is authorized to represent the republic of France in any ministerial character, he has never yet so offered himself or been received. The second article of the convention seems to me to preclude all doubt respecting the suability of the consul general. The immunities and privileges annexed to his office are there distinctly enumerated; and, in all other respects, he is subject to the laws as our own citizens are. Though the transaction which has given rise to the suit instituted by John Coffin Jones was not of a private character, but of a public nature, which concerned the republic of France, and in which the consul general acted as the commercial agent of the republic; yet the President of the United States has no constitutional right to interpose his authority, but must leave the matter to the tribunals of justice.

It does not belong to me, in my public capacity, to advise how the consul general may proceed to relieve himself from the obligation of giv ing bail; yet, having a wish that every inconvenience may be avoided by him, consistent with the laws of our country, I will venture to sug gest that the right to hold him to bail, or to recover the debt from him, cannot, in my opinion, be maintained; and as to the former, any one of the justices of the Supreme Court is competent to decide at his own mansion, whenever application shall be made. The reason for this opinion is, that it evidently appears the contract was founded on the credit of the French republic only, and not on the private credit of citizen Letombe. I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.