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SERVICE OF PROCESS ON A BRITISH SHIP-OF-WAR.
It is lawful to serve either civil or criminal process upon a person on board a British man-of
war lying within our territory.
March 11, 1799. The Attorney General most respectfully reports to the President of the United States, as follows:
The incidents relative to his Britannic Majesty's packet Chesterfield, commanded by Captain Jones, are understood to produce a question whether judicial process may be lawfully served on board a public shipof-war belonging to his Britannic Majesty, lying alongside a wharf in , the city of New York, within the territorial jurisdiction of the State of New York.
This question is deemed of great moment to be rightly settled; and, therefore, it has been very maturely considered with reference to the general laws of nations, the treaty of London between the United States and Great Britain, and the laws and usages of the United States.
It may be assumed, as a doctrine perfectly and incontrovertibly established, that the judicial power of a nation extends to every person and every thing in its territory, excepting only such foreigners as enjoy the right of extraterritoriality, and who, consequently, are not looked upon as temporary subjects of the State. “The empire, united to the domain, establishes the jurisdiction of the nation in its territories or the country that belongs to it. It is that, or its sovereign, who is to exercise justice in all the places under his obedience, to take cognizance of the crimes committed, and the differences that arise in the country.”—Vattel, b. 2, sec. 84. “When a nation takes possession of certain parts of the sea, it enjoys the empire as well as the domain, for the same reason we have alleged in treating of land. These parts of the sea are within the jurisdiction or the territory of the nation; the sovereign commands there; he makes laws, and may punish those who violate them; in a word, he has the same rights there as on land, and, in general, all those given him by the law of the State.”_Vattel, b. 1, sec. 295.
“In general, all the rights which relate to the internal government belong absolutely to the sovereign, and extend to every person and every thing in the territory.”—Martens, b. 3, ch. 3, sec. 1. The supreme police extends to every person and every thing in the territory: foreigners are subject to it, as well as the subjects of the State, excepting only such foreigners as enjoy the right of extraterritoriality, and who, consequently, are not looked upon as temporary subjects of the State.”—Idem, sec. 3, p. 85. “One of the most essential rights in the hands of the sovereign, is the judiciary power. It extends indiscriminately to all who are in the territory, and the sovereign only is the source of it; but it must be remembered that there are persons whose extraterritoriality exempts them from this jurisdiction, such as foreign princes and their ministers, with their retinue.”—Idem, sec. 19, p. 102.
According to the general rule established by these citations, every ship, even a public ship-of-war of a foreign nation, at anchor in the harbor of New York, is within the territory of the State of New York, and subject to the service of judicial process. If an exemption from this rule is claimed by a foreign ship-of-war, it is incumbent on such ship to set forth
and maintain clearly and satisfactorily its right to the exemption, or i must be deemed within the general rule. The officers and crew of a public ship-of-war, being admitted into the United States, are entitled to be treated with hospitality and kindness; but this does not, in reason, require that the ship should be exempt from judicial process; and more especially when they are bound by every kind of obligation to act in conformity to the laws of the country which affords them and their ship its sovereign protection while within its jurisdiction.
It is expressly provided by the iwenty-third article of the treaty of London, that “the ships-of-war of each of ihe contracting parties shall at all times be hospitably received in the ports of the other; their officers and creus paying due respect to the laws and government of the country.” This is conceived to be declaratory of the usage of nations; and here it may be observed, that hospitality, which includes protection, is to be en. joyed upon condition that the laws and government of the country are respected. To disobey judicial process authorized by law, or to resist it, on board of the ship, is inconsistent with a due respect to the laws and government of the country. The article further stipulates that "the officers shall be treated with that respect which is due to the commission which they bear; and, if any insult should be offered to them by any of the inhabitants, all offenders in this respect shall be punished as disturbers of the peace and amity of the two countries."
Here the two nations seemed to have defined the benefits and favors to be reciprocally enjoyed by the officers and crews of the ships-of-war of each, when in the territory of the other; and, from the omission to stipu. late an exemption from legal process while on ship-board, it may be inferred such exemption was not to be expected.
By the seventeenth section of the act of the 4th August, 1790, it is made unnecessary to report and enter at the custom-house any ship-ofwar, or any ship employed by any prince or state as a public packet for the conveyance of letters and despatches, not permitted by the laws of such prince or state to be employed in the transportation of merchandise in the way of trade; and, pursuing the spirit of this law, the President's instructions, dated 4th of August, 1793, to the custom-house officers, forbid them to inspect any vessel of war in the immediate service of the government of a foreign nation until further order; declaring, for a reason, that the propriety of inspecting such a vessel was not without question in reference to the usage of nations.
In the summer of 1794, under the authority of the collector of New York, some of the officers of the custom-house, as the affair was repre. sented by the French minister to the American government, entered on board the ship Favorite, a national ship-of-war of France, and seized arms and ammunition on board of her belonging to the French republic, sus. pected to be intended for exportation, contrary to law, and insulted the French flag in an outrageous manner. Mr. Fauchet complained of this proceeding as an infraction of the law of nations, which nothing could justify, and demanded justice of the authors. The President answered, that he highly disapproved that a public vessel of war, belonging to a for: eign nation, should be searched by officers of the customs upon a susplcion of illicit commerce; that the ground of suspicion should have been represented to the consul of that nation, or the commander of the vessel; and that general instruction would be given to pursue this course in future, with a view that, if it should be ineffectual, the government of the United States may adopt those measures which the necessity of the case and their rights may require; that the prosecution should be discontinued, and the property restored. And the President hoped this reparation of what was passed, and the precaution against the future, would induce the minister to approve the decision, which, from a sense of justice, would lead him to waive any further measures, and that an insult to the French flag would not be permitted with impunity; but, in this case, the alleged circumstances of insult did not with sufficient certainty appear.
Prior to this a short time, the British minister had complained of a violation of the laws of nations, in the case of the Nautilus, by certain persons authorized by the legislature of Rhode Island. He asserted that, by the usage of nations, it was not lawful to search a foreign ship-of-war in the harbors of the United States. The position was not admitted on the part of the United States, but in a manner denied; but, from the particular circumstances of the case, it was unnecessary to decide finally upon it.
Whatever conclusions may be drawn from these transactions in favor of a foreign ship of-war being exempt from the inspection or search of the custom-house officers of this country, they furnish but a feeble argument in favor of the exemption of such a ship from all judicial process, civil and criminal. There is a manifest difference between the two cases. The President, possessing the supreme executive power, may regulate, control, and direct all inferior executive officers in the performance of their offices; but may not interpose his power to the obstruction of a minister of justice in the ordinary course of proceeding. The former is properly cognizable in the executive, and the latter in the judiciary department of government.
But whatever doubts might be otherwise entertained on the present question, they are dispelled by the sense of Congress as expressed in the Tth section of the act passed 5th June, 1794, entitled "An act in ad. dition to the act for the punishment of certain crimes against the United States.” It enacts, “that, in every case in which any process, issuing out of any court of the United States, shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of the subjects or citizens of such prince or state, it shall be lawful for the President of the United States to employ such part of the land and naval force of the United States, or of the militia thereof, as shall be judged necessary,” &C.-Laws of the United States, vol. 3, p. 92.
Here the lawfulness of serving judicial process upon a person on board a foreign ship-of-war within the United States, is undeniably acknowledged by necessary and unavoidable implication. With this view of the subject, the Attorney General is humbly of opinion that it is lawful to serve civil or criminal process upon a person on board a British ship-ofwar lying in the harbor of New York, adjacent to a wharf, and within the territory of the State of New York. If this be lawful, the conduct of Captain Jones is in no small degree reprehensible, who is represented to have assaulted the ministerial officer of justice as he was leaving the ship, by attempting to remove the plank and throw him into the water.
It is submitted to the President whether it would not be expedient for å law to be passed, regulating judicial proceedings relative to foreign
ships of-war in the American ports; and particularly exempting them in future from the service of civil process on account of debt or contract. All which is most respectfully submitted by
Attorney General. To the PRESIDENT OF THE UNITED STATES.
SUITS AGAINST MARSHALS.
The United States may maintain an action of debt on the bond given by a marshal for misfeas. ance of himself or deputies, and a jury may assess the damages. Individuals injured by his official misconduct, may use the name of the United States in prosecuting a suit on the bond to recover satisfaction.
PHILADELPHIA, February 4, 1800, Sir: If the marshal or his deputy commit a misfeasance in office to the injury of the United States, compensation may be obtained for the United States by an action of debt upon the bond given by the marshal in pursuance of the 27th section of the judicial act, which suit may be brought against the marshal and his sureties jointly, or either of them. The jury will assess the damage; and, in such cases, the district attorney is to prosecute the suit.
But if the misfeasance in office occasions an injury to an individual citizen, it belongs not to the district attorney to prosecute such a suit, unless particularly employed by the injured party. I conceive it is implied that an individual injured by the official misconduct of the marshal, may use the name of the United States in prosecuting a suit upon the bond, and may recover satisfaction for the injury done him. In similar cases relative to sheriffs, the State laws provide expressly that the bond may be sued by individuals sustaining injury, and it would be prudent to amend the act of Congress by a new clause of the purport enclosed, to be added to the 27th section. I am, very respectfully, sir, your most obedient servant,
CHARLES LEE. To Oliver Wolcott, Esq.,
Secretary of the Treasury.
LEVI LINCOLN, OF MASSACHUSETTS:
APPOINTED MARCH 5, 1801.
CONFIRMATION OF CERTAIN GRANTS IN INDIANA.
The governor cannot be justified in confirming any of the unauthorized grants, unless actual
fororements were made under them previous to the 3d of March, 1791; nor can he by Ely be justified in making a discrimination between the persons still holding their original
grants, and those who have had such grants confirmed by former governors, or who have parchased under such confirmation, and made improvements, unless such improvements vere made previous to the said 3d of March.
WASHINGTON, December 29, 1801. Str: In answer to your note enclosing a letter from the governor of the lodiana Territory, permit me to state opinions respecting the subject, which are the result of attention and consideration. The provisions of the act of the 3d of March, 1791, (which is very incorrect, and out of which the governor's questions arise) have a reference to matters which were objects of the resolve of Congress of June 20th, 1788. This resolve confirms to the ancient settlers of the Territory, who had professed them. selves citizens of the United States, the land which they possessed on or previous to 1783, and which had been allotted to them according to the lazs and usages of the government under which they had respectively setded. The resolve also provides for the donation of an additional 400 acres of land to each family which was then (on the 20th of June, 1788) living at certain villages within the Territory; but they were not to alienate, or to have a title, until there had been a residence of at least three years within the district, subsequent to the allotment of the same land. Here is described a second set of persons who were to hold land under this resolve, namely, those who lived at certain villages on June 20h, 1788.
The 1st section of the law of the 3d of March, 1791, gives 400 acres of land to each person who, in 1783, was a head of a family, either at Vincennes or at Illinois, and who, after 1783, moved from one of those places to the other; and the government is directed to cause such land to be laid out accordingly. This third set of persons is described by the place they lived at in 1783 as heads of families, and by the place they afterwards moved to previous to the 3d of March, 1791.
The 2d section of the law secures to such heads of families who, in 1783, lived either at Vincennes or Illinois, and who, after 1783, removed without he limits of the Territory, the donation of 400 acres of land, made by the resolve of Congress of the 20th of June, 1788. By mistake, this resolve of Congress is referred to as of the 29th of August. The governor, on application, is directed to cause such land to be laid out to such heads of families and their heirs; and also to cause to be laid off and confirmed