« PreviousContinue »
appealed to the supreme court of the United States, which was not more favourable to him, and confirmed the sentence of the circuit court. The government, notwithstanding the representations of the undersigned minister plenipotentiary, took a decided part in the appeal, and gave it in charge to Mr. Lee, the attorney general, to argue—which he did with much eloquence, but with the success such a cause merited.
. Affair of the Casius.
In the month of Thermidor, of the 3d year, (August, 1795) the corvette Le Casius, belonging to the Republick, commanded by captain Davis, o; sent by general Laveaux to the undersigned minister plenipotentiary, on a F. mission, requiring her immediate return to St.
omingo, was seized in virtue of an order from the district court of the United States, for the state of Pennsylvania. and her captain was arrested at the suit of a merchant of Philadelphia, to answer for a pretended illegal capture made in virtue of his commission, and out of the jurisdiction of the United States.
The undersigned minister plenipotentiary complained of this violation of the treaties and of the law of nations, and requested the government to cause, as soon as possible, the release of the corvette Le Casius and her captain. He conceived himself so much the more grounded in his request, as he knew that a like interposition was not new in the annals of the United States: As he knew that the executive power of the state of Pennsylvania had interposed in a similar case, and in the same manner, in favour of the state of Virginia; and as this measure, dictated by a profound knowledge of the law of nations and of the reciprocal duties of nations, had been approved and ratified by the tribunals, organs of the law.” But Mr. Randolph, Secretary of State of the United States, replied to the undersigned on the 15th of August, 1795—“As long as the question is in the hands of our courts, the Executive cannot withdraw it from them.”
*Simon Nathan versus the Commonwealth of Virginia. Dallas's Re: ports, p. 77.
The undersigned insisting on the 1st Fruetidor, in the third year, 18th August, 1795) expressed himself in these terms: "I do not know nor ought I to know any other than the government of the United States ; I cannot under any shape admit the competency of your tribunals in the different circumstances which ari9e on the execution or inexecution of the treaties, if these tribunals are the first to Tiolate them, I can only address myself to the government for reparation of that violation; otherwise it would be to render the agents of the French government—the French government itself amenable to these tribunals: which would be to reverse principles." Informed that the Casius and her captain might be liberated on giving security, the undersigned requested, by the same letter, that the government of the United States would itself furnish this security i and knowing that the supreme court of the United States, which was then in session, had the power in certain cases of arresting the proceedings of the inferior courts, on their signifying to them a prohibition, he suggested to the secretary to adopt this sure and prompt method to put an end to this vexatious procedure. Both these requests were refused. The captain of Le Casius then addressed himself to the supreme tribunal, requested the prohibition and obtained it. The district court was enjoined immediately to stop the proceedings which had been commenced,'and to liberate captain Davis and his vessel.
But at the very instant in which the marshal was desired to execute the order of the supreme court, he had already «i possession a new order from another tribunal (the circuit court) enjoining him to arrest the vessel anew, upon the charge of an English merchant and naturalized America!*, stating that this vessel had been formerly armed in the United States; and consequently requested that she should be confiscated, one moiety to himself, the other moiety to the government. The undersigned was uninformed whether this vessel had ever been armed in the? ports of the United States, he was even assured that some individuals had only attempted to put on board arms and ammunition, and which they were prevented from doing at the time ; but he takes apon him to affirm, that since this vessel has become the property of the French Republick—General Laveaux armed and equipped her wholly Vol. rr. 2f)
at St. Domingo: and that at her arrival here, she had not a cannon or pound of powder which had not been put on board her in the territory of France. This new order was signed by one of the judges of the supreme court (in quality of circuit judge) who having already ordered the prohibition in the first instance, must have known very well that this vessel was the property of the French Republick; and who must also have known that the circuit court was not competent to this proceeding; which the law and usage have constantly attributed to the district tribunals. But the district” court then sat but once a year at Philadelphia; its approaching yet distant session was to be at York-town, and the prosecutor had adopted this roundabout mode to take away every means from the French Republick of obtaining restitution of her vessel o; before the expiration of near a year. In the interval, she was to rot at the quays of Philadelphia. This has taken place. The undersigned, from a spirit of conciliation, made an useless attempt with one of the judges of the circuit court to obtain the liberation of the vessel on giving security; the reply was that the judge could do nothing of himself; that the court when assembled could alone determine. The undersigned minister plenipotentiary made new representations to the Secretary of State of the United States upon the foregoing facts. Mr. Pickering, then Secretary of State, in his answer of 1st August,f 1795– repeats this phrase of Mr. Randolph. “As long as the question is in the hands of our courts, the Executive cannot withdraw it from them,” adding thereto this remarkable expression; “and therefore is not chargeable with suffering a violation of the treaties subsisting between the two republicks.” The undersigned complained that the new suit commenced against the Casius had been carried to an incompetent tribunal, and in the same letter of 1st August,f 1795, the Secretary of State replied on this head to the undersigned, “ the counsel who have told you that such is the law, have led you into an errour,” &c.—maintaining the competency of the tribunal. The undersigned minister, in these circumstances, saw himself obliged to disarm the vessel, to discharge the
* This should be Circuit. t This should be October.
crew—which during these transactions he had supported at great expense, and abandoned the Casius to the government of the United States—protesting against the illegality of her arrest.
The undersigned minister is not acquainted with the details of what happened since that time relative to this affair; he only knows that in the month of October last, the circuit court declared itself incompetent, notwithstanding the assertion of the Secretary of State, and quashed all the proceedings. In consequence, the Secretary offered him the Casius; as if after having retained, in contempt of treaties, a state vessel, after having left her to rot in port, the government of the United States were not to answer both for the violation of the treaties, and for the damages the Casius has sustained.
(No. 5.) The Secretary of State, by his publick letter of the 1st November last—in answer to the note of the undersigned minister plenipotentiary of the 6th ofBrumairc last, appears not to have understood either that note or the decree of the executive directory of the 14th Messidor of the 4th year.
This decree does not simply contain the order for seizing English property on board of neutral vessels, and of course on board of American vessels; it orders that the vessels of the Republick shall act towards neutrals in the same manner as neutrals shall suffer the English to treat them.
This decree consequently implies, not only the seizure of enemies property on board of American vessels, against the principle free ships make free goods, a principle the American government abandoned after having recognised it by acceding to the declaration of Russia in 1780—not only the seizure of articles classed as contraband in the treaty concluded between Lord Grenville and Mr. Jay, and declared innocent merchandises by the treaty of 1778, but also reprisals for all vexations, contrary to the law of nations and to the treaties, which the Americans shall endure on the part of the English, without an efficacious opposition.
The Secretary of State has been pleased to observe, that France and the United States, by a reciprocal treaty,
•This stioutd be October.
had consecrated the principle, free ships make free goods, and diminished the list of articles seizable as contraband. Upon this basis he built reasoning which he might have spared if he had been pleased to remember the 2d article of the treaty of 1778. The Secretary has also been pleased to reply in part to the note of the undersigned minister plenipotentiary dated 6th Brumaire relative to the press exercised on the American sailors, that the federal government were not to give an account to any nation of the measures it takes for the protection of its citizens; if such an answer required a reply, the undersigned minister plenipotentiary would request the Secretary of State to observe, that the object of his note of 6 Brumaire, and of his letters of the 9 and 19 Germinal last, which are there referred to, was not at all to know the steps taken by the federal government, for the protection of its citizens; but the measures pursued by it for preventing its citizens from increasing the maritime forces of the enemies of the French Republick, its ally. It is evident that in this case the federal government should give an account, and that the French Republick would have a right to regard its silence as a tacit consent to that measure, and a real hostility. The undersigned minister plenipotentiary can no longer be suspected of having demanded of the government of the United States, explanations foreign to the relations which exist between that government and the French Republick, of having had the intention to wound the federal government, in his letter of 7 Windemiaire in the 4th year, since after the passage cited by the Secretary of State, is the following paragraph; “But I am convinced it will not be so. The American government is too much attached to the laws of an exact neutrality, it knows too well that the cause of free people is linked to that of France, to allow to be usurped by the English a right injurious to the interest of the Republick.” “It is in this conviction that I have written you this letter, persuaded that it is perhaps superfluous to address to you these reclamations. I do not doubt but the American government will prove to all Europe the intention it has of maintaining the most exact neutrality with regard to the belligerent powers, that it will oblige England to violate no longer the rights of nations, and that it will not