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into our ports with her prize, the Montagne, nor the Argonaut with her prize l’Esperance, which was equipped there : 6th, That armed men were sent on board of the French ship Favourite, at New York, to search her, (faire la fouille) without saying a word to the consul, who resides there, and without observing the most common respect due to a publick vessel by the law of nations, and stipulated for French vessels iy our treaties: 7th, and lastly, That the violence under which our neutrality labours, required an energetick vigorous re-action, and a solemn reparation, which by giving to the United States all that their honour demanded, would have manifested to the French Republick the good will and intentions of our overnment; that the omission has proceeded from a ń. towards our ancient ally, and that our situation ought not to be changed towards your mortal enemies, to your disadvantage, and in the midst of hostilities, the origin of which is undoubtedly in the independence of America. First, You have cast the imputation on our courts of admiralty into an ambiguous shape. For the first strong assertion of their having always yielded to the importunity of your enemies, is afterwards diminished into “a facility” with which they deem your prizes untenable. Is the denunciation aimed at their head or their heart 2 You admit the “right of our tribunals, or of our government to interpose” in captures within our jurisdictional line, or by cruisers originally armed or increased in their armaments in our o Their judgment must be exercised; and they may have erred; but this no man can pronounce positively, until every circumstance shall be laid before him; and I again pledge myself to discuss the cases when you shall enable mely naming them, to institute the proper inquiries—What if they have erred 2 When a party thinks himself aggrieved by the sentence of an inferior court, he may appeal to the superior courts of review. If no appeal be offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive. If an appeal be admitted, and the judges in the last resort give sentence according to their conscience, though it should be erroneous; yet as “in doubtful questions different men think and judge differently, all that a friend can desire, is, »
that justice should be as impartially administered to him, as it is to the people of our own country."
A defect of integrity in our judges will not be vindicated when it shall be once ascertained; and if such a blot defiles the records of the American forum, by detecting it you will deserve the tribute of being instrumental to the saving of our national honour. It is with an elevated pride, however, that we challenge the very possibility of this disgrace; and disbelieve, that political predilections have ever transpired in any of their decrees.
Second, The district court of South Carolina, and the circuit court held for the United States in that state, have both condemned Talbot's prize. But she was condemned, not because the commission, delivered by the governour of Gaudaloupe, was invalid in itself; but because he, "having armed his vessel, being an American bottom in an American port, proceeded thence to Gaudaloupe for the express purpose of changing the property, and applying lor a commission, obtained the commission within two days after the sale of the vessel, and under colour of that commission made the prize." The authority of the governour to grant commissions was not denied—the effect of it upon an American vessel, armed in an American port, for the express purpose of cruising under it, was only repelled. It is true, that a final decision has not yet taken place; the reason of which is, that the captors, having already been defeated in two courts, arc resolved to try the chance of the supreme court of the United States. Not having access to the proceedings in this case, I cannot undertake for any facts, which they may contain; but 1 have been informed from a respectable quarter, that, notwithstanding the apparent sale of the vessel, the prizes which should be made by her, were principally, if not altogether, to be the property of the American citizens, who were her owners, when she sailed for Gaudaloupe.
Third, That a difference of opinion has prevailed at Jfew York and Charleston as to the prizes of le Citoyen de Marseilles, is at least an evidence, that the interruption of their sale was not the consequence of a governmental concert. It may be easily accounted for by supposing, as the truth is, that the culpability of that privateer was unknown at New York, and has been proved at Charleston.
Mr. Dallas, the Secretary of Pennsylvania, wrote on the Vol. Ii. 44
24th January, 1794, in the name of the governour of that
state to the Secretary of War, requesting to be informed, whether the opening of five port holes on each side of that vessel for the mounting of guns, could be deemed an augmentation of " her military equipments." The next day the Secretary at War transmitted to the governour, the decision of the President, as follows, "I have received a letter from the secretary of the commonwealth of Pennsylvania, dated the 24th instant, in which it is stated, that an application has been made to you to open five port holes on each side of the French vessel, called the Citizen of Marseilles, and requesting the opinion of the Executive of the United States, whether under the circumstances of the case, the proposed alteration could be deemed an augmentation of her military equipments."
"This letter, sir, has been submitted to the President of the United States, who has directed me to inform you that the said port holes having been closed previously to the arrival of the said vessel in this port, that the opening of them, in order to mount cannon therein would in his judgment be as much an augmentation of the force of the said vessel as if the port holes were now to be cut for the first time, and that the measure, therefore, is to be prevented."
"It is to be remembered that the same principle operated in the decision of the President in July last, relatively to the British letter of marque, ship Jane, whose force was reduced to the same situation it was at the time of her arrival, by closing her new port holes, dismounting the additional cannon, and destroying or relanding her new gun carriages before she was permitted to leave the port."
Notwithstanding this prohibition she was represented in October, 1794, as having increased her armament; but the officers of the customs uninfluenced by the rage which has been ascribed to them against French cruisers, reported in her favour. How greatly therefore it must astonish you to learn, as has been represented to me, that after these visits she took in several guns in the river Delaware; that this has appeared to the satisfaction of a district court; and that a writ of errour is now depending upon this point before the circuit court? The arrest, therefore, of her prizes comes within your own acknowledgment, that the tribunals of the United States "have a right to interpose" in cases of an augmentation of the armament of capturing vessels in our ports.
Fourth, The measures, chosen at first by the government for enforcing its rules, were through the agency of its own executive officers, and those of the states. Their impartiality will be seen in the suppression of British as well as French armaments in our ports; and in your wish that they had continued to be used, as they were in the year 1793, in relation to the prizes, which were questioned.
But it will strike you, sir, upon reflection, that although the Executive was at first competent in authority to retain under his special direction prizes, made by vessels, which had been equipped in derogation of our sovereignty, it would have been more expedient to refer them to the courts. Until the law of fifth June, 1794, their jurisdiction could not have been said to be established. Being conferred by law, the President could not withdraw it. Or if he could have withdrawn it, there was no reason to do so. For who are our judges? Men nominated by himself from a confidence in their virtue, wisdom, firmness and disinterestedness : men, approved by the Senate from the same confidence: men, whose forms and habits peculiarly qualify them for nice examinations of evidence and law: men, who judge, not in your phrase according to "localities," but universal law. Undoubtedly, as our citizens may be harassed by legal process, so may foreigners; but, as the protection to our citizens, is in the damages which the courts may award, so will it be extended to foreigners.
That any of the contested prizes remained in the hands of the consuls was originally an act of respectful civility to the French; but no executive instruction could perpetuate it against the will of the judiciary. This is expressed in a letter from my department to your predecessor on the 9th of September, 1793, thus: "The intention of the letter of June 25th, having been to permit such vessels to remain in the custody of the consuls, instead of that of a military guard (which in the case of the ship William, appeared to have been disagreeable to you) the indulgence was of course to be understood, as going only to cases where the Executive might take or keep possession with a military guard, and not to interfere with the authority of the courts of justice, in any case wherein they should undertake to act. My letter of June 29tb, accordingly, in the same case of the ship William, informed you, that no power in this country could take a vessel out of the custody of the courts, and that it was only because they decided not to take cognizance of that case, that it resulted to the Executive to interfere in it. Consequently this alone put it in their power to leave the vessel in the hands of the consul. The courts of justice exercise the sovereignty of this country, in judiciary matters, are supreme in these, and liable neither to control nor opposition from any other branch of the government." Hence this temporary and gratuitous permission, is not to be considered as an " ancient regulation fallen into disuse."
As to the bond, which you requested, my letter of the 22d of October, 1794, has told you that the Executive could not dictate it to the judiciary. Nor was it necessary, since the damages, which might be adjudged to the captors, are always sufficiently secure under the usages of the courts. The instruction, however, to the governours also on the 22d of October, 1794, render a double recourse both to the Executive and judiciary not easily practicable.
The previous inquiry by the Executive which you have suggested, could only contribute to delay. For, if the President were even to decide, that a prize ought not to be prosecuted in our courts, the decision would be treated as an intrusion by those courts, and the judicial proceedings would go on notwithstanding. So speak the constitution and the law.
I have never entertained any other "theory" of our admiralty courts being uncontrollable, than this; that they are entirely independent of Executive mandates: that their decrees are not to be questioned by foreign nations within the principles, which I have quoted under the first division of this letter: and that the treaty with France checks them in regard to prizes, only after it has been established, that what is claimed as a prize, is a prize, and not plunder from our own citizens, or other neutrals. Permit me here to observe, that you have misconceived me, when you suppose that " all the armed vessels of your nation, which have brought prizes into the United States" are viewed by me as pirates: very far was this aspersion from my intention. Be pleased to revise my expression. If you shall be satisfied, that from haste or other cause you