« PreviousContinue »
ister of his Britannic Majesty will have the goodness to point out in what manner the executive authority of England could repress the commencing of such suits in that country, I shall cheerfully revise my opinion; the laws in both countries being, on this point, nearly the same. A general proclamation commanding the observance of the treaty, I presume, cannot be pointed at, because that has already issued; and an injunction of the observation of this specific article would be not only unusual, but improper; because it has not yet regularly appeared that it had been violated, and because a proclamation should not attempt to give any interpretation of this article; without which, it could have no greater effect than the gen. eral proclamation already mentioned. I have the honor, &c.,
WM. BRADFORD. To the SECRETARY OF STATE.
Any malicious publication tending to render another ridiculous, or to expose him to public con
tempt and haired, is a libel; and in the case of a foreign public minister the municipal law is strengthened by the law of nations, which secures the minister a peculiar protection, not only from violence, but also from insult.
PHILADELPHIA, September 17, 1794. Sır: Agreeably to your desire, I have considered the three paragraphs published in Greenleaf's New York Journal on the 13th instant, under the head of " communications,” (which are referred to in the letter of Mr. Hammond, with the view of determining whether they can be con. sidered as libellous.
Assuming it as a fact, that, by “ the British Solomon,” in that publica. tion, the British minister is intended to be designated, I am of opinion that those paragraphs are prima facie libellous, and may be made (if in point of prudence it be deemed advisable) the subject of a criminal prose. cution.
It is clear that, even in the case of a citizen, any malicious publication tending to render him ridiculous, or to expose him to public contempt and hatred, or to injure him in his profession, is deemed a libel; and in the case of a foreign public minister, the municipal law is strengthened by the law of nations, which secures the minister a peculiar protection, not only from violence, but also from insult. To represent in the public prints such an officer as a contemptible person, to style him an incendiary jack-in-office, to charge him with deceiving the nation which sends him, and with inspiring another foreign minister with fears of being killed by certain citizens of the United States, is, no doubt, a publica. tion that may be made the subject of legal prosecution.
In giving this opinion, I confine myself strictly to legal considerations, and waive any discussion of the prudence of commencing a prosecution for publications of this kind. I am, &c., &c.,
WM. BRADFORD. To the SECRETARY OF STATE.
A nation ought not to interfere in the causes of its citizens brought before foreign tribunals ex
cept in a case of the refusal of justice or of palpable injustice. The opinion of a British judge directing a plainuff who had been a British subject, but who had taken the oath of allegiance to the government of the United States, to be nonsuited on the ground that the contract which formed the subject-matter of the suit was unlawful between British suljecis, and regarding the plaintiff as such, is founded on the ancient and standing laws of Great Britain, which can be altered only by the legislative power of the nation. When a suitor applies to foreign tribunals for justice, he must submit to the rules by which those tribunals are governed.
PHILADELPHIA, November 4, 1794. Sir: The case of Mr. Green, upon which you request my opinion, appears to be in substance as follows:
Mr. Green being a subject of his Britannic Majesty, emigrated to America after the treaty of peace in 1783, and, by his residence, and taking the requisite oaths, became a citizen of the United States. He afterwards eniered into a contract with certain British merchants established at Ostend, and, on a failure on their part, brought an action against them in the Court of King's Bench in England. On the trial of the cause, the judge directed the plaintiff to be nonsuited; being of opinion that such a contract was unlawful between British subjects, and holding the plaintiff to be such. Mr. Green, conceiving himself to be aggrieved, solicits the interposition of the government to cause justice to be done to him.
I apprehend, sir, that these facts do not authorize any complaint from the United States, or formal demand on the executive authority of Great Britain. It seems to have grown into a rule, “ that a nation ought not to interfere in the causes of its citizens brought before foreign tribunals, excepting in the case of a refusal of justice-palpable and evident injusticeor a violation of rules and forms." In the case stated, the opinion of the judge is founded on the standing and ancient laws of Great Britain, which can be altered only by the legislative power of the nation. The decision could not be otherwise; and when a suitor applies to foreign tribunals for justice, he must of necessity submit to the rules by which those tribunals are governed. How far the difficulties which may arise from the British government strictly enforcing the principle “that a natural-born subject cannot divest himself of his allegiance," miay deserve the attention of government, in case any negotiations for a treaty of commerce should be commenced, is another question, upon which it is not proper I should offer any opinion.
In addition, it may be observed that it is upon a definitive sentence alone that a complaint of injustice can regularly be founded. The opinion of a judge at nisi prius (a nonsuit, voluntarily submitted to by the plaintiff, and no motion for a new trial made) cannot, with propriety, be made the subject of discussion. If such a plaintiff be not satisfied with the justice of the opinion, it is his duty to put the cause in such a situation that its merits may be examined in the court of the last resort.
There are other reasons which oppose themselves to Mr. Green's request; but, having had the honor of conferring with you on this subject a few days ago, I forbear enlarging upon it at present. I have the honor, &c., &c.,
The refusal of a district judge to issue a warrant under the ninth article of the convention be
tween France and the United States, cannot be interfered with by the Supreme Court; the latter having no control over a districi judge exercising legal discretion.
PHILADELPHIA, March 21, 1795. Sır: In conformity to the instructions contained in your letter of the 7th October last, I embraced the earliest opportunity of bringing before the Supreme Court of the United States the question which has arisen in consequence of the interpretation given by the district judge of New York to the ninth article of the convention between France and the United States. As the refusal of the judge (founded on this interpretation) to issue a warrant against Henry Barré could not be re-examined on a writ of error, the only method in which it appeared possible to obtain a revision of it was by applying to the Supreme Court for a mandamus. In order to accelerate the determination, I proposed to Mr. Lawrence that the main question should be fully argued on the motion, without waiting for a return of the writ, which could not be made before the first Monday in August next. He cheerfully concurred in the proposal, and expressed his willingness to submit to the earliest decision that could be obtained. The letters (copies of which I have the honor to enclose) afterwards passed between us.
A motion was accordingly made that a writ of mandamus should be issued, directed to the district judge of the district of New York, commanding him to issue a warrant against Henry Barré. The letters of the minister of France, of the vice-consul, and of the judges, were all laid before the court; and the question arising on them, to wit: “whether any evidence other than the ship's roll or register would be sufficient to au. thorize the judges to issue the warrant which was demanded," was fully discussed; two counsel being heard against the motion. In the course of the argument, some of the judges expressed a doubt whether this was a case in which the court were authorized to issue a randamus, and a further day was given to hear counsel on that point. On a second argu. ment, the court were of opinion that, as the act of Congress had made each district judge (within his district) the competent judge for the purposes expressed in the ninth article of the convention, and as Judge Lawrence had a right to decide the question arising on it, and had decided accord · ingly, the Supreme Court had no authority to interfere with his decision, or control the judge in the excercise of that legal discretion which was vested in him. Therefore, as an interpretation on the article in question could not be given in the regular excercise of their judicial authority, they declined intimating any opinion on it.
I have only further to add, that, until Congress shall authorize a revision of the proceedings of the district judges on this article, or shall declare the judges of the Supreme Court to be competent judges for the purposes expressed in it, I do not perceive any method in which a uniformity
of decision on it can be secured. I have the honor, &c., &c.,
WM. BRADFORD. To the SECRETARY OF STATE.
APPEALS TO SUPREME COURT UNITED STATES.
An appeal lies to the Supreme Court from the decree of a district judge, deciding that he has no jurisdiction over a particular subject. District judges are not ihe exclusive judges of their own jurisdiction: if the Supreme Court be of opinion that they have jurisdiction, they must conform to its judgment.
PHILADELPHIA, May 9, 1795. Sır: I have been honored with your letter of the 7th instant, in which you request my opinion upon the steps which the government of the United States ought to pursue, in consequence of the representations of the minister of the French republic on the subject of the appeals entered from the decree of the district judge of Georgia, in the case of the two Vessels brought in as prizes to a French privateer.
The minister scems to apprehend that there is some inconsistency in allowing an appeal when the judge decides that he has no jurisdiction to determine whether they are lawful prizes or not. But it must be observed that this opinion of the judge arises from his having previously decided on some material facts stated in the libel, and decreed that the French priva. teer was not armed nor equipped in any port of the United States, and was navigated and manned principally by French citizens. But, sir, had it been a simple question of jurisdiction, and had the judge decided that he had no jurisdiction whatsoever of the cause; yet, by the laws of the United States, an appeal from such sentence would have been authorized, because he is not the exclusive judge of his own jurisdiction; and, if the Supreme Court should be of opinion that he has jurisdiction, he must conform to their judgment, whatever his private sentiments may be. Be. sides, where an appeal is lawful, the refusal of the inferior judge to allow it will not prevent the superior court from proceeding on the appeal; and if it be not lawful, and allowed, the superior court, on application to them, will dismiss it.
Being, therefore, of opinion that the proceedings in these causes have been regular, I presume they must wait the usual course of judicial decision; and that any previous interference on the part of the Executive would be improper and unavailing. The papers transmitted to me are herewith returned. I have the honor, &c., &c.,
WM. BRADFORD. To the SECRETARY OF STATE.
BREACH OF NEUTRALITY.
Acts of hostility committed by American citizens against such as are in amity with us, being in violation of a treaty, and against the public peace, are offences against the United States, 80 far as they were committed within territory, or jurisdiction thereof; and, as such, are punishable by indictment in the district or circuit courts. Acts of the kind occurring in a foreign country, however, are not within the cognizance of our courts. The high seas are within the jurisdiction of the district and circuit courts of the United States: wherefore, if such an offence be committed thereon by American citizens, such courts will take notice of it, and the offenders may be legally prosecuted in either of those courts, in any district where the offenders may be found.
The offence in question being committed out of the territories of the United States, cannot be
noticed by our courts; the offenders must be dealt with abroad, and, after proclamation by the President, will have forfeited all protection from the American government.
JULY 6, 1795. The Attorney General having perused and considered the memorial of Zachary Macauly, the acting Governor of the Sierra Leone Company's colony of Sierra Leone, on the coast of Africa, and of John Tilly, the agent of Messrs. John and Alexander Anderson, proprietors of Bance island, addressed to Lord Grenville, and enclosed in the communication from his Britannic Majesty's minister plenipotentiary to the Secretary of State, has now the honor of reporting his opinion thereon.
It is stated by the memorialists that certain American citizens trading to the coast of Africa, on the 28th of September last, voluntarily joined, conducted, aided, and abetted a French fleet in attacking the seitlement, and plundering or destroying the property of British subjects on that coast.
The Attorney General concurs in the opinions which have heretofore been given on this subject. He conceives that acts of hostility committed by American citizens against such as are in amity with us, being in vio. lation of a treaty, and against the public peace, are offences against the United States, so far as they were committed within the territory or juris. diction thereof; and, as such, are punishable by indictment in the district or circuit courts. It has been heretofore declared by ihe judges of the cir. cuit court to be their joint and unanimous opinion, that, the United States being in a state of neutrality relative to the present war, such acts of hostility committed by a citizen are an offence against this country, and pun. ishable by the laws of this country.
So far, therefore, as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States. But crimes committed on the high seas are within the jurisdiction of the district and circuit courts of the United States; and, so far as the offence was committed thereon, I am inclined to think that it may be legally prosecuted in either of those courts, in any district wherein the offenders may be found. But some doubt rests on this point, in consequence of the terms in which the “Act in addition to the act for the punishment of certain crimes against the United States” is expressed. But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States; and as such a suit may be maintained by evidence taken at a distance, on a commission issued for that purpose, the difficulty of obtaining redress would not be so great as in a criminal prosecution, where viva voce testimony alone can be re. ceived as legal proof.
The Attorney General begs leave further to remark, that this offence being committed out of the territories and waters of the United States, the government does not seem bound to do more than has already been done by the President, who, by his proclamation of the 22d of April, 1793, warned all citizens of the United States against all such proceedings; declaring that all those who should render themselves liable to punish