ized by France as a public or private ship of war, all the officers and crew are to be detained as prisoners, at the expense of the United Statesexcept such as are citizens of the United States, or of some one of them, who may be tried for treason in adhering to, and aiding, the enemies of the United States. After mature consideration of the decrees of France, and of the laws of the United States, and the conduct of each nation to the other, it is my opinion that the two nations are in a state of maritime war; and, consequently, that the citizens of the United States who aid and adhere to France in acts of hostility on the high sea, against the United States and their fellow-citizens, are guilty of treason. Perhaps this opinion may be found erroneous; if so, such citizens, if acquitted of treason, may be indicted for felony, under the 9th section of the act passed 30th April, 1790, entitled "An act for the punishment of certain crimes against the United States."

I conceive the law of Virginia, which requires the examination before a county or corporation court of criminals triable in the State courts, does not apply to criminals triable before the courts of the United States in the Virginia district. Upon this point, reference may be had to the 23d section of the 20th chapter of the acts of Congress of 1789. By this section, an offender against the United States is, agreeably to the usual mode of process against offenders in such State where he is found, to be arrested and imprisoned, or bailed, as the case may be, for trial before the court of the United States having cognizance of the offence. The arrest is to be agreeably to the usual mode of process in the State; the imprisonment or bailment is also to be agreeably to the usual mode of process in the State; but the trial is to be only before the court of the United States having cognizance of the offence. The examination preparatory to the trial is to be before a magistrate, who is to send to the clerk's office of the court copies of the process and the recognizances of the witnesses, for their appearance to testify. To admit a different construction of this section, would be to admit a different mode of trial of the same offence against the United States, in their courts, as it might happen to be cognizable in one district or in another; for the examination before a county or corporation court, according to the law of Virginia, is a species of trial that gives a chance of acquittal unknown in other States. Besides, the text of the Virginia law seems to be confined to offenders amenable to the courts of the State. Against the ship and cargo, proceedings are to be had before the district court of the United States in Virginia, according to the laws of Congress, and the usage and practice of courts of admiralty in prize causes.

It will afford me satisfaction to receive from you a statement of facts relative to this ship, and your ideas on the matters of law which have been the subject of these remarks.

I am, &c., &c.,

TO THOMAS NELSON, Esq.,

District Attorney U. S., Yorktown, Virginia.

CHARLES LEE.

ALEXANDRIA, September 22, 1798.

SIR: It was my intention to have sent from hence the enclosed letter to Mr. Nelson; but, on reflection, I have thought it best to refer to your

consideration whether it ought to be sent without the direction of the President, as it contains an important opinion upon the question of war, which perhaps may not be approved. You will do with the letter as in your discretion may seem best.

Perhaps the Nigre may turn out to be neither a French armed ship nor a pirate, but an armed British ship, that has done nothing contrary to the laws of nations or treaties: if so, she will be acquitted, with or without costs and damages, as the court shall adjudge.

I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.

Submitted to the Attorney General by the Secretary of State.

CASE FOR OPINION.

Sundry American vessels have lately been captured in the West Indies, by British cruisers, and carried into Cape Nicholas Mole, in the island of St. Domingo; at which places these American ships, with their cargoes, have been libelled and condemned, in a court styling itself a British court of vice-admiralty, over which Richard Combauld, Esquire, presided as judge. In this court, where the captures were made by king's ships, the proceedings have been had in his Majesty's name; and in all cases they have been carried conformably to the usual mode of proceeding in the vice-admiralty courts in the West Indies. Upon condemnation taking place, the ships and cargoes have been ordered to be delivered up to the captors, upon their giving bail in the amount or value thereof to answer the appeals of the claimants. But in what manner or form the bonds have been taken does not appear, no copies being transmitted; neither is it known, in the event of the evacuation of Cape Nicholas Mole by the British, in what custody or preservation they may be.

Several processes in cases thus circumstanced have been transmitted by the Insurance Company of North America, and by the Pennsylvania Insurance Company, to their agent in London, for the purpose of prosecuting appeals in the names of the American owners from the sentence of condemnation so passed at St. Domingo.

But, in consequence of some intercourse which has taken place between the British Government and Mr. King, the minister of the United States of America, wherein it is understood that the British Government declared that there had not been any vice-admiralty court at Saint Domingo legally constituted, it hath become doubtful to the agents of the said insurance company whether the proper mode of seeking redress from such condemnation will be by the usual course of appeal to the Lords Commissioners in prize causes.

You are therefore requested to give your opinion what steps are most advisable to be pursued for obtaining redress on behalf of the American owners of ships and cargoes thus condemned; and whether any distinction arises between causes where commanders of his Majesty's ships make the seizure, and where privateers are the captors.

OPINION.

There being no British vice-admiralty court legally constituted in the island of St. Domingo, the proceedings which have been had in this,

and other causes at Cape Nicholas Mole, are, I apprehend, to be consid-. ered as mere nullities, upon which no proceedings in the way of appeal can be founded; and this, without distinction whether the captures were made by king's ships or privateers. The proper mode of obtaining redress on behalf of the neutral proprietors, is by giving in claims in the high court of admiralty, and taking out a monition against the captors to proceed to adjudication in that court. Under these proceedings full redress may be obtained.

COMMONS, October 3, 1798.

J. NICHOLL.

PHILADELPHIA, January 10, 1799.

SIR: I concur in the opinion expressed by Dr. Nicholl upon the case submitted to him. I will add, that the right of property remains in the original owners at this time; so that, if the vessel can be found in the United States, it may be recovered by action of detinue, or its value by an action of trover, in a common-law court. But, to sustain such actions, there must be formal and sufficient documents obtained from Great Britain to prove that the vice-admiralty court held by R. Combauld was without authority; which documents are to be obtained through our minister at London. What they should be, or from whence they should emanate, I am at a loss to say; but I will suggest that a note of the minister of foreign affairs, and a certificate from the high court of admiralty to this effect, would probably be sufficient.

For ordinary injuries done by the subjects of one nation to those of another, all that is usual, or to be expected, is, that the ordinary tribunals competent to afford relief should be open to the injured party, to which he should apply; and in such ordinary cases the nation is not deemed responsible, even although the redress sought should not be obtained. But this rule does not appear to be applicable to the extraordinary injuries done to the citizens of the United States under the authority of the British governor and commander-in-chief at St. Domingo, and by means of the commanders of the British public ships of war.

It is represented that General Simcoe, the British governor and commander-in-chief at St. Domingo, erected and authorized the vice-admiralty court held by Combauld, first at Port-au-Prince, and afterwards at Cape Nicholas Mole; that this court did in fact openly and continually exercise admiralty jurisdiction there for nearly two years,-(during which period many condemnations were made of vessels and cargoes sent there for trial by the public ships of war belonging to his Britannic Majesty, who certainly ought to have sent them to some lawful court of adjudication;) and that the amount of condemnations of American ships and cargoes by this court (if it is to be so called) has been computed to exceed one million and a half of dollars.

Thus these losses, if the representation be true, are chargeable to the irregular, unwarranted, and improper conduct of the fleets and armies of his Britannic Majesty; and compensation for them may be claimed for the American citizens by the Government of the United States, from the Government of Great Britain, upon the same principles which included, in the

7th article of the treaty of amity, the captures under Admiral Jervis's orders of blockade.

Though the proceedings of this vice-admiralty court are admitted to be without authority, yet they cannot be said to have been without color of authority from the British nation; and on this principle it becomes the justice and honor of the nation to make adequate satisfaction. Surely it was in the power of his Britannic Majesty to have suppressed these unwarranted proceedings; and that they were not suppressed soon after they were notified, furnishes a subject of just complaint to the United States, which ought not to be passed in silence. Under such circumstances, it is not reasonable merely to say to the American citizens who have been injured that the British courts are open to hear your complaints against the individuals who did the injuries, and to do you justice; for perhaps those individuals may not now be found, or, if found, may be incompetent to satisfy such judicial sentences as shall be obtained. I believe it to be the duty of the President to endeavor to obtain, by negotiation and treaty, compensation for these injuries; but to what point those endeavors are to go, I shall not venture to say.

I have the honor, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.

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 ship of 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 it 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 twenty-third article of the treaty of London, that "the ships of war of each of the contracting parties shall at all times be hospitably received in the ports of the other; their officers and crews 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 enjoyed 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 seem 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 stipulate 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 of war, 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