But what can be exacted from our government after repeated trials before various jurisdictions, none of which can be charged with any symp. tom of impropriety, and upon a subject which, to say no more, is at least equipoised? Nothing. And I appeal to the British reasoning on the Silesia loan as supporting this sentiment, in the following passages: "The laws of nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, do not allow of reprisals, except in case of violent injuries directed and supported by the State, and justice absolutely denied, in re minime dubid, by all the tribunals, and afterwards by the prince." "Where the judges are left free, and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals. Upon doubtful questions, different men think and judge differently; and all a friend can desire, is, that justice should be as impartially administered to him, as it is to the sub. jects of that prince in whose courts the matter is tried." Under such circumstances, a citizen must acquiesce. So, therefore, must Pagan; against whom even the court of Nova Scotia, within the dominions of his own sovereign, has once decided. There are many smaller points arising from the controversy, which might be relied on. But I pass them over, from a hope that the observations already made will induce you to think, with me, that government is not bound to interpose further in the behalf of Pagan. I have the honor, sir, to be, with respect and esteem, your most obedient servant, To the SECRETARY OF STATE. EDM. RANDOLPH. SEIZURE IN NEUTRAL WATERS. The arrest of the ship Grange within the capes of the Delaware was a seizure in neutral territory, and the attack of an enemy in neutral territory is absolutely unlawful. The neutrality of the Delaware does not depend on any of the various distances claimed in the sea by different nations possessing the neighboring shore, for here the treaty of Paris and the law of nations, together, will perhaps justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon-shot. As the ship Grange has been seized in neutral waters, restitution is the duty arising from the act. PHILADELPHIA, May 14, 1793. SIR: The Attorney General of the United States has the honor of sub. mitting to the Secretary of State his opinion concerning the seizure of the ship Grange. The essential facts are That the river Delaware takes its rise within the limits of the United That, in the whole of its descent to the Atlantic ocean, it is cover on That, from tide-water to the distance of about sixty miles from the Atlantic ocean, it is called the river Delaware. That at this distance from the sea it widens, and assumes the name of the bay of Delaware, which it retains to the mouth. That its mouth is formed by the Capes Henlopen and May; the former belonging to the State of Delaware, in property and jurisdiction; the latter to the State of New Jersey. That the Delaware does not lead from the sea to the dominions of any foreign nation. That, from the establishment of the British provinces on the banks of the Delaware to the American revolution, it was deemed the peculiar navigation of the British empire. That by the treaty of Paris, on the 3d day of September, 1783, his Britannic Majesty relinquished, with the privity of France, the sovereignty of those provinces, as well as of the other provinces and colonies. And that the Grange was arrested in the Delaware, within the capes, before she had reached the sea, after her departure from the port of Philadelphia. It is a principle firm in reason, supported by the civilians, and tacitly approved in the document transmitted by the French minister, that to attack an enemy in a neutral territory is absolutely unlawful. Hence, the inquiry is reduced to this simple form: whether the place of seizure was in the territory of the United States? From a question originating under the foregoing circumstances, is obviously and properly excluded every consideration of a dominion over the sea. The solidity of our neutral right does not depend, in this case, on any of the various distances claimed on that element by different nations possessing the neighboring shore. But if it did, the field would probably be found more extensive and more favorable to our demand than is sup posed by the document above referred to; for the necessary or natural law of nations, (unchanged as it is, in this instance, by any compact or other obligation of the United States,) will, perhaps, when combined with the treaty of Paris in 1783, justify us in attaching to our coasts an extent into the sea beyond the reach of cannon-shot. In like manner is excluded every consideration how far the spot of seizure was capable of being defended by the United States; for although it will not be conceded that this could not be done, yet will it rather ap pear that the mutual rights of the States of New Jersey and Delaware, up to the middle of the river, supersede the necessity of such an investigation. No. The corner stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the sea. The high ocean, in general, it is true, is unsusceptible of becoming property. It is a gift of nature, manifestly destined for the use of all mankind-inexhaustible in its benefits-not admitting metes and bounds. But rivers may be appropriated, because the reverse is their situation: were they open to all the world, they would prove the inlets of perpetual disturbance and discord; would soon be rendered barren by the number of those who would share in their products; and, moreover, they may be defined. river, considered merely as such, is the property of the people through whose lands it flows, or of him under whose jurisdiction that peo. ple is." Grot. b. 2, c. 2, s. 12. "Rivers might be held in property, though neither where they rise, nor where they discharge themselves, be within our territory, but they join to water above and below, or the sea. It is sufficient for us that the larger portion of water (that is, the sides) is shut up in our banks; and that the river, in respect of our land, is itself small and insignificant." Grot. b. 2, c. 3, s. 7. And Barbeyrac, in his note, subjoins, that neither of these is necessary. "Rivers may be the property of whole States." Puff. b. 3, c. 3, s. 4. "To render a thing capable of being appropriated, it is not strictly necessary that we should enclose it, or be able to enclose it within artificial bounds, or such as are different from its own substance; it is sufficient if the compass and extent of it can be any way determined. And therefore Grotius hath given himself a needless trouble, when, to prove rivers capable of property, he useth the argument, that although they are bounded by the land at neither end, but united to the other rivers or the sea, yet it is enough that the greater part of them-that is, their sides-are enclosed." Puff. b. 4, c. 5, s. 3. "When a nation takes possession of a country in order to settle there, it possesses everything included in it, as lands, lakes, rivers, &c." Vattel, b. 1, c. 22, s. 266. To this list might be added Bynkershoeck and Selden. But the dissertation of the former, De Dominio Maris, cannot be quoted in detachment; and the authority of the latter on this head may, in the judgment of some, partake too much of affection for the hypothesis of mare clausum. As Selden, however, sinks in influence on this question, so must Grotius rise, who contended for the mare liberum; and his accurate commentator, Rutherforth, confirms the principles in the following passage: "A nation, by settling upon any tract of land which at the time of such settlement had no other owner, acquires, in respect of all other nations, an exclusive right of full or absolute property, not only in the land, but in the waters likewise that a included within the land, such as rivers, pools, creeks, or bays. The absolute property of a nation, in what it has thus seized upon, is its right of territory." 2 Ruth. b. 2, c. 9, s. 6. Congress, too, have acted on these ideas, when, in their collection laws, they ascribe to a State the rivers wholly within that State. It would seem, however, that the spot of seizure is attempted to be withdrawn from the protection of these respectable authorities, as being in the bay of Delaware, instead of the river Delaware. Who can seriously doubt the indentity of the river and bay of Delaware? How often are different portions of the same stream denominated differently. This is sometimes accidental; sometimes for no other purpose than to assist the intercourse between man and man, by easy distinctions of face. Are not this river and this bay fed by the same springs from the land, and the same tides from the ocean? Are not both doubly flanked by the territory of the United States? Have any local laws, at any time, provided variable arrangements for the river and the bay? Has not the jurisdiction of the contiguous States been exercised equally on both? But suppose that the river was dried up, and the bay alone remained: Grins continues the argument of the 7th section of the 3d chapter of the 2d book, above cited, in the following words: "By this instance it seems to appear that the property and dominion of the sea might belong to him who is in possession of the lands on both sides, though it be open above as a gulf, or above and below as a strait; provided it is not so great a part of the sea, that, when compared with the land on both sides, it cannot be supposed to be some part of them. And now what is lawful to one king or people, may be also lawful to two or three, if they have a mind to take possession of the sea thus enclosed within their lands; for it is in this manner that a river which separates two nations has first been possessed by both, and then divided." "The gulfs and channels, or arms of the sea, are, according to the regu. lar course, supposed to belong to the people with whose lands they are encompassed." Puff. b. 4, c. 5, s. 8. Valin, in b. 5, tit. 1, p. 685, of his commentary on the marine ordonnance of France, virtually acknowledges that particular seas may be appropriated. After reviewing the contest between Grotius and Selden, he says: "S'il [Selden] s'en put donc tenir là, ou plutôt, s'il eut distingué l'ocean des mers particuliers, et même dans l'ocean l'etendue de mer qui doit être censée appartenir aux souverains des côtes qui en sont baigneés, sa victoire eut été complette." These remarks may be enforced by asking, What nation can be injured in its rights by the Delaware being appropriated to the United States? And to what degree may not the United States be injured, on the contrary ground? It communicates with no foreign dominion; no foreign nation has ever before had a community of right in it, as if it were a main sea; under the former and present governments, the exclusive jurisdiction has been asserted. By the very first collection law of the United States, passed in 1789, the county of Cape May, which includes Cape May itself, and all the waters thereof, (therefore within the jurisdiction of the State of New Jersey,) are comprehended in the district of Bridgetown. The whole of the State of Delaware, reaching to Cape Henlopen, is made one district. Nay, unless these positions can be maintained, the bay of Chesapeake, which, in the same law, is so fully assumed to be within the United States, and which, for the length of the Virginia territory, is subject to the process of several counties, to any extent, will become a rendezvous to all the world, without any possible control from the United States. Nor will the evil stop here. It will require but another short link in the process of reasoning to disappropriate the mouths of some of our most important rivers. If, as Vattel inclines to think in the 294th section of his first book, the Romans were free to appropriate the Mediterranean, merely because they secured by one single stroke the immense range of their coast, how much stronger must be the vindication of the United States, should they adopt maxims for prohibiting foreigners from gaining, without permission, access into the heart of their country. The inquiry might be enlarged by a minute discussion of the practice of foreign nations in such circumstances. But I pass it by; because the United States, in the commencement of their career, ought not to be precipitate in declaring their approbation of any usages, (the precise facts concerning which we may not thoroughly understand,) until those usages shall have grown into principles, and are incorporated into the law of nations; and because no usage has ever been accepted which shakes the foregoing principles. The conclusion, then, is, that the Grange has been seized on neutral ground. If this be admitted, the duty arising from the illegal act is EDM. RANDOLPH. restitution. To the SECRETARY OF STATE. OPINIONS OF WILLIAM BRADFORD, OF PENNSYLVANIA: APPOINTED JANUARY 27, 1794. CAPTURE WITHIN THE UNITED STATES. When the decree of a judge raises a presumption against the jurisdiction of the courts of the United States, in cases of capture, it will not be improper for the district attorney to cause the necessary depositions to be taken de bene esse, to be used by the Executive in case the appellant does not prosecute his appeal or the decree be affirmed." Philadelphia, February 8, 1794. SIR: I have paid attention to the letter of the attorney of the United States for the district of New York, enclosed in yours of the 31st ultimo. As the decree of the judge, though not final, raises a presumption against the jurisdiction of the courts of the United States, in cases of capture said to be made within the limits of our territory, I am of opinion that it will not be improper for the district attorney to cause the necessary depositions to be taken de bene esse, to be used by the Executive in case the appellant should not prosecute his appeal, or the decree should be confirmed. It will prevent much trouble of collecting witnesses who may be absent at a future day, and will be a proof of the disposition of the Executive to avoid any unnecessary delay. I will pay attention to the plea filed in the case Carital vs. Clinton, &c., as soon as possible. Were it not too late, (as I presume it is,) there seems to be ground for a plea in abatement, on account of the variance between the declaration and the writ: the one being in case, (as I am informed,) and the other in trespass vi et armis; and the former laying the offence with a simul cum, while the writ is only against G. Clinton and Aquila Giles. But were it still possible to abate the plaintiff's writ, I am inclined think it would be best to meet the question, and justify the conduct of de defendants. I have the honor, &c., To the SECRETARY OF STATE. WM. BRADFORD. EVIDENCE OF CAPTURE. Capres must be determined upon competent evidence, and no rules for determining the compeaty of evidence are more proper than those which prevail in courts of admiralty, and being founded on general and universal principles, are essential to a safe and pure adBination of justice. The mener of a captured vessel, by the usage of admiralty, is a competent witness. PHILADELPHIA, February 12, 1794. SIR: I have the honor to inform you that I have carefully examined the papers which you transmitted to me, for the purpose of reporting |