« ZurückWeiter »
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 Cassius and her captain. He conceived himself so much the more grounded in this request, as he knew that a like interposition was not new in the annals of the United States; as he knew that the executive poweryof 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 August, 1795 —" As long as the question is in the hands of our "courts, the executive cannot withdraw it from "them."
The undersigned insisting, on the first Fructidor, in the third year (18th August, 1785) expressed himself in these terms: "I do not know, "nor ought I to know, other than the government "of the United States; I cannot under any shape "admit the competency of your tribunals, in the "different circumstances which arise on the exe"cution or inexecution of the treaties. If these "tribunals are the first to violate them, I can only "address myself to the government for reparation
* Simon Nathan versus the common-wealth of Virginia. Dallas's Reports, p. JJ.
"of that violation; otherwise it would be, to ren"der the agents of the French government—the "French government itself, amenable to these tri"bunals; which would be to reverse principles." Informed that the Cassius 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; 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 Cassius then addressed himself to the supreme tribunal, requested the prohibition and obtained it. The districl: 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 in 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 American, stating, that this vessel had been formerly armed in the United States; and consequently requested that she should be confiscated, one moiety to himself, aud the other moiety to the government. The undersigned being uninformed whether this vessel had ever been armed in the ports of the United States, he was also 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 upon him to affirm, that since this vessel has become the property of the French
o 2 Republic, Republic, General Laveaux armed and equipped her wholly 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 Republic; 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. Bur the districSt 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 Republic of obtaining restitution of her vessel, legally, 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, 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 suf"fering a violation of the treaties existing between "the two Republics." The undersigned complain
ed, ed, that the new suit commenced against the Cassius had been carried to an incompetent tribunal, and in the same letter, of 1st August, 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 error," &c.— maintaining the competency of the tribunal.
The undersigned minister, in these circumstances, saw himself obliged to disarm the vessel, to discharge the crew that during these transactions he had supported at great expense, and abandoned the Cassius 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 Cassius; 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 Cassius has sustained.
(No. 5.) The secretary of state, by his public letter of the 1st November last, in answer to the note of the undersigned minister plenipotentiary, of the 6th of Brumaire last, appears not to have understood either that note or the decree pf 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 Republic shall
o 3 act
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 enemy's property on board of American vessels, against the principle free ships make free goods, a principle the American government abandoned after having recognized 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 merchandizes 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, 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 was 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 objecl: of his note of fjth Brumaire, and of his letters of the gth and 19th Germinal last, which are there referred to, was not at all to know the steps taken by the federal government for the pro~ teclion of its citizens; but the measures pursued