certain circumstances. Now, should Mr. Van Berckel's servant not be a citizen or inhabitant of the United States, who may have contracted the debt prior to his entering into the minister's service, the execution may be void, although the officer may be exempt from punishment. But I should doubt, upon the whole, whether, if the servant has not been regis. tered, it might not be as well to apprize the minister of the law, and to pursue with vigor any like aggression which shall be made after the servants shall have been enrolled in your office. Perhaps it might be expedient to publish in the newspapers the 25th, 26th, and 27th sections of the law.

I have the honor, sir, to be your most obedient servant,

To the SECRETARY OF STATE.

EDM. RANDOLPH.

ABDUCTION AND RESTITUTION OF SLAVES.

The bringing away of slaves from Martinique, the property of residents there, may be piracy, and, depending upon the precise place of its commission, may only be an offence against the municipal laws.

The government may instruct the attorney for the district of Georgia to prosecute the offenders riminaliter, as far as the law will permit, having in view the restitution of the negroes to their true owner; and if that fail to restore them, to issue civil process with the approbation of the owner or agent.

PHILADELPHIA, November 1, 1792.

SIR: The Attorney General of the United States has the honor of re plying to the communication of the Secretary of State, of the 28th ultimo, concerning the proceedings of Captain Hickman, in bringing away from Martinique certain slaves, the property of residents there. Judg ing from the documents which have been forwarded to him, the Attorney General would not hesitate to pronounce that a theft has been committed; but the fact may turn out otherwise upon confronting testimony. In like manner, the offence would seem to be a piracy; but it may prove, when its precise place of commission shall be fixed, to be of a mere mu nicipal kind. Under these circumstances the government cannot give, it is presumed, any specific instructions to any officers of the United States, except to the attorney of the district of Georgia, as follows: First, to prosecute the culprits criminaliter, as far as the law will permit, constantly having in view the restitution of the negroes to their true owner; and, secondly, if criminal process should be insufficient to procure such restitution, to institute the necessary civil process for the like purpose, with the approbation of the owners or their agent. The last remark is made in order to impose the expense of a suit upon the individuals interested, rather than to assume any responsibility on the United States. I have the honor to be, sir, your obedient servant, EDM. RANDOLPH.

To the SECRETARY OF STATE.

REPRISALS.

The laws of nations do not allow reprisals except in cases of violent injuries directed and supported by the State, and the denial of justice by all the tribunals and the prince.

Where error is apparent on the record of a judgment for unjustifiable seizure in a State court, a writ of error may be applied for in behalf of the aggrieved party.

PHILADELPHIA, April 12, 1793.

SIR: You will perceive, from the two letters of which I enclose copies, that the subject of Mr. Pagan has been for some time in my view. The former of those letters being intended for you, and containing a summary of facts, I determined to show it to Mr. Tilghman, who was Pagan's counsel, before it was sent to you, in order that he might correct any misstatement. This produced the latter letter from him to me; and I have thought it more advisable to forward both of them to you, even in the unfinished state of my own, than to reduce the case into a form which might be supposed to be less accurate. As I do not discover an essential difference between Mr. Tilghman and myself, I shall not discuss any seeming variance, but proceed upon his ideas. It is too obvious to require a diffusive exposition that the application for a writ of error was not only prudent, but a duty in Pagan. To this Mr. Tilghman explicitly assents, when he says that he was perfectly "satisfied of the prudence of applying for the writ of error, as Pagan could not complain of a defect of justice until he had tried the writ of error, and found that mode ineffectual." This remark becomes the more important, as it manifests that the process was not suggested as an expedient for shifting any burden from the government. Indeed, I may with truth add, that the proceedings, taken collectively, appeared to me to present a sufficient intimation of the main question to serve as a ground of decision. However, take the case under either aspect-as excluding the consideration of the main question by an omission in the pleadings and record, or as exhibiting it fully to the cognizance of the court-it never was pretended that a writ of error ought to have been granted, unless the matter was apparent on the record. Whose office was it to make it thus apparent? Of the attorney who managed the pleadings. If, therefore, he has failed to do so, we may presume that he considered the ground untenable, or was guilty of inattention. Either presumption would be fatal to a citizen of the United States; and the condition of a foreigner cannot create a new measure in the administration of justice. It is, moreover, certain that those who have been consulted on Pagan's behalf, as well as others, have seriously doubted whether a cause which has been pursued to the extent which his had reached before the commencement of our new government, was susceptible of federal relief.

The last observation opens the inquiry, what remedy ought the Supreme Court of the United States to have administered even if the question had been fairly before them? My opinion is, that the very merits are against Mr. Pagan. In America, the construction of the armistice has been almost universally to compute the places, within which different times were to prevail, by latitude only. Am I misinformed that such an interpretation has been pressed by our ministers, and not denied by those of London? A second mode has been adopted, by describing a circle, and thereby comprehending longitude as well as latitude. Now, let either rule be adopted, and the position of the capture in this case will be adverse to Pagan's pretensions.

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 dubiâ, 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 subjects 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 States.

That, in the whole of its descent to the Atlantic ocean, it is covered on each side by the territory of the United States.

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

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 restitution. EDM. RANDOLPH.

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 to think it would be best to meet the question, and justify the conduct of the defendants. I have the honor, &c.,

To the SECRETARY of State.

WM. BRADFORD.

EVIDENCE OF CAPTURE.

Captures must be determined upon competent evidence, and no rules for determining the competency of evidence are more proper than those which prevail in courts of admiralty, and which being founded on general and universal principles, are essential to a safe and pure administration of justice.

The master 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