in breach of it, and to restore property taken by force within its limits. Were the armed veffel of any nation to cut away one of our own from the wharves of Philadelphia, and to choose to call it a prize, would this exclude us from the right of redreffing the wrong? Were it the veffel of another nation, are we not equally bound to protect it while within our limits? Were it seized in any other waters or on the fhores of the United States, the right of redreffing it is still the fame: and humbled indeed would be our condition, were we obliged to depend for that on the will of a foreign conful, or on any negotiation with diplomatic agents. Accordingly this right of protection within its waters, and to a reafonable diftance on its coafts, has been acknowledged by every nation, and denied io none; and if the property feized be yet within their power, it is their right and duty to redrefs the wrong themfelves.

"France herfelf has afferted the right in herfelf, and recognised it in us, in the 6th article of our treaty, where we mutually ftipulate that we will, by all the means in our power (not by negotiation), protect and defend each other's veffels and effects in our ports or roads, or on the feas near our countries, and recover and reftore the fame to the right owners. The United Netherlands, Pruffia, and Sweden, have recognised it alfo in treaties with us; and indeed it is a standing formule inserted in almost all the treaties of all nations, and proving the principle to be acknowledged by all nations."

In the letter of Mr. Randolph to Mr. Fauchet, already cited,' that gentleman refumes this fubject, and Mr. Fauchet in answer fays, "The admiralty courts have always ceded to the entreaties of our enemies for their intervention in prize caufes: in truth, frequently and almost constantly, by ufing the double plea of which you spoke to me, that is to fay, by arguing either of seizure within the jurifdiction line of the United States, or of armament or augmentation of armament of the capturing veffels in their ports. On this fubject, Sir, you requeft me to fpecify a circum-ftance where a prize was arrested, which did not come under that denomination; and you take the trouble to establish, that they have a right to intervene in every cafe that can be brought under thofe heads. In the first place, Sir, I never have, at least to my recollection, contefted the right of your courts, or of the government, to interfere in matters of the nature of those you mention."

It would feem to be incontestable, that the principle afferted by the United States, which indeed is an unquestionable principle, has been admitted in its utmost latitude by France. It is believed that in the execution of this principle, the government and tribunals have only been guided by a fenfe of duty and the obligations of justice. If in any cafe that can be felected, wrong has uninten3 F 2

tionally

tionally been committed, that wrong has grown inevitably out of the fituation of the United States, and of the conduct of perfons they have been unable to control, and will with readiness be corrected.

2dly. "That against the textual fenfe of the treaty, the govern ment has permitted the fhips of the enemy to come to in their ports, after having captured property or veffels belonging to French citizens."

It is to be regretted, that you have not been pleafed to ftate fome particular cafe, if the cafe be founded on a fact, which has manifefted this permiffion; or, if it be founded in principle, the precise difference between the conftruction given by the Prefident of the United States to the article of the treaty of the 6th of February 1778, relative to this fubject, and that for which you may contend. For the want of fuch a guide, the undersigned may difcufs unneceffary points, without giving you complete fatisfaction on that which in your mind may conftitute the real difficulty.

The 17th article is in these words: "It fhall be lawful for the fhips of war of either party, and privateers, freely to carry whitherfoever they pleafe, the fhips and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty, or other judges; nor thall fuch prizes be arrested or feized when they come to or enter the ports of either party; nor fhall the fearchers or other officers of thofe places fearch the fame, or make examination concerning the lawfulness of fuch prizes; but they may hoist fail at any time, and depart, and carry their prizes to the places expreffed in their commiffions, which the commanders of fuch fhips of war fhall be obliged to fhow: on the contrary, no fhelter or refuge fhall be given in their ports to fuch as fhall have made prize of the fubjects, people, or property of either of the parties; but if fuch fhall come in, being forced by ftrefs of weather or the dangers of the fea, all proper means fhall be vigorously used that they go out and retire from thence as foon as poffible." Do you contend, Citizen Minister, that this article ought to be rigidly conftrued according to its letter? If you do, it. becomes necellary to afcertain what are the difabilities to which its letter really fubjects the veffels belonging to the enemies of France. They are, ift, That no fhelter or refuge fhall be given in the ports of the United States to the fhips of war or privateers belonging to the enemy, which fhall have made prize of the fubjects, people, or property of France.-2dly, That if fuch fhips of war or privateers fhall come in, being forced by ftrefs of weather or the danger of the feas, all proper means fhall be vigorously used that they go out and retire from thence as foon as poffible.

The letter of the article does not exclude generally the fhips of war belonging to the enemy, but thofe only which have made

prize of the fubjects, people, or property of France. That the veffel fhall have made a prize is a part, and an effential part, of the defcription. Whether the veffel be or be not within this defcription is a fact, the afcertainment of which must precede the meafures to be taken in confequence of that fact. When the fact shall have been ascertained, the letter of the article denies refuge or fhelter to the fhip of war or privateer, but not to the prize which may have been made. You well know, Citizen Minifter, that if the letter of the article is to be fet up against its fpirit, when the former is moft favourable to the views of France, the letter mult ftill be adhered to, though it fhould counteract thofe views. The fituation of the United States bound them to obferve, between. the belligerent powers, an exact neutrality, in all cafes where their previous treaties had not ftipulated advantages or impofed difabilities.

They could not refufe to one belligerent power thofe rights of ordinary hofpitality which were enjoyed by others, which the common ufages of nations permit, and which were fordidden by no particular treaty. Such refufal would have been manifeftly parrial, and a plain departure from that neutral pofition in which the United States found themselves, and which good faith, integrity, and their best interefts impelled them religiously to maintain. Thus circumftanced, it was the duty of the government to give its true construction to a treaty granting advantages to one of the belligerent powers, and impofing difabilities on another. In fearching for this true conftruction, its best judgment ought to be exercifed, and the dictates of that judgment ought to be obeyed. The United States have done fo: they have refufed shelter in their ports to the prizes made on the French republic, or to the fhips of war belonging to the enemy and accompanying fuch prizes.

They have permitted fhips of war, not bringing prizes with them, to remain in their ports, without inftituting tribunals to inquire whether fuch thips have at any time captured French citi zens or French property. The reafoning on which this decifion was founded, and which appears to the underfigned to have been conclufive, will not now be repeated. It has been detailed in feveral letters from the fecretary of state of the United States, to the minister of France in Philadelphia. The underfigned will only observe, that the construction supposed to be juft, and for that reafon actually put upon the article, is believed to be more favourable than the literal conftruction to the interefts of France.

Ships of war which have made prizes on this republic, if they enter the ports of the United States without fuch prizes, ought indeed, under the letter of the article, to be ordered to depart as foon as the fact can have been afcertained; but the prizes them. felves are permitted to remain in fafety. By the actual construction, a fhip of war entering without a prize is permitted to remain, but

all

all fhelter is refufed to a fhip of war which is accompanied by a prize, and alfo to the prize itself. It would feldom happen that a fhip of war, not driven in by ftrefs of weather, or the danger of the feas, would wish to continue in port longer than the time which would unavoidably be confumed in afcertaining the fact of her having made a prize, but it must often happen that a prize now excluded from the ports of the United States, would find shelter in them if the literal conftruction of the treaty fhould be adopted.

This expofition given by the United States to this article was made known in 1793-France has never fignified a wish that the literal conftruction throughout fhould be purfued. This ftrengthens the opinion entertained by the undersigned, that the rule on this fubject, fo early established by the American government, is confidered by the republic as more favourable to its interests than a rule conforming entirely to the letter of the article.

3dly. "The government of the United States has ordered the arreft of a national corvette* anchored in the port of Philadel phia, and the arrestation has been extended to the captain commandant."

The undersigned beg leave to ftate the cafe which is the foundation of this complaint. In the ftatement itfelf they trust will be found a complete juftification of the conduct of the United States.

The Caflius, under the name of "les Jumeaux," was fitted and armed for a veffel of war in the port of Philadelphia, in violation of a law of the United States. In December 1794, having escaped from the port to defcend the river, orders were given to the militia of the ftate of Delaware to intercept her. The attempt was made, and failed. The crew of les Jumeaux, which was unexpectedly found to be very numerous, refifted the officers who went on board, manned their cannon and brought them to bear on the cutter in which the militia, about forty in number, were embarked. Their force being inadequate to the enterprise, they retired with an intention to return the next day with a reinforcement. They did fo, but les Jumeaux had failed and gone to fea. The agent, Mr. Guenet, by whom les Jumeaux had been fitted out, was tried at the circuit court in Philadelphia, convicted of the offence, and received fentence of fine and imprifoniment.

Les Jumeaux proceeded to St. Domingo; Samuel B. Davis, a citizen of the United States, there took the command of her, with a commiffion from the French government. Davis probably failed from Philadelphia in les Jumeaux, for the purpose of finally taking the command of her. Her name was now changed to

"le Caffius," and on a cruise fhe took a schooner called the William Lindfay, belonging to Meffrs. Yard and Ketland of Philadelphia, Mr. Ketland having purchased an intereft in her after her failing. The fchooner and her cargo were condemned as prize at St. Domingo. In Auguft 1795, Captain Davis, commanding the Caffius, came with her to Philadelphia; fhe was immediately known. Mr. Yard, with a view of obtaining an indemnification for the lofs of the fchooner and her cargo, libelled the Caffius in the District Court, and caufed the captain to be arrested. Soon after, the Supreme Court being in feffion, Captain Davis's counfel applied for and obtained a prohibition to the District Court to stop its proceedings, by which the fuits both against him and le Caffius were defeated. The prohibition was granted on this principle, that the trial of prizes taken without the jurifdiction of the United States, and carried to places within the jurifdiction of France for adjudication, by French veffels, and all questions incidental to it, belong exclufively to the French tribunals; and confequently that its veffels of war, and their officers, are not liable to procefs of our courts, predicated upon fuch capture and fubfequent proceeding within the jurifdiction of the French government.

Meffrs. Yard and Ketland having failed to obtain indemnifica tion in this mode, procured new procefs on the information of Mr. Ketland, to be iffued from the Circuit Court, by which le Caffius was attached as a veffel armed and equipped as a fhip of war in the port of Philadelphia, with intent to cruife and commit hoftilities against nations with whom the United States were at peace, in violation of the act of Congrefs prohibiting fuch armament. Mr. Adet complained that the procefs was taken out of the Circuit Court, becaufe, as he alleged, it had no jurifdiction, and that it would be attended with delay, that court fitting but twice a year; whereas the Diftrict Court, in which it was faid the profecution, if at all permitted, should have been commenced, was always open. Gentlemen of legal knowledge were confulted on the point of jurifdiction in this cafe, and they were decided in their opinion that the Circuit Court had jurifdiction, and exclufively of the District Court. The government of the United States had no part in originating this profecution; and the district attorney, in behalf of the United States, took meafures at each term of the Circuit Court to prepare the caufe for trial, and on a plea calculated to defeat the profecution. At length, in October term 1796, the caufe was brought to an hearing. In the courfe of the argument, the queftion of jurifdiction prefented itfelf. The court adjourned until next day to confider of it, and the following morning difmiffed the fuit.

The underfigned may be permitted to afk, whether in a change of fituation, placing France precifely in the circumstances of

the