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 are 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It would seem, however, that the spot of seizure is attempted to be withdrawn from the protection of these respectable authorities, as being in the bay of Delaware, instead of the river Delaware.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 space. 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: Grotius 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 enclose within their lands; for it is in this manner that a river which separate 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 en compassed." Puff. b. 4, c. 5, s. 8.

Valin, in b. 5, tit. 1, p. 685, of his commentary on the marine ordon nance of France, virtually acknowledges that particular seas may be ap propriated. 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 qu 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

whether the ship William, captured by the French schooner Citizen Genet, was taken in any place within the territory or protection of the United States.

In deciding upon facts of this kind, some rules must be adopted for ascertaining the competency of the evidence offered; and none appear more proper than those which prevail in the courts of admiralty, and which, being founded on general and universal principles, are essential to a safe and pure administration of justice.

Examining by this test the papers offered in evidence, scarcely any of them will be admissible.

Those offered by the consul of France consist of copies of depositions remaining in the consulate of France, made by Pierre Dalton, Thomas Connolly, and Daniel Osburn, all of them officers on board the Citizen Genet at the time of the capture of the ship.

Waiving, therefore, any objection arising from the want of the original. depositions, these are evidently ex parte affidavits, made by persons directly interested in the event of the decision.

The evidence offered by the English consul (besides the deposition of James Legget) is-1st. A copy of the affidavit of John Whitesides, taken in the district court of Pennsylvania, on the bill filed by Finlay and others against the ship William, &c.; but I consider this as inadmissible, it being ex parte, and taken in a court which disclaims any jurisdiction of the cause. 2d. The depositions of John Williams and Thomas Butler, pilots, of Norfolk, in Virginia, taken ex parte, and certified by a public notary of that place. They are provisionally offered; but, for the cause aforesaid, are not competent evidence.

The only affidavit which remains is that of James Legget, the master of the ship William at the time of her capture. This appears to have been duly taken before B. Morgan, esquire, authorized for that purpose by the attorney of the United States for the district of Pennsylvania; and I am of opinion, that, according to the usage and principles of the court of admiralty, he is a competent witness; but how far his credibility may be af fected by his interest, is open for consideration.

Having, therefore, such slender evidence to proceed upon, I beg leave to request your opinion whether it is expected I should report upon the facts as they appear upon this single affidavit; and also to suggest for your consideration the propriety of communicating to the parties concerned the incompetency of the evidence that is offered, before any further proceedings are had.

I have the honor, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

RESPECT DUE TO CONSULS.

A riot before the house of a foreign consul by a tumultuous assembly, requiring him to give up certain persons supposed to be resident with him, and insulting him with improper language, is an offence not within the act of the 30th of April, 1790, for the punishment of certain crimes against the United States,

A consul is not a public minister, nor entitled to the privilege attached to the person of such an officer. As the law now stands, the offence in question cannot be legally prosecuted in the cour's of the United States. If, however, the grand jury will present the offence in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination.

PHILADELPHIA, February 20, 1794.

SIR: By the correspondence between the British consul at Norfolk and the attorney of the United States for the district of Virginia, which you transmitted to me for consideration, it appears that a question has arisen, whether a riot committed by a number of persons tumultuously assembled before the house of a foreign consul, requiring him to deliver up certain persons supposed to be resident with him, and insulting him with improper language, can be the subject of prosecution in the courts of the United States. I have now the honor to state to you my opinion on that point, agreeably to your request.

Upon the best consideration I can give the subject, I am satisfied that this offence is not within the act of the 30th April, 1790, for the punishment of certain crimes against the United States. The only section which in any degree relates to it, is that which prescribes the punishment "for any infraction of the laws of nations, by offering violence to the person of an ambassador or other public minister:" but this cannot reach the offenc in question, because it is now fully settled that a consul is not a public minister. He is not considered as such by the writers on the law of nations, because he is not in any degree invested with the representative character; and it has, more than once, been judicially determined that he is not entitled to the privileges attached to the person of every public minister. The constitution of the United States also distinguishes between them, where it extends the judicial power "to all cases affecting ambassadors, other public ministers, and consuls." The same distinction is carefully observed in the 13th section of the act establishing the judicial courts of the United States.

An argument in favor of the jurisdiction of these courts over offences of the kind in question, seems to result from the clause in the constitution just referred to; but it may be observed, that these words (sufficiently indefinite in themselves) have received a construction, and seem to be limited to prosecutions "or suits against consuls," and to "suits in which a consul shall be a party." It may be further remarked, that by the constitution the Supreme Court is to have original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls." If this be construed necessarily to include criminal offences against consuls, it would, as the courts are constituted, defeat the provisions of the very next clause, which directs "that all crimes shall be tried in the State where they are committed."

I therefore coincide in opinion with the district attorney, that, as the law now stands, the offence in question cannot be legally prosecuted in the courts of the United States. But, sir, if the party injured is advised or believes that the federal courts are competent to sustain the prosecution, I conceive he ought not to be concluded by my opinion or that of the district attorney. If he desires it, he ought to have access to the grand jury with his witnesses; and if the grand jury will take it upon themselves to present the offence in that court, it will be the duty of the district attorney