The offence in question being committed out of the territories of the United States, cannot be noticed by our courts; the offenders must be dealt with abroad, and, after proclamation by the President, will have forfeited all protection from the American government.

JULY 6, 1795.

THE Attorney General having perused and considered the memorial of Zachary Macauly, the acting Governor of the Sierra Leone Company's colony of Sierra Leone, on the coast of Africa, and of John Tilly, the agent of Messrs. John and Alexander Anderson, proprietors of Bauce island, addressed to Lord Grenville, and enclosed in the communication from his Britannic Majesty's minister plenipotentiary to the Secretary of State, has now the honor of reporting his opinion thereon.

It is stated by the memorialists that certain American citizens trading to the coast of Africa, on the 28th of September last, voluntarily joined, conducted, aided, and abetted a French fleet in attacking the settlement, and plundering or destroying the property of British subjects on that

coast.

The Attorney General concurs in the opinions which have heretofore been given on this subject. He conceives that acts of hostility committed by American citizens against such as are in amity with us, being in violation of a treaty, and against the public peace, are offences against the United States, so far as they were committed within the territory or jurisdiction thereof; and, as such, are punishable by indictment in the district or circuit courts. It has been heretofore declared by the judges of the cir cuit court to be their joint and unanimous opinion, that, the United States being in a state of neutrality relative to the present war, such acts of hostility committed by a citizen are an offence against this country, and punishable by the laws of this country.

So far, therefore, as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States. But crimes committed on the high seas are within the jurisdiction of the district and circuit courts of the United States; and, so far as the offence was committed thereon, I am inclined to think that it may be legally prosecuted in either of those courts, in any district wherein the offenders may be found. But some doubt rests on this point, in consequence of the terms in which the "Act in addition to the act for the punishment of certain crimes against the United States" is expressed. But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States; and as such a suit may be maintained by evidence taken at a distance, on a commission issued for that purpose, the difficulty of obtaining redress would not be so great as in a criminal prosecution, where viva voce testimony alone can be received as legal proof.

The Attorney General begs leave further to remark, that this offence being committed out of the territories and waters of the United States, the government does not seem bound to do more than has already been done by the President, who, by his proclamation of the 22d of April, 1793, warned all citizens of the United States against all such proceedings; declaring that all those who should render themselves liable to punish

ment under the laws of nations, by committing, aiding, or abetting hostilities against any of the said parties, would not receive the protection of the United States against such punishment; and that he had given instructions to those officers to whom it belongs to cause proceedings to be instituted against all persons who should, within the cognizance of the courts of the United States, violate the laws of nations with respect to the powers at war, or any of them.

All which is submitted.

To the SECRETARY OF STATE.

WM. BRADFORD.

OPINIONS

OF

CHARLES LEE, OF VIRGINIA:

APPOINTED DECEMBER 10, 1795.

NEUTRALITY.

It is the right of an enemy to purchase goods and instruments of war of a neutral nation, but it may be denied by a law passed; yet, if the reason of its passage were to impede the military operations of either belligerent power, and to favor the other, such conduct would be a breach of neutrality, A citizen of a neutral State who, for hire, serves on a neutral ship employed in contraband commerce with either of the beligerent powers, is not liable to any prosecution for so doing, by the municipal laws of his own State; nor is he punishable personally, though taken in the act, by that belligerent nation to whose detriment the prohibited trade would operate.

PHILADELPHIA, January 20, 1796.

THAT an enemy may come into the territory of a neutral nation, and there purchase and thence remove any article whatsoever, even instruments of war, is a law of nations, long and universally established. Horses are, and for a long time have been, an article of commerce from the United States; and, though they are by certain treaties an article of contraband, as by the treaty with France, yet, according to the above principle, they may be purchased and exported by the enemies of France. To deny a right to either of the belligerent powers to carry on this trade, without denying it to both, would be a departure from that line of perfect neutrality which the United States have invariably observed. It is true, this right may be denied to all nations, by a law to be passed for that pur pose at this time; but, if the reason for passing such a law be to impede the military operations of either belligerent power, and to favor the other, it is manifest that such conduct would be a breach of neutrality; consequently, while the French and the British are equally permitted to pur chase horses, and export them from any of the States, as they heretoforehave been and now are permitted, neither have any just cause of complaint. Indeed, I may add here, that, if the individual citizens of the United States carry on a contraband commerce with either of the bellige rent powers, neither can charge it upon the government of the neutral nation as a departure from neutrality. Forfeiture of the goods and ship, is the penalty annexed to such acts by the law of nations; and if this were not so, it would be in the power of individuals to involve the neu> tral nation in war, against its will.

It is not considered as a duty imposed upon a nation by a state of neu trality to prevent its seamen from employing themselves in contraband trade. Nor are there to be shown any instances where a neutral nation has exercised, or attempted to exercise, its authority in restraining prac tices or employments of this kind; and the reason is, that it would be. found very embarrassing to the executive power, and at the same time

very oppressive to the liberty of the citizen, and generally nugatory. If a citizen of a neutral State, for hire, serves as a mariner on board of a neutral ship employed in contraband commerce with either of the belligerent powers, he is not liable to any prosecution or punishment for so doing, by the municipal laws of his own State; nor is he punishable personally, according to the laws of nations, though taken in the fact, by that bellige rent nation to whose detriment the prohibited trade would operate. In such a case, the contraband merchandise, and the vessel too, (unless excepted by treaty,) may be seized and confiscated; and thus the owner of the property is punished by the loss of it; but the mariner, rendering per sonal service, suffers no penalty or loss whatever-unless, perhaps, a loss of his wages shall ensue from a disappointment in the freight. But it is not prohibited to a neutral vessel to carry provisions to the fleets or armies of either enemy, except to a besieged place, for its relief under exigent circumstances; and, according to this rule, it is lawful for the citizens of the United States to carry in their own vessels flour and other provisions from their own country to the fleets and armies of Britain, as well as France, which are expected at St. Domingo.

Mariners may be said to be citizens of the world; and it is usual for them, of all countries, to serve on board of any merchant ship that will take them into pay; and this practice, from the manner of their liveli hood, seems, for obvious reasons, founded on convenience, and, in many instances, on necessity. A citizen of a neutral nation has a right to render his personal service as a sailor on board of any vessel whatever employed in mere commerce, though owned by either of the belligerent powers, or the subjects or citizens of either. Nothing hostile can be im puted to such conduct, which, consequently, must be deemed consistent with neutrality. If such conduct be lawful, no restrictions can be war ranted tending to interfere with the occupations that individuals may pur sue for their emolument or livelihood. In the acts of Congress passed for the punishment of crimes against the United States, it is observable that mariners are forbidden to serve on board of a foreign ship-of-war, letter of marque, or privateer, but are left at liberty to serve on board a vessel merely commercially engaged. (Laws United States, vol. 3, p. 97.) I have not found any stipulation in any treaty which prohibits such occu pation on board a foreign merchant ship, either in war or peace. If the French government or British government, or any other sovereign power, will, by their agents, purchase ships in the United States, and load them with provisions for the use of their fleets or armies, those ships are to be considered as commercially employed. If they be not attached to the naval or military expeditions, as part thereof, in accompanying the fleet, or closely following the army from place to place, for the purpose of furnishing supplies, there can be no pretext for restraining the American sailors from hiring on board of them, for the purpose of gaining a support in their customary way of occupation. Should a question arise, whether a foreign vessel, carrying supplies of provisions, be attached to an armament or not, it must be decided from the circumstances of each case, which it is impossible to enumerate. It may be noted, that the receiving and obeying orders issued under the authority of the commander of any ex pedition, might be deemed decisive proof of such vessel being attached thereto. If a citizen of a neutral nation were to go on board a merchant vessel of the enemy thus certainly attached to a military enterprise,