II.

THE CASE OF THE CASSIUS.

BUT in the cases of The Cassius and The Santissima Trinidad, the Attorney-General feels confident that the Americans gave proof of an established practice of theirs, to let ships of war go free of molestation, however illegal might be their antecedents in regard to a violation of neutrality. After quoting the dictum of Judge Story's in The Santissima Trinidad, with which we stopped short in our former citation from his speech, and making some comments on it, he goes on to say: "The Santissima Trinidad and the Cassius were both received into the ports of the United States, held not to be amenable to courts of law, and never ordered by the Government to leave any port."

We confess that when we read this statement of the Attorney-General's, we could hardly help suspecting that the London Times had made some mistake in reporting his remarks, particularly so far as concerned the Cassius, and that the reporter had mixed up the two cases referred to, The Cassius and The Santissima Trinidad, in a way which Sir Roundell Palmer had never intended. But on reflection, considering how similar the conduct of the argument was to the turn played upon public ships, which we have before alluded to, and remembering the elaborate completeness of the legal citations and many of the legal deductions, we inclined to the belief that it was a genuine report. Accepting it as such, we would venture now to call Sir Roundell's attention, briefly to the legal and diplomatic history of the Cassius, and to inquire of him respectfully, in conclusion, if he has not too hastily adopted the opinion of some junior as to its bearing.

Here is a brief summary of the early history of this vessel,

as stated in a despatch from Mr. Pickering, American Secretary of State, to Mr. Pinckney, our minister at the French Republic, dated January 16, 1797, and published in 1 American State Papers, p. 564. The despatch is intended for a formal replication to a series of unfriendly complaints on the part of the French minister, Adet, among which the charge of unhandsome treatment of France, in this affair of the Cassius, plays a conspicuous part: 1

"The Cassius, under the name of Les Jumeaux, was fitted and armed for a vessel of war in the port of Philadelphia, in violation of the law of the United States. In December, 1794, having escaped from the port to descend the river, orders were given to the militia of the State of Delaware to intercept her. The attempt was made, and failed. The crew of Les Jumeaux, which was unexpectedly found to be very numerous, resisted 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 so, but Les Jumeaux had sailed and gone to sea. The agent, Mr. Guinet, by whom Les Jumeaux had been fitted out, was tried at the circuit court in Philadelphia, convicted of the offence, and received sentence of fine and imprisonment.” 2

So far the American Secretary of State's narrative of the antecedents of the Cassius.

We next give, in the chronological order of events, another

1 This State paper of Mr. Pickering, constitutes, in our judgment, one of the best productions of Washington's administration, particularly in that part which meets and disposes of the eternal claim, on the part of France, upon American gratitude, for helping the United States to achieve their independence, so perpetually harped upon by the French envoys and statesmen of that day.

2 This important State trial, reported under the name of United States v. Guinet, in Wharton's State Trials, p. 93, and 2 Dall. Rep. p. 321, being the first that arose after the passage of the earliest American Foreign Enlistment Act of 1794, is, of course, very familiar to the Attorney-General, as it was cited and commented on at large, in the Alexandra law-hearing. It may be new to him, however, that the Cassius was the vessel which the defendant in that case was concerned in equipping."

State paper, which probably has never met the eye of Sir Roundell Palmer, but which fell under our notice for the first time the very day that we read his speech, and which helps to throw light upon the character of the American "reception' of this vessel. It is another circular from Mr. Pickering, when Secretary of War, to the Governors of the maritime States (in this case addressed to the Governor of Massachusetts), ordering the seizure of the Cassius, if she should come into any port of the United States to complete her equipment. It will be noticed that the parallelism of this case with the Georgia is complete, in the particular of both vessels intending to arm after they should have got away from their place of equip

It also answers the assertion or suggestion, repeated twice at least, we believe, by Earl Russell, that the Americans. never had to deal with a case where the violators of their neutrality attempted to practice concealment and deception toward them in the manner that the builders of the Alabama had done toward the English. We copy the document, as before, from the Massachusetts State-archives :

Mr. Pickering, Secretary of War, to Governor Samuel Adams.

"DEPARTMENT OF WAR, January 6, 1795.

"SIR,- A ship called Les Jumeaux (or the Twins), Captain Rualt, armed and equipped in the port of Philadelphia as a cruiser, contrary to our neutrality and the laws of the United States, in such case provided, has lately escaped from the Delaware. It appears by the report of the officer employed to seize her, that she sailed from Bombay Hook, the 2d inst. The proof is positive that the ship has been unlawfully fitted out as above mentioned. A description of her and her equipments, so far as is known, is enclosed. As the necessity of concealment prevented her completing her equipments in such manner as to commence an immediate cruise, it is probable, that in order to complete them, she will put into some port of the Chesapeake, or other port in the United States. It is, therefore, the request of the President of the United States, that you will cause the requisite measures to be taken for seizing the above-mentioned ship, with her tackle, furniture, and stores, and also for apprehending the captain, together

with such of his officers and men as have participated with him in violating the laws of the United States.

"I have the honor to be, &c.,

"TIMOTHY PICKERING, Secretary of War.

"His Excellency, SAMUEL ADAMS.”

Getting warning, doubtless, of this circular, the Cassius never ventured into an American harbor, till she had effected such a change in her condition as she thought would put her beyond the danger of interference in case of return. She went to a French port in Saint Domingo (then a French possession), was there regularly transferred by a bill of sale to the French Government [See the French minister's voucher for this, 1 Am. State Papers, pp. 635, 636], and having received a public commission, boldly ventured back to Philadelphia. It is true that the American Government did not thereupon enforce upon her the threats of Mr. Pickering's circular. But they did another thing which showed, as plainly as any seizure would have done, their disposition to enforce the laws of neutrality, as far as lay in their power. Civil suits having been commenced against the Cassius, and her captain arrested, immediately upon her arrival at Philadelphia, by parties who had before sustained pecuniary damage by her illegal proceedings (as detailed in 1 Am. State Papers, p. 564, ut supra), the United States' Executive backed up the authority of the Federal tribunals in taking cognizance of those suits, and two several proceedings having been dismissed on technical grounds, a final condemnation of forfeiture in a "qui tam" suit was pronounced, and (we have no doubt) enforced under national auspices.

The length which the American Government went, on this occasion, in vindicating their neutrality, can, in some degree, be inferred, from the tone of complaint adopted in regard to it by the French minister of that day, Adet, addressing the American Secretary of State in a violent reclamation for indemnity and satisfaction. His memorial will be found in American State Papers, vol. 1, pp. 579-586. Further angry correspondence, relating to this vessel, showing that we carried

the assertion of our neutral independence, and sense of international justice, to the very verge of a war with France, will be found in 1 Am. State Papers, pp. 629-639. Our limits only permit a brief citation from Mr. Adet's memorial, at p. 586:

"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 suffering a violation of the treaties subsisting between the two republics.' The undersigned complained that the new suit commenced against the Cassius had been carried to an incompetent tribunal, and in the same letter of August 1, 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, which, 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.

"ADET."

It was, doubtless, after the date of this despatch (Nov. 15, 1796), and in consequence of the abandonment by the French Government of any further interest in the Cassius, that the qui tam suit for a forfeiture proceeded to judgment. Mr. Justice Johnson, in his opinion in the L'Invincible (1 Wheat. p. 253), already quoted, and who grounds that opinion, as we