had urged the governour of Rhode Island, where the prize was carried, to report the circumstances of the case without delay. On the 27th of Sept. the secretary informed Mr. Fauchet, that the governour had decided that the prize should be restored. On the 17th of Oct. Mr. Fauchet renewed his complaint, for on the suit of the claimant the prize had again been arrested by process from the District Court. The Secretary of State answered on the 22d, with information that ought to have satisfied Mr. Fauchet. For admitting that agreeably to the law of the 5th of June, 1794, the courts had authority, and were bound in duty to take cognizance of captures made within the jurisdiction of the United States, or by privateers illegally fitted in their ports (the right of doing which Mr. Fauchet did not contest) they could not refuse it in the case of the prize of the Sans Pareil: the guard against vexatious prosecutions being the judgment for costs and damages to which an unjust prosecutor is exposed. The circular letter written on this occasion to the governours of the states manifests the solicitude of our government to prevent vexatious suits.

2d Case. Glass and Gibbs.

By the copy of the proceedings in the Supreme Court of the United States, in this case, you will see that the court did not, as stated by Mr. Adet, determine "that the tribunals could decide whether a prize belonged to enemies or to neutrals." The question before the court was of the cognizance of a captured vessel and cargo, the former the property of a Swede and the latter belonging partly to some Swedes, and partly to a citizen of the United States. The opinion therefore pronounced by the Supreme Court applied to the case in which one of the claimants was a citizen of the United States. And after solemn argument, the court decided, "that the district court of Maryland had jurisdiction, and should accordingly proceed to determine upon this case agreeably to law and right."

I will add only one more remark-That the 17th article, the letter of which we are charged with violating, in suffering our courts to take cognizance of French prizes, expressly refers to "the ships and goods taken from their enemies;" and it is the "examination concerning the lawfulness of such prizes" which the article forbids. But no examination of such prizes has been attempted by our government or tribunals, unless on clear evidence,or reasonable presumption, that the captures were made in circumstances which amounted to a violation of our sovereignty and territorial rights.

3d Case. The French privateer L'Ami de la Point a Petre, captain William Talbot, and her Dutch prize the Vrouw Christina Magdalena.

To the information contained in the papers collected in this case I have to add, that this cause was finally decided in the Supreme Court in August term, 1795. The court were unani

mously of opinion, that in the particular circumstances of Talbot's case, notwithstanding his French commission, and his taking an oath of allegiance to the French Republick, he continued to be a citizen of the United States. But the cause, as I am informed, did not appear to have turned on this point. Talbot had associated with one Ballard, commanding an armed vessel called the Ami de la Liberté, which had been fitted out in the United States, and had no commission. Talbot and Ballard cruised together as consorts; and in fact it was Ballard's vessel that took the prize; Talbot not coming up till an hour after the capture. Ballard was afterwards tried, before the circuit court, for piracy.

The court were also of opinion, from the tenour of the evidence, that Talbot's vessel was owned by citizens of the United States, to whom the prize money would eventually find its way in case of restitution to the captors.

Ballard and Talbot were both citizens of Virginia. The attempt of the latter to become a French citizen, was considered to be fraudulent, being made for the sole purpose of obtaining a commission, under colour of which he might plunder the subjects of nations with whom the United States were at peace.

An observation ought not to be omitted here, That although the captors, Talbot and others, had been defeated both in the district and circuit courts, yet they carried the cause up to the supreme court: thus using the legal right of appealing to the court in the last resort; a right which alike exercised by the subjects of powers who were enemies to France, has formed a principal subject of Mr. Fauchet's and Mr. Adet's continued complaints.

4th. Under the head of complaints for vexatious prosecutions, Mr. Adet mentions only two cases in which damages and interest were allowed to the French captors, viz, one of la nuestra Senora del Carmen, at Rhode Island, and the other of la Princessa des Asturias at New York. "Yet (says he) the tribunals have always allowed damages to the captured, when they have declared the prizes illegal." How far the facts will warrant this last assertion, I am not possessed of documents to deter. mine. I presume it is to be understood in a general sense only, and to admit of exceptions. And in this sense there will be no difficulty in admitting the truth of the assertion, and accounting for it. The captures here referred to, were made either within our jurisdictional line, or by illegal privateers, being such as were equipped in whole or in part, in the ports of the United States. Of these material facts the captors could not be ignorant; consequently they could have no apology for defending their unjust claims in our courts; and of course, were justly condemned in costs and damages.

In the case of the prizes of the privateer the Citizen of Mersailles, damages were claimed by the captors, but denied. For

those prizes had been considered in the district court to be illegal. And although the sentence of that court was reversed in the circuit court, yet it was upon the introduction of new testimony, on the part of the captors. This last decision was affirmed in the supreme court, yet without damages: inasmuch as the testimony was considered to be so ambiguous as to justify the appeal.

The same remarks apply to the prizes of the privateer General Laveaux; with this addition, that one of the judges dissented from the opinion of the court, being firmly of opinion that this privateer was covered American property.

The privateer la Parisienne had been registered as an American coasting vessel, under the name of the Hawk. During the embargo, in the spring of 1794, she slipped out of Charles-ton, and went to Port de Paix; where she was sold to one Blochos, a Frenchman, who armed her and provided her with a commission. Having afterwards arrived at Charleston, she was recognised and prosecuted for a breach of the revenue laws, in having gone to a foreign port whilst she was in the legal predicament of a coaster. The district court condemned her: but on the application of Blochos to have her restored on paying the appraised value, the judge permitted him to take her, in a state of warlike equipment. Shortly afterwards she put to sea, and captured two valuable British prizes, the brigantine Cæsar and Favourite. On their arrival, the one at Charleston, the other at Savannah, suits were commenced to obtain their restitution, as having been captured by an illegal privateer. The decrees of the courts were in favour of the captors, but without damages. The supreme court disapproved of the restitution of the privateer without dismantling her: and considered the mistake committed in this respect a sufficient reason to cover the party prosecuting from the payment of damages.

All the other cases of captures by French privateers, which have been brought up to the supreme court, were decided at last August term. In some of them, the circumstances would not have warranted an award of damages, in others the counsel for the captors omitted to ask for them. When demanded, you know that it is in the discretion of the court to grant or refusc them this discretion being regulated by all the circumstances of each case. Hence when a party is drawn before the court without good cause and vexatiously, damages are always given; but are denied when there appears a reasonable cause of controversy.

5th. Mr. Adet having briefly noticed several cases by name, seems to reserve those of the Vengeance and the Casius for a full display of unwarrantable conduct in the government and courts of the United States, and therefore descants on them at some length; but with so many aberrations from the facts, with so many erroneous ideas concerning our jurisprudence, and so

VOL. II,

4

AMERICAN

many injurious insinuations respecting our courts and their offcers, it will be necessary that you should learn the true history of these cases from authentick documents.

Case of the French privateer la Vengeance.

For the full history of this privateer and her prize, I must refer you to the documents in the case. The principal facts are these. About the latter end of June, or beginning of July 1795, the privateer la Vengeance arrived at New-York with a valuable Spanish prize called the Princessa de las Asturias. Don Diego Pintado, the owner, commenced a suit for his vessel, on the ground that she had been taken by an illegal privateer. The suit was instituted by Mr. Troup, not wantonly but upon information which was afterwards verified by the oaths of several witnesses. In the progress of the cause these witnesses were contradicted by the witnesses produced on behalf of the captors, for whom a decree was finally given: The clashing evidence preponderating, in the judge's opinion, in favour of the captors but he expressly declared that there was probable cause for the seizure.

true.

After this suit for the prize had been commenced, the Spanish consul complained to Mr. Harrison, the district attorney, in his official capacity, of a violation of law, on the part of the pri vateer la Vengeance, in consequence of which a Spanish subject had been injured. Mr. Harrison upon an inquiry found at least a probability that the complaint respecting the privateer was This probability arose from what he considered as affording the certainty of material proof; and, therefore, in conformity with his official duty, commenced a prosecution on the act of Congress forbidding the arming of privateers in our ports. The decision of this and of the prize cause depended on the same evidence. The decision being in favour of the captors, Mr. Harrison acquiesced in it as it respected the privateer: and he united with his associate counsel in the prize cause in advising the like submission in that case. But the Spanish consul deemed it his duty to pursue the claim to the court in the last resort, This can warrant no complaint; for Mr. Harrison remarks, that perhaps there never were causes in which more contradictory and irreconcileable evidence was offered, and in which the minds of the auditors were more divided as to the real state of facts.

The second publick suit against the privateer, was for exporting arms and ammunition from the United States, when such exportation was prohibited by law. The evidence which appeared in the other causes gave rise to this prosecution; and upon the trial the judge condemned the privateer. An appeal from this sentence was interposed by the French consul. The appeal was heard in the circuit court, and upon new evidence the sentence of the district court was reversed.

Mr. Adet complains, that while one suit was pending for the

prize, and another against the privateer, the district attorney should exhibit a second information against the privateer, on which she was arrested anew, for having exported arms in violation of a law of the United States, which was in force when the Vengeance sailed from New York: and that this information was filed on the simple declaration of Mr. Giles, the marshal of the court, who as informer, was to share part of the confiscation. As Mr. Harrison remarks it was in favour of the privateer that this second information was filed, while the first was pending, because it saved time. Had he postponed the latter until the first had been decided, there might have been some foundation for a charge of unnecessary delay. Mr. Harrison's state of the case shows that this second information was not made on the declaration of the marshal; but on the evidence that appeared on the examination of the first.

Mr. Adet having been pleased to censure the conduct of the attorney, clerk, and marshal of the district court of New York; in justice to them, I have added to the other documents in this case, the letters of Mr. Harrison and Mr. Troup. They will answer the double purpose of justifying them and of vindicating our government and tribunals.

Mr. Adet particularly notices the papers he had received from St. Domingo, "proving," as he says, "in the most convincing manner, that the Vengeur (la Vengeance) had arrived at Port de Paix without any armament or equipment whatever; and that she had been sold, armed and equipped wholly, and commissioned as a privateer, on the territory of the Republick. These documents were certificates of the general, the ordonnateur, and of the greater part of the principal officers of St. Domingo, &c. He hastened to communicate them to the Secretary of State, and to request him to order the attorney of New York district to stay the proceedings instituted in the name of the government: there was nothing done with them and Mr. Harrison continued his prosecution." It will appear by my letter of October 1, 1795, to Mr. Harrison, that these papers were sent to him, and by his answer of October 3d, that he received them. That the bill of sale (one of the papers) was produced to the court, in behalf of the claimant of the privateer; but that the certificate of general Leveaux could not be considered as evidence in the cause; and if it had been admissible, "the claimant would be very cautious of producing it, on account of its differing from the witnesses."

Sixth. Case of the French privateer le Casius.

For the full history of this case, I must also refer you to the documents; and here only present you with a concise statement.

The Casius, under the name of les Jumeaux, was fitted and armed for a vessel 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 descend the river, orders were given