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sures, the same attorney, some time after, the two other causes being still pending, exhibited a second information against the privateer, and had her 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. This information was made upon the simple declaration of Mr. Giles, marshal of the court, who, as informer, was to have his part of the confiscation : so that all the officers of the district court (except the judge) were interested in the condemnation of the privateer or her prize. It is well to observe that, during the course of the process, the monies arising from the sale of the prize were deposited in the hands of the clerk (attorney for the Spaniards) those arising from the sale of the privateer in the hands of the marshal, (informer and interested in the confiscation)---so that their interest was to spin out these causes by ineans of appeal; and so it has happened.
As this last information is here principally in question, it is proper to enter into some details on the subject. It appeared in the allegation, that the privateer had exported from the United States two cannon, twenty muskets, and fifty barrels of powder.
Two cannon and twenty muskets could scarcely be an object of commercial speculation. The existence of the cannon has never been proved, and certainly whatever muskets were found on board, were only for the defence of the vessel, without a wish to infringe the laws of the American government. The powder, in truth, was of the greatest consequence, but the consul of New York hastened to give his declaration under oath, and to prove by witnesses, that this powder had been taken from on board La Semillante, and made part of her
to be founded upon any previous affidavit, or evi“ dence of the truth of the matters alleged in it. “ The filing of an information is an act entirely " in the discretion of the officer entrusted by law “ with the power of doing it; and if he should “ abuse his power, he stands upon the footing of “ all public officers who are guilty of malversation .“ in office. In the present instance, Mr. Harri" son has acted from the best of his judgment
upon the duty of liis office, after officially ob
taining information from a public officer, who “ conceived himself likewise bound by a sense of “ duty to communicate the inforination."
When the undersigned ininister plenipotentiary renewed the charge on the 3d Vendémiaire, 4th year (24th September, 1795) to the secretary of state, and still complained that an affidavit was not required to cause a privateer to be arrested-he expressed himself in these words:
“ But I again renew the assertion that an affi. s davit is not necessary for ordering the arrest of
a vessel :"
Wliat is the law, what is the usage, which establishes the prosecution for reparation of an offence, before it be ascertained that it has been committed ; and what certainty then had the attorney? His apinion! Upon what is it founded? The complaint of the Spanish agent, since there was not a single affidavit.
Now, Sir, upon mere suspicions which the enemy interest will not fail always to bring forward, the French privateers are to be subjected to seizure ! Such a measure tends to nothing less than to paralize the 17th article of our treaty.
The secretary of state, in reply, sent to the undersigned minister plenipotentiary the copy of a letter from Mr. Harrison, of the 3d October, 1795,
in which is this remarkable passage-" In this whole “ business, however, I have undoubtedly acted from
my own opinion, founded upon such evidence as came to my knowledge; and as in similar
cases, I must necessarily, in the first instance, “ be unacquainted with the opinions and convic“ tions of others, I know of no other rule by “ which I can be guided, unless when I am ho“ noured with the directions of the chief execuiive « magistrate."
The secretary of state thus closes his letter of the 16th of October covering that of Mr. Harrison
“ You will perceive that whatever may be the
event of the suits pending in court concerning s her (the privateer) and her prize, the public
officer, Mr. Harrison, is supported in liis pro“ ceedings by the laws and usages of this country, “ upon such evidence and information as in the
case referred to were produced."
(No. 4.) In virtue of this law, the tribunals were only authorized to decide on cases in which the neutrality of the United States shall have been compromised. Yet these tribunals conceived they had a right to pronounce upon prizes made by the French, in almost an indefinite manner. In the affair of Glass and Gibbs against the ship Betsey, the decision of which has been printed, the supreme court pronounced, that the tribunals could decide whether a prize belonged to enemies or to neutrals. In the affair of Joost Jenson against the Datch ship Vrow Catharina Magdalena, it was decided that the naturalization granted in the territories of France to American citizens, during the war, could not give them the right either of serving or of commanding on board of French privateers ; that the prizes made by such, although legally commissioned, were not valid : a distinction
is established between a legal and an illegal privateer; it was judged that they had a right to pro. nounce on this legality! and consequently on the validity of the prizes: it was finally decided, that a prize made at sea with the assistance of an illegal privateer, was void and should be restored.
It was according to these first decisions of the supreme court that the district attorney of Virginia wrote officially, on the 28th March, 1794, to the vice-consul at Norfolk" No vessel can be con“ demned as prize, but in district courts, which are “ the proper admiralties of the United States." The eneinies of France understood, or did not understand, this mode; but they availed themselves of it; and in order to cause French privateers to be arrested, they had recourse to the law of 5th June, 1794.
At this period, however, the law had put into the hands of government a sufficient power for preventing the arming and equipping of privateers in the ports of the United States. By the letter of the secretary of the treasury of the 4th August, 3793, the collectors of the customs were authorized, and even required, to visit, in the strictest manner, not only all privateers, but all vessels entering or going out of American ports. The law of the 5th June authorized the president to support the exercise of these functions with military force. Of course, they did not neglect to visit, with the greatest rigour, all French vessels, privateers, and others, during their continuance in the ports of the United States, and at their departure. They did not quit these ports, but under the eye, and with the express permission, of the officers of the government ; for it had forbidden the collectors to clear them, if they committed the least violation on the neutrality of the United States : in which case they might be seized and confiscated. Yet, whe
ther they had entered the ports of the United States armed, and also went out armed; or had since been armed for war in French ports, scarcely did one of their prizes enter, but she was arrested by order of the federal court.
The proceedings were instiiuted and pursued, without any of the forms for protecting citizens. As the undersigned minister plenipotentiary has said, the assertion of an enemy of the Republic was sufficient for causing a prize to be seized ; often the privateer which had brought her in, and sometimes, for the arrest of her captain, no proof was required from the enemy consul who instigated the arrest ; he was not obliged to give secu. rity for the damages which might result from the procedure, if it were unfounded; the captain was not allowed to remain in possession of his property, on giving security for its value ; the prizes were not valued ; they simply placed them in the hands of the officers of justice ; rarely were they permitted to be sold ; and then the sale was made with slowness, and not till the consent of the two parties was obtained. In fine, when with much delay and expense, notwithstanding the shifts of a crafty chicanery, the complainants proved nothing they advanced, the prizes were adjudged to the captors, but refused indemnification for damages and losses occasioned by this seizure.
The undersigned minister plenipotentiary knows but two affairs, that of La Nostra Senora del Carmen, at Rhode Island ; and that of La Princesse des Asturies, at New York, where security was given to the party complaining, and where damages and interests were allowed to the captors yet the tribunals have always allowed damages to the captured, when they have declared the prizes illegal. The least pretext was sufficient to obtain from a tribunal the arrest of a prize; it was suffi