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grounded his sentence only on the article of twenty muskets. Some of the attorneys for the privateer had considered it as of so little consequence, that they had not conceived it would be brought in question; and had omitted to speak of it in their pleadings. It was natural to appeal from such a sentence; the consul of New York was the appellant, and required, agreeably to a law of Congress, that the vessel should be given up to him, under security during the appeal; but he could not obtain it; the vessel was sold for less than a tenth part of the cost of her armament: and the money was deposited till the conclusion of the process.
The circuit court, as was expected, set aside the sentence which condemned the privateer; but Mr. Harrison, not content with all he had hitherto done, immediately appealed to the supreme court of the United States, which was not more favourable to him, and confirmed the sentence of the circuit court. The government, notwithstanding the representations of the undersigned minister plenipotentiary, took a decided part in the appeal, and gave it in charge to Mr. Lee, the attorney-general, to argue—which he did with much eloquence, but with the success such a cause merited.
Affair of the Cassius.
In the month of Thermidor, of the 3d year, (August, 1795) the corvette Le Cassius, belonging to the Republic, commanded by Captain Davis, and sent by General Laveaux to the undersigned minister plenipotentiary, on a particular mission, requiring her immediate return to St. Domingo, was seized in virtue of an order from the distrićt court of the United States, for the state of Pennsylvania, and her captain was arrested at the suit of
VOL. I. V. O a merchant
a merchant of Philadelphia, to answer for a pretended illegal capture made in virtue of his commission, and out of the jurisdićtion of the United States. The undersigned minister plenipotentiary complained of this violation of the treaties and of the law of nations, and requested the government to cause, as soon as possible, the release of the corvette Le Cassius and her captain. He conceived himself so much the more grounded in this request, as he knew that a like interposition was not new in the annals of the United States; as he knew that the executive power.of the state of Pennsylvania had interposed in a similar case, and in the same manner, in favour of the state of Virginia, and as this measure, dićtated by a profound knowledge of the law of nations, and of the reciprocal duties of nations, had been approved and ratified by the tribunals, organs of the law.” But Mr. Randolph, secretary of state of the United States, replied to the undersigned on the 15th August, 1795 —“ As long as the question is in the hands of our “ courts, the executive cannot withdraw it from “ them.” The undersigned insisting, on the first Frućtidor, in the third year (18th August, 1785) expressed himself in these terms: “I do not know, “ nor ought I to know, other than the government “ of the United States; I cannot under any shape “ admit the competency of your tribunals, in the “ different circumstances which arise on the execution or inexecution of the treaties. If these tribunals are the first to violate them, I can only address myself to the government for reparation
* Simon Nathan versus the common-wealth of Virginia. Dallas's Reports, p. 77.
* of that violation ; otherwise it would be, to ren“ der the agents of the French government—the “ French government itself, amenable to these tri‘ bunals; which would be to reverse principles.” Informed that the Cassius and her captain might be liberated on giving security, the undersigned requested, by the same letter, that the government of the United States would, itself, furnish this security; and knowing that the supreme court of the United States, which was then in session, had the power, in certain cases, of arresting the proceedings of the inferior courts, on their signifying to them a prohibition, he suggested to the secretary to adopt this sure and prompt method to put an end to this vexatious procedure. Both these requests were refused. The captain of Le Cassius then addressed himself to the supreme tribunal, requested the prohibition and obtained it. The district court was enjoined immediately to stop the proceedings which had been commenced, and to liberate Captain. Davis and his vessel. But at the very instant in which the marshal was desired to execute the order of the supreme court, he had already in possession a new order from another tribunal (the circuit court) enjoining him to arrest the vessel anew, upon the charge of an English merchant and naturalized American, stating, that this vessel had been formerly armed in the United States; and consequently requested that she should be confiscated, one moiety to himself, aud the other moiety to the government. The undersigned being uninformed whether this vessel had ever been armed in the ports of the United States, he was also assured that some individuals had only attempted to put on board arms and ammunition, and which they were prevented from doing at the time; but he takes upon him to affirm, that since this vessel has become the property of the French O 2 Republic,
Republic, General Laveaux armed and equipped her wholly at St. Domingo; and that at her arrival here, she had not a cannon or pound of powder which had not been put on board her in the territory of France. This new order was signed by one of the judges of the supreme court (in quality of circuit judge) who having already ordered the prohibition in the first instance, must have known very well that this vessel was the property of the French Republic; and who must also have known that the circuit court was not competent to this proceeding; which the law and usage have constantly attributed to the distrićt tribunals. But the distričt court then sat but once a year at Philadelphia; its approaching yet distant session was to be at York Town, and the prosecutor had adopted this roundabout mode, to take away every means from the French Republic of obtaining restitution of her vessel, legally, before the expiration of near a year. In the interval, she was to rot at the quays of Philadelphia. This has taken place. The undersigned, from a spirit of conciliation, made an useless attempt with one of the judges of the circuit court to obtain the liberation of the vessel, on #. security; the reply was that the judge could o nothing of himself; that the court when assembled could alone determine.
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. Ran
dolph : “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 suf“fering a violation of the treaties existing between “ the two Republics.” The undersigned compo cq, ed, that the new suit commenced against the Cassius had been carried to an incompetent tribunal, and in the same letter, of 1st August, 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 that 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 Oétober 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.
(No. 5.) The secretary of state, by his public letter of the 1st November last, in answer to the note of the undersigned minister plenipotentiary, of the 6th of Brumaire last, appears not to have understood either that note or the decree of the executive directory of the 14th Messidor of the
4th year. This decree does not simply contain the order for seizing English property on board of neutral vessels, and of course on board of American vessels; it orders that the vessels of the Republic shall o 3 aćt