cause whilst it is a subject of judicial examination. Permit me however to observe, 1st, That even if they are sufficient to warrant the acquittal of the privateer, it will by no means follow that the seizure and detention were improper; otherwise, it would be necessary in all cases to try the cause before the commencement of the suit. 2dly, That the bill of sale has been produced to the district court on behalf of the claimant, and will receive from the justice of that court its proper interpretation, either as evidence of a genuine contract, or as a mere cloak to disguise the transaction. 3dly, That general Laveaux's certificate (whatever respect it may be entitled to) is not to be considered as evidence in the cause; and if it could be made so, the claimant would be very cautious of producing it, on account of its differing from the witnesses. And 4thly, That the certificates of Mons. Vilatte, and Mr. Falconer are such as do not contradict the supposition that the vessel may have been prepared and fitted for her armament in the port of Philadelphia, and that she may have received it on board before she quitted the Delaware, though she acquired additional force in the West Indies.

No. 83.

New York, December 5, 1796.

SIR,-In Mr. Adet's official note to you of the 15th ult. I find a charge against me as one of the officers of government, for delaying the decision of the suits instituted in the district court for this district, against the prize ship La Princessa de Asturias, and the privateer La Vengeance. As the reputation and interests of the government, in its foreign relations, are intimately connected with the conduct of its officers, I think it my duty to furnish you with the following state of facts.

I was appointed clerk of this district, immediately after the courts of the United States were organized; and being then a practiser in the state courts, the judge of the district also permitted me to practise in his court. Being thus permitted to practise in the district court, I supposed myself at liberty to be concerned for Don Diego Pintado, as well as for any other individual. The suit which I in

stituted for him was not instituted 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 the part of the captors; and a decree was finally given for the captors, under an opinion of the court, that their witnesses were entitled to the greatest degree of credit. If the witnesses of Don Diego Pintado had not been contradicted by those of the captors, it cannot be doubted that he would have obtained a decree for the restitution of his property.

The libel of Don Diego Pintado was filed on the 2d, and the answer and claim of the captain of the privateer, on the 13th of July, 1795. On the 17th of the same month the parties proceeded to examine their witnesses. It was not until the 11th of November following that the examination of witnesses for the captors was closed; and in two days afterwards the cause came on to be argued. The delay in taking the testimony did not arise from any circumstances which can cast even the shadow of an imputation upon me or the counsel associated with me. There were many witnesses on both sides: some of them came from Philadelphia, and others from the West Indies, after the cause was at issue and the proofs became necessary; all the examinations were reduced to writing, and most of them were lengthy; the yellow fever prevailed in this city, and so general and destructive were its ravages. that Mr. Edward Livingston, the proctor for the captors. deemed it prudent to retire to Long Island; Mr. Brockholst Livingston, one of their counsel, for the same reason, removed to Dutchess county, more than eighty miles up the North River, where he remained until the fever subsided; and their leading counsel, Mr. Duponceau, was an inhabitant of Philadelphia. The proctor and counsel, however, of Don Diego Pintado continued in the city, and were at all times ready to do every thing in their power to expedite the cause. On the 10th of December, 1795, the district judge pronounced his decree in favour of the captors. An appeal from this decree was immediately interposed, by direction of the Spanish consul, to the next eircuit court of the United States for this district, which by law could not be held before the 5th of April, 1796. Not long after the appeal was interposed, Mr. Hamilton,

Mr. Harrison and I had a conference with the Spanish consul, at which we assured him it was our unanimous opinion that there was little or no probability of ultimate success in the cause, and therefore we could not advise the continuance of the appeal. The Spanish consul in reply asked us for our opinion in writing, that he might transmit it to the Spanish consul general at Philadelphia, and receive his instructions. We accordingly delivered to the Spanish consul a written opinion subscribed with our names, in which we unanimously treated the cause as one that was nearly hopeless, and strongly discountenanced the further prosecution of it. We did not preserve a copy of this opinion, or I should now transmit it to you: the original I understand is in the hands of the Spanish consul general. In the course of a few days after the Spanish consul had received our written opinion, he informed me that the agents of the Spanish government at Philadelphia, having taken charge of the suit merely as publick officers, felt themselves bound to pursue the straight course marked out by the laws of the United States, and to apply for the judgment of the court sitting in the last resort. This answer was decisive with the counsel for Don Diego Pintado. They were obliged in faithfulness to the trust reposed in them to prosecute the appeal and prepare it for argument at the circuit court appointed to be held on the 5th of April-this was done-the cause was argued again-and the decree of the district court was affirmed. A writ of errour was then brought in compliance with the instructions which the Spanish consul had previously received from the consul general. An early opportunity was afterwards taken by the counsel of Don Diego Pintado, to impress upon the mind of the Spanish consul the desperate situation of the cause, inasmuch as it would go up to the supreme court with a case made by the circuit court and forming a part of the record, which would probably be conclusive upon the supreme court, and compel it to affirm the judgment of the circuit court. The same considerations nevertheless, which led to the prosecution of the appeal from the sentence of the district court, determined the agents of the Spanish government not to discontinue the writ of errour. All the preparatory steps proper to put the cause in such a state as to entitle it to be argued at the next supreme court. at which the writ of

errour was returnable, were consequently taken. The term of the supreme court commenced on the first Monday in August, 1796, at Philadelphia, and on that day, if older business had permitted it, the cause might have been heard. During the term, however, the cause was heard and the judgment of the circuit court was affirmed.

In a cause removed into the supreme court by a writ of errour, that court is not authorized to issue execution to enforce its judgment, but is required to remand the cause to the circuit court, by special mandate for execution. In the interval between the rendering of judgment by the supreme court, and the presenting of the mandate to the circuit court, all further proceedings in the cause are necessarily suspended, and nothing can be done but by the courtesy of the unsuccessful party. The circuit court for this district sat on the 5th of September last, which was rather more than a fortnight after the decision of the supreme court; and yet no advantage was taken or attempted to be taken by the counsel of Don Diego Pintado of the suspension which the law created. So far from it that I wrote a letter to Mr. Duponceau, in Philadelphia, the very day I heard the supreme court had given judgment, in which I mentioned that the circuit court would sit on the 5th of September following; that little business would come before it, and therefore its term was likely to be short; and that I was willing to concur in arrangements for the immediate assessment of the damages which the circuit court might award to the captors; and I added that the supreme court having decided upon the merits of the cause, I wished he would send the captain of the pri vateer, then in Philadelphia, to me for the money brought into court, as I meant to pay it to him without waiting for an order from the circuit court, for the purpose. Mr. Duponceau communicated my wish to the captain of the privateer, and he accordingly came on and received the money before the circuit court began; and in pursuance of arrangements by mutual consent the damages were assessed in time to be finally decided upon by the circuit court. Without these arrangements it is more than probable that the captors, according to the usual course in similar cases, would not have received their damages until after the circuit court, which will be held on the 5th of April, 1797.

From this state of facts, I presume it will be evident to every unprejudiced mind, that Mr. Adet's charge against me is wholly unfounded. Were the preceding facts incapable of proof, I might safely appeal to the candour and liberality of the counsel for the captors, as witnesses of the fairness and propriety of my conduct in every stage of the cause; and if they said one single syllable to my prejudice I would plead guilty and submit to be banished from my country, as unworthy of its confidence. I make use of strong terms, because I know that my integrity places me upon high and solid ground. If Mr. Adet, before he published his note had taken the trouble of inquiring of Mr. Duponceau, relative to my conduct, he would have been told that the tenour of it throughout the cause was fair, honourable and liberal. I am possessed of several letters from Mr. Duponceau in which he emphatically expresses this opinion, and returns me his thanks.

Not having been concerned in the suit against the privateer, I refer you to the attorney of the district for such information respecting it as he may suppose it proper to give you. With sentiments of the purest esteem, I have the honour to be, &c.

ROBERT TROUP.

No. 84.

Mr. Harrison, District Attorney of New York, to Mr. Pickering, Secretary of State. New York, Dec. 12, 1796.

SIR, Mr. Adet's long and extraordinary note of the 15th ultimo, could not fail of exciting both surprise and attention. The variety of ill founded charges which if contained against the most revered and respectable characters in our country, and its general strain of censure upon the wise and impartial measures of government, had a natural tendency to make the reproaches it contained upon inferior individuals be considered rather as marks of honourable distinction, than as inflictive of disgrace. Under these impressions, and conscious that as far as I was implicated in his censures, they were wholly unmerited, I had balanced with myself whether it could be proper to add any further statement to those communications respecting the case of La Vengeance, which had already