however, had an interest in the question, and recurring to authorities* where the interests of third persons had been effectually brought before even courts of common law, he ventured as a more solemn form of motion, to state to a court of admiralty and fiscal jurisdiction the interests which he represented and the objections he had to urge, in the form above mentioned. On the same day a plea to the jurisdiction of the court was filed in the name of Samuel B. Davis, by counsel employed for him. The intention of doing this had not been communicated, or the suggestion would have been deemed unnecessary; but as far from interfering with, they tended to support each other,— both the plea and the suggestion remained upon the files of the court, in course to be answered on the next court day.

In the mean time, the counsel employed for captain Davis applied to the supreme court of the United States, then in session, for a prohibition to the district court; which was granted upon principles which will be found to coincide with those which had directed the conduct of the district attorney in the outset; a short statement of which is contained in the writ of prohibition making part of the record annexed, and thus the proceedings in the district court were terminated. In reviewing the case to this point, it obviously appears that the conduct of government was friendly and consistent-that the obligations of the treaty with France were faithfully obeyed, by taking every constitutional method, in aid of the requisitions of the French minister, that the occasion could reasonably admit, without evasion or delay, and that nothing but the existence of a controlling power over the courts of justice, wisely excluded from our constitution, although it seems to be supposed in the complaint, could produce further exer

tions.

The business now assumed a new aspect. On the twenty-fourth August, Mr. John Ketland, a citizen of the United States, filed an information in the circuit court, founded upon the act of fifth June, 1794, entitled, an act in addition to the act for the punishment of certain crimes against the United States; and having made oath to the truth of his allegations before one of the judges of the su

* Lord Hardwicke 237. Cowp. 734, and instances of modern practice.

preme court, obtained an order to attach the Cassius. It is scarcely necessary to observe that the government of the United States had no share in this transaction. Where a forfeiture is given by law, as in the present instance to be appropriated one half to the informer and the other half to the publick, any individual has a legal right to commence the proceedings and receive the benefit. The publick has no control over it and can by no act legally impede or defeat the suit. The moiety due upon conviction to the publick may be remitted, but the moiety due to the informer is subject only to his own will.

It therefore ensued that the part to be taken by the government of the United States, on this new occurrence, was precisely analogous to that which attended the suit in the district court. And directions were given accordingly.

The attempt to implicate the conduct of the judge of the supreme court, who signed the order to the marshal, evinces a very moderate share of information. To administer the oath and issue the order required, were as precisely his duty as it was to repel the attempt to obtain the liberation of the vessel previous to the meeting of the court at Yorktown.

Mr. Adet on the first of September (not on the first of August as stated in his note) renewed his complaints to the Secretary of State, urging, among other things, that the suit had now been carried to an incompetent tribunal. It certainly was not in course for any other publick officer than the judges of the courts to decide upon the doubtful jurisdiction of the circuit court in this instance.

A judicial system in some respects perfectly new-in the present instance yet untried, required a regular and professional discussion before the point could be determined. Two gentlemen of eminence at the bar, concerned for Mr. Ketland, adopted and supported the jurisdiction of the circuit court for the present proceeding.

The order from the judge, the official powers of the marshal, were not to be resisted from a belief or a hope that the jurisdiction would ultimately be found incompe

tent.

An application on the part of the French minister to the executive authority to cause security to be given for the Cassius, to enable her to proceed upon her voyage, was on consideration rejected: because if it should afterwards

be made to appear that the ship had been illegally fitted out in a port of the United States, other nations who might suffer by her warlike operations would have just cause to claim a compensation from the United States, and this independent of the ground already stated in considering the subject of forfeiture; because the request was believed to be without a precedent; and because it would in effect have been assuming the judicial power of determining on the important questions in view. The executive power was therefore restrained from affording further aid to the efforts of Mr. Adet until the court should meet at Yorktown, on the 11th October. On the 27 September, Mr. Adet thought proper formally to signify to the Secretary of State that he had caused the Cassius to be dismantled, and abandoned her to the government of the United States.

From this time therefore the particular motives to urgency on account of the mission with which the Cassius was said to be charged seemed to have ceased. But the efforts to obtain a dismission of the suit were not on that account relaxed.

At the meeting of the circuit court at Yorktown, the district attorney filed a suggestion similar to that used in the district court.

The multiplicity of criminal business prevented his obtaining a decision, but it had the effect of suspending the progress of the information. The cause was necessarily continued till April session of 1796.

A letter from the district attorney to the Secretary of State, dated May 28th, 1796, relates the proceedings of that April session, which were somewhat delayed by a reluctance on the part of Mr. Adet to furnish sufficient documents to establish the property of the Cassius. A copy of the letter, as a proper continuance of the narrative, is here inserted, viz.

No. 106.

SIR, As soon as I received the supplemental certificates. of the French minister, which was not till the 26th of April, I gave notice in court that before the session ended Í should move to have the prayer of my suggestion granted and the information dismissed.

A jury trial then before the court prevented any thing else being done until the 29th, when the informant's counsel mentioned that they would on the following day come forward. This was then done by requesting me to show the foundation of my suggestion-I produced part of the correspondence between you and Mr. Adet, and the two certificates of that minister. It was urged by the informant's counsel that the same proof was necessary to authorize the receiving a suggestion as would be to support it on a trial, and that as such certificates would not be receivable in that case, so they ought not now to be received. But the court observed that much less was sufficient in one case than in the other. The informant's counsel then moved that my suggestion be dismissed-this I declared myself ready to argue with them; but as we were now at the close of the session it appeared to the court impossible to go through the business--and it was therefore unavoidably continued till next October. It appeared, however, so plainly to be the sense of the court, that further evidence as to the property of the Cassius would be necessary on a trial of the facts, that I scarcely expect, with the aid of those two certificates only, to succeed. I am, &c.

May 28, 1796.

In October following the district attorney renewed his. efforts to obtain a hearing with more success. In the course of the argument the question of jurisdiction presented itself. The court adjourned till the next day for the purpose of fully considering it, and on the following morning dismissed the suit.

December 21, 1796.

No. 107.

W. RAWLE.

Abridgment of the Writ of Prohibition, directed to the District Court of the United States in and for the Pennsylvania District.

THE prohibition recites, that by the law of nations and the treaties between the United States and France, the trial of prizes taken without the jurisdiction of the United States and brought into the jurisdiction of France, for ad

judication, by the vessels of war of the latter, and all questions incidental to it, belong exclusively to the judiciary establishments of the latter; that consequently its vessels of war and their officers are not liable to process of our courts predicated upon such capture and bringing into port; that particularly the jurisdiction of such causes does not belong to the district courts of the United States; that for such capture and bringing into their own ports, of neutral ships, to answer for any breach of the law of nations concerning the navigation of neutrals, the said vessels of war and their officers are only accountable to the sove reign under whose authority their commission is held ; that on the 20th May, 1795, Samuel B. Davis was a lieutenant of ships in the French navy and commander of the corvette called the Cassius, having a lawful commission; that James Yard of the city of Philadelphia merchant had caused the said Davis and the said corvette to be arrested to answer to his libel against them filed in the district court of the United States for the district of Pennsylvania, in which he alleged, that on the said 20th of May, the said Davis, with the said corvette and as her commander, had captured on the high seas a schooner belonging to the said Yard, called the William Lindsay, and carried her to Port de Paix where she then remained; that the Cassius had been originally equipped for war in the port of Philadelphia, and that Davis, at the time of said capture, and then, was a citizen of the United States, but without alleging, that the said capture had been made within a marine league of the coast of the United States, or that the Cassius had been equip.. ped for war in the United States with the privity of the French Republick, or by the said Davis, or that at the time of her being so equipped (if she ever was) she was the property of the Republick, or that the said Davis was any how concerned in such equipment, and without alleging that he was retained in the service of the Republick within the jurisdiction of the United States: the writ therefore prohibits the judge from further proceedings and commands him to release said Davis and the Cassius without delay. It is tested on the 24th August, 1795.