At the last session of the Supreme Court of the United States, the writ of error was not returned. Pagan's counsel, holding the record in his hands, mentioned the subject to the court; upon which the chief justice of the United States produced a letter from the chief justice of Massachusetts, informing him that the writ having been directed to the supreme court of Massachusetts, instead of the supreme judicial court, it could not be obeyed by any court in Massachusetts, as none bore that name. But he added, that, with this correction, it should be taken into consideration. Pagan's counsel was solicitous to leave the whole business in the hands of the court, without any specific motion; but the court declared that, without a motion, they should consider nothing. Upon this, Pagan's counsel replied that he should make a motion for an alias writ of error, but should argue against it. One of the justices expressed his surprise that a gentleman should argue against his own motion; and was answered by the counsel, that he hoped to satisfy the court that, under the extraordinary circumstances of the case, he was free to do so. this, the same judge said that the circumstances must be extraordinary indeed, which would warrant such a procedure.

Το

On the next day, the record was exhibited by the counsel, and the motion made. The court asked him whether the subject which gave the court jurisdiction was apparent on the record. He averred that it was not. I happened to be present; and reminded the court and the counsel of the delicacy of the case; and particularly requested the latter to remember that it had been before the Government of the United States; that every means ought to be tried; and that, instead of asking for the writ as a new thing, he should move for it, as a thing of course, after one had been already granted. But he remarked, and the court agreed, that the propriety of the writ was as much open now as ever; and the renewal of it was unanimously rejected.

The latter part of this representation ought probably to have come from Pagan's counsel; but, to avoid delay, I have drawn it with a view of showing it to him before I forward it to you.

I pretend not to decide on the style in which the motion ought to have been made, especially as I am no stranger to the abilities and integrity of Pagan's counsel. But I shall leave the proceeding to your own comments, and shall turn my attention to the following aspect of the case: Whether, upon the supposition that the most perfect mode of application for a writ of error has been adopted, the United States are not discharged f om responsibility by the judgment of the court?

B.

PHILADELPHIA, March 19, 1793.

SIR: The first application to me, on the part of Mr. Pagan, was accompanied with the proceedings of the supreme judicial court of Massachusetts to the third Tuesday of June, 1789, inclusive. My opinion was requested, whether the judgment then given was liable to an appeal to, or writ of error from, the Supreme Court of the United States. I was clearly of opinion that there could, with propriety, be no such appeal made, or writ of error granted. When my opinion was thus requested, I

knew not that application had been made on Pagan's behalf to the Government of the United States. I received the first intimation of such application from yourself, when you informed me that there had been subsequent proceedings in Massachusetts, of which you shortly afterwards furnished me with an abstract. Before the abstract came into my hands, I wrote Messrs. Joseph Anthony & Son that you were to let me have an abridgment of all the documents in your possession relative to the business, which might possibly induce me to think that a writ of error ought, in strict legal propriety, to be sued out; that, from your verbal communication, I was perfectly satisfied of the prudence of applying for the writ of error, as Pagan could not complain of a defect of justice until he had tried the writ of error, and found that mode ineffectual. Accordingly, application was made to a judge; the writ was refused. I rather think the record, as it was exhibited to me, was laid before the judge, with your abstract of the subsequent proceedings of this, however, I am not positive. Be it as it may, you recommended a second application; and that it should be made while the Supreme Court was sitting, in order to give the judge an opportunity to consult his brethren on the subject. The writ was then awarded; but the clerk of the Supreme Court having omitted the word "judicial" in the style of the court of Massachusetts, no return was made to the writ. When the clerk called the action, on the first Tuesday of the last Supreme Court, Chief Justice Jay read a letter from the chief justice of Massachusetts, stating the misdirection of the writ; and adding, in very respectful terms, that, when a writ came properly directed, it should be taken into consideration. I then briefly mentioned that I should, during the session, address the court on the subject. On the second Friday of the Supreme Court, after you had closed your argument in Pepoon vs. Jenkins, I broke the business to the court, without making any specific motion; but the court said that, without a motion, they should consider nothing. I then replied, that in the morning I should move for a writ of error, (not an alias ;) but should wish to be heard against my own motion. One of the justices expressed his surprise that I should argue against my own motion; and I answered, I hoped to be able, from the particular circumstances of the case, to satisfy the court of the propriety of my conduct. At this time, one of the justices observed that he had been for granting the writ, under the idea that a writ of error was of right; but that now he was of opinion it ought to appear that the court had jurisdiction. On the next day I moved for a writ of error, having in my hand all the proceedings in Massachusetts; declaring that, out of respect to what fell from one of the justices the day before, I would not ask to be heard against my motion, but would barely mention the two reasons which influenced Pagan's counsel in Massachusetts and here to entertain the opinion that there was no jurisdiction in the Supreme Court. To the best of my recollection, those reasons were mentioned. The chief justice ordered me to read the record. I did so that is, of the third Tuesday of June, 1789; and stated the subsequent proceedings briefly. The chief justice then asked me whether I said (perhaps the word was "thought") there appeared any thing on the record to give the Supreme Court jurisdiction. My answer was, that, in my opinion, there was nothing of the sort; that such was the opinion I at first entertained; and that I never had a doubt, except from the court's granting the writ. You, being present, addressed the court and myself, in substance as you have stated.

I think I mentioned to the court the propriety of applying to them for the writ of error; and urged as a reason, that, on Pagan's application to Government, it had been recommended to him that he should make such application. Whether this was on Friday or Saturday, I do not recollect. One of the judges declared he had ever been of opinion that the court had not jurisdiction; but, as other members of the court thought the writ was grantable, he acquiesced. The writ was refused.

Thus, sir, you have the history of Pagan vs. Hooper, to the best of my recollection. Be pleased to accept my thanks for your favorable mention of abilities and integrity, and believe me your most obedient, humble

servant,

E. RANDOLPH, Esq.

EDWD. TILGHMAN.

MAY 14, 1793.

The Attorney General of the United States has the honor of submitting to the Secretary of State his opinion concerning the seizure of the ship Grange.

The essential facts are―

That the river Delaware takes its rise within the limits of the United States.

That, in the whole of its descent to the Atlantic ocean, it is covered on each side by the territory of the United States.

That, from tide-water to the distance of about sixty miles from the Atlantic ocean, it is called the river Delaware.

That at this distance from the sea it widens, and assumes the name of the bay of Delaware, which it retains to the mouth.

That its mouth is formed by the Capes Henlopen and May; the former belonging to the State of Delaware, in property and jurisdiction; the latter to the State of New Jersey.

That the Delaware does not lead from the sea to the dominions of any foreign nation.

That, from the establishment of the British provinces on the banks of the Delaware to the American revolution, it was deemed the peculiar navigation of the British empire.

That by the treaty of Paris, on the 3d day of September, 1783, his Britannic Majesty relinquished, with the privity of France, the sovereignty of those provinces, as well as of the other provinces and colonies.

And that the Grange was arrested in the Delaware, within the capes, before she had reached the sea, after her departure from the port of Philadelphia.

It is a principle, firm in reason, supported by the civilians, and tacitly approved in the document transmitted by the French minister, that to attack an enemy in a neutral territory is absolutely unlawful.

Hence, the inquiry is reduced to this simple form: whether the place of seizure was in the territory of the United States?

From a question originating under the foregoing circumstances, is obviously and properly excluded every consideration of a dominion over the sea. The solidity of our neutral right does not depend, in this case, on any of the various distances claimed on that element by different nations possessing the neighboring shore. But if it did, the field would probably

be found more extensive and more favorable to our demand than is supposed by the document above referred to. For the necessary or naturalTM law of nations, (unchanged as it is, in this instance, by any compact or other obligation of the United States,) will, perhaps, when combined with the treaty of Paris in 1783, justify us in attaching to our coasts an extent into the sea beyond the reach of cannon-shot.

In like manner is excluded every consideration how far the spot of seizure was capable of being defended by the United States; for although it will not be conceded that this could not be done, yet will it rather appear that the mutual rights of the States of New Jersey and Delaware, up to the middle of the river, supersede the necessity of such an investigation. No. The corner-stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the sea.

The high ocean, in general, it is true, is unsusceptible of becoming property. It is a gift of nature, manifestly destined for the use of all mankind--inexhaustible in its benefits-not admitting metes and bounds. But rivers may be appropriated, because the reverse is their situation; were they open to all the world, they would prove the inlets of perpetual disturbance and discord; would soon be rendered barren by the number of those who would share in their products; and, moreover, they may be defined. "A river, considered merely as such, is the property of the people through whose lands it flows, or of him under whose jurisdiction that people is." Grot. b. 2, c. 2, s. 12.

"Rivers might be held in property, though neither where they rise, nor where they discharge themselves, be within our territory, but they join to water above and below, or the sea. It is sufficient for us that the larger portion of water (that is, the sides) is shut up in our banks; and that the river, in respect of our land, is itself small and insignificant." Grot. b. 2, c. 3, s. 7. And Barbeyrac, in his note, subjoins, that neither of these is necessary.

"Rivers may be the property of whole States." Puff. b. 3, c. 3, s. 4. "To render a thing capable of being appropriated, it is not strictly necessary that we should enclose it, or be able to enclose it within artificial bounds, or such as are different from its own substance; it is sufficient if the compass and extent of it can be any way determined. And therefore Grotius hath given himself a needless trouble, when, to prove rivers capable of property, he useth the argument, that although they are bounded by the land at neither end, but united to the other rivers or the sea, yet it is enough that the greater part of them-that is, their sides-are enclosed." Puff. b. 4, c. 5, s. 3.

"When a nation takes possession of a country in order to settle there, it possesses every thing included in it, as lands, lakes, rivers, &c." Vattel, b. 1, c. 22, s. 266.

As

To this list might be added Bynkershoeck and Selden. But the dissertation of the former, De Dominio Maris, cannot be quoted in detachment; and the authority of the latter on this head may, in the judgment of some, partake too much of affection for the hypothesis of mare clausum. Selden, however, sinks in influence on this question, so must Grotius rise, who contended for the mare liberum ; and his accurate commentator, Rutherforth, confirms the principles in the following passage: "A nation, by settling upon any tract of land which at the time of such settlement

had no other owner, acquires, in respect of all other nations, an exclusive right of full or absolute property, not only in the land, but in the waters likewise that are included within the land, such as rivers, pools, creeks, or bays. The absolute property of a nation, in what it has thus seized upon, is its right of territory." 2 Ruth. b. 2, c. 9, s. 6.

Congress too have acted on these ideas, when, in their collection laws, they ascribe to a State the rivers wholly within that State.

It would seem, however, that the spot of seizure is attempted to be withdrawn from the protection of these respectable authorities, as being in the bay of Delaware, instead of the river Delaware.

Who can seriously doubt the identity of the river and bay of Delaware? How often are different portions of the same stream denominated differently? This is sometimes accidental; sometimes for no other purpose than to assist the intercourse between man and man, by easy distinctions of space. Are not this river and this bay fed by the same springs from the land, and the same tides from the ocean? Are not both doubly flanked by the territory of the United States? Have any local laws, at any time, provided variable arrangements for the river and the bay? Has not the jurisdiction of the contiguous States been exercised equally on both?

But suppose that the river was dried up, and the bay alone remained: Grotius continues the argument of the 7th section of the 3d chapter of the 2d book, above cited, in the following words:

"By this instance it seems to appear that the property and dominion of the sea might belong to him who is in possession of the lands on both sides, though it be open above as a gulf, or above and below as a strait; provided it is not so great a part of the sea, that, when compared with the land on both sides, it cannot be supposed to be some part of them. And now what is lawful to one king or people, may be also lawful to two or three, if they have a mind to take possession of the sea thus enclosed within their lands; for it is in this manner that a river which separates two nations has first been possessed by both, and then divided."

"The gulfs and channels, or arms of the sea, are, according to the regular course, supposed to belong to the people with whose lands they are encompassed." Puff. b. 4, c. 5, s. 8.

Valin in b. 5, tit. 1, p. 685, of his commentary on the marine ordonnance of France, virtually acknowledges that particular seas may be appropriated. After reviewing the contest between Grotius and Selden, he says: "S'il [Selden] s'en put donc tenir là, ou plutôt, s'il eut distingué l'ocean des mers particuliers, et même dans l'ocean l'etendue de mer qui doit être censée appartenir aux souverains des côtes qui en sont baigneés, sa victoire eut été complette."

These remarks may be enforced by asking, What nation can be injured in its rights by the Delaware being appropriated to the United States? And to what degree may not the United States be injured, on the contrary ground? It communicates with no foreign dominion; no foreign nation has, ever before, had a community of right in it, as if it were a main sea; under the former and present Governments, the exclusive jurisdiction has been asserted. By the very first collection law of the United States, passed in 1789, the county of Cape May, which includes Cape May itself, and all the waters thereof, (therefore within the jurisdiction of the State of New Jersey,) are comprehended in the district of Bridgetown. The whole of the State of Delaware, reaching to Cape Henlopen, is made one district. Nay,