whether the ship William, captured by the French schooner Citizen Genet, was taken in any place within the territory or protection of the United States.

In deciding upon facts of this kind, some rules must be adopted for ascertaining the competency of the evidence offered; and none appear more proper than those which prevail in the courts of admiralty, and which, being founded on general and universal principles, are essential to a safe and pure administration of justice.

Examining by this test the papers offered in evidence, scarcely any of them will be admissible.

Those offered by the consul of France consist of copies of depositions remaining in the consulate of France, made by Pierre Dalton, Thonias Connolly, and Daniel Osburn, all of them officers on board the Citizen Genet at the time of the capture of the ship.

Waiving, therefore, any objection arising from the want of the original depositions, these are evidently ex parte affidavits, made by persons directly interested in the event of the decision.

The evidence offered by the English consul (besides the deposition of James Legget) is-1st. A copy of the affidavit of John Whitesides, taken in the district court of Pennsylvania, on the bill filed by Finlay and others against the ship William, &c.; but I consider this as inadmissible, it being ex parte, and taken in a court which disclaims any jurisdiction of the cause. 2d. The depositions of John Williams and Thomas Butler, pilots, of Norfolk, in Virginia, taken ex parte, and certified by a public notary of that place. They are provisionally offered; but, for the cause aforesaid, are not competent evidence.

The only affidavit which remains is that of James Legget, the master of the ship William at the time of her capture. This appears to have been duly taken before B. Morgan, esquire, authorized for that purpose by the attorney of the United States for the district of Pennsylvania; and I am of opinion, that, according to the usage and principles of the court of admiralty, he is a competent witness; but how far his credibility may be af fected by his interest, is open for consideration.

Having, therefore, such slender evidence to proceed upon, I beg leave to request your opinion whether it is expected I should report upon the facts as they appear upon this single affidavit; and also to suggest for your consideration the propriety of communicating to the parties concerned the incompetency of the evidence that is offered, before any further proceedings are had.

I have the honor, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

RESPECT DUE TO CONSULS.

A riot before the house of a foreign consul by a tumultuous assembly, requiring him to give up certain persons supposed to be resident with him, and insulting him with improper language, is an offence not within the act of the 30th of April, 1790, for the punishment of certain crimes against the United States.

A consul is not a public minister, nor entitled to the privilege attached to the person of such an officer. As the law now stands, the offence in question cannot be legally prosecuted in the Cours of the United States. If, however, the grand jury will present the offence in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination.

PHILADELPHIA, February 20, 1794.

SIR: By the correspondence between the British consul at Norfolk and the attorney of the United States for the district of Virginia, which you transmitted to me for consideration, it appears that a question has arisen, whether a riot committed by a number of persons tumultuously assembled before the house of a foreign consul, requiring him to deliver up certain persons supposed to be resident with him, and insulting him with improper language, can be the subject of prosecution in the courts of the United States. I have now the honor to state to you my opinion on that point, agreeably to your request.

Upon the best consideration I can give the subject, I am satisfied that this offence is not within the act of the 30th April, 1790, for the punishment of certain crimes against the United States. The only section which in any degree relates to it, is that which prescribes the punishment "for any infraction of the laws of nations, by offering violence to the person of an ambassador or other public minister:" but this cannot reach the offence in question, because it is now fully settled that a consul is not a public minister. He is not considered as such by the writers on the law of nations, because he is not in any degree invested with the representative character; and it has, more than once, been judicially determined that he is not entitled to the privileges attached to the person of every public minister. The constitution of the United States also distinguishes between them, where it extends the judicial power "to all cases affecting ambassadors, other public ministers, and consuls." The same distinction is carefully observed in the 13th section of the act establishing the judicial courts of the United States.

An argument in favor of the jurisdiction of these courts over offences of the kind in question, seems to result from the clause in the constitution just referred to; but it may be observed, that these words (sufficiently indefinite in themselves) have received a construction, and seem to be limited to prosecutions "or suits against consuls," and to "suits in which a consul shall be a party." It may be further remarked, that by the constitution the Supreme Court is to have original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls." If this be construed necessarily to include criminal offences against consuls, it would, as the courts are constituted, defeat the provisions of the very next clause, which directs "that all crimes shall be tried in the State where they are Committed."

I therefore coincide in opinion with the district attorney, that, as the law now stands, the offence in question cannot be legally prosecuted in the courts of the United States. But, sir, if the party injured is advised or believes that the federal courts are competent to sustain the prosecution, I conceive he ought not to be concluded by my opinion or that of the district attorney. If he desires it, he ought to have access to the grand jury with his witnesses; and if the grand jury will take it upon themselves to present the offence in that court, it will be the duty of the district attorney

to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination.

I have the honor, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

DUTIES OF DISTRICT MARSHALS.

Marshals are not required by law to execute the sentence of a French consul, arising under the 12th article of the convention with his Most Christian Majesty and the United States.

NEW YORK, March 6, 1794.

I HAVE considered the twelfth article of the convention between his late Most Christian Majesty and the United States of America, and also the act of Congress concerning consuls and vice-consuls, as far as it prescribes the duty of the marshals of the United States; and it is my opinion that the marshals are not bound by law to execute any sentence of a French consul, arising under the said article.

RICH. HARRISON,

Attorney United States for the New York District.

PHILADELPHIA, March 14, 1794.

I have considered the convention and acts above referred to, and I perfectly coincide in the opinion given by the attorney of the United States for the district of New York.

WM. BRADFORD.

PATENTS FOR LANDS IN VINCENNES.

The act of 3d March, 1791, directing the laying out of tracts to inhabitants of Vincennes, did not authorize either the President or the governor to make any conveyances for the allotments; and if patents are necessary to confirm the titles, it yet remains with Congress to direct by whom they shall be issued.

MARCH 25, 1794.

SIR: In answer to your inquiry whether the President of the United States, or the governor of the Western Territory, ought to issue patents for the lands granted to the inhabitants of Vincennes, upon the Wabash river, I have now the honor to state to you my opinion.

It appears that Congress, by their resolve of the 20th June, 1788, directed that three tracts of land should be laid out in the form of parallelograms, for the benefit of these inhabitants; which were to be distributed among them by lot, in the proportion of 400 acres for each family, and immediate possession given; but no title could be acquired until they had resided thereon three years from the time of such distribution.

By the act of 3d March, 1791, the governor of the Western Territory is "directed to lay out three tracts of land, agreeably to the said act of 20th June, 1788;" but he is not authorized to make any conveyances or patents to the settlers for their respective allotments.

It is remarkable that he is empowered to carry the first part of the said resolve into complete effect, and to confirm the title of the settlers to other lands claimed by them; and, also, to make grants of land, not exceeding 100 acres, to certain settlers who had not obtained any donation land under the former acts. The opinion of Congress may therefore be inferred, that the governor of the Western Territory is the proper officer to issue the patents or grants in question; but if that was their opinion, they have not expressed it; nor are the words of the act broad enough to implicate any such power.

I am also of opinion that there is nothing in the constitution or laws that invests the President with authority to issue patents to these settlers. If, therefore, patents are thought necessary to confirm the titles which the individuals have acquired by allotment and residence, agreeably to the provisions of the resolve of the 20th June, 1788, it remains with Congress to direct by whom they shall be issued.

I have the honor to be, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

PATENTS UNDER THE ACT OF 1787.

Persons having land allotted them under the act of 29th August, 1787, are not entitled to patents until provision shall be made for issuing them.

APRIL 29, 1794.

SIR: I perceive, by the letter of the secretary of the Western Territory, that the settlers who are desirous of obtaining patents for their donation lands are not those referred to in my letter of the [25th March,] but such as are entitled, and have had them laid out, under the resolve of Congress of the 29th August, 1787. These persons, however, are in the same situation as the former, so far as relates to a confirmation of their rights by patent: there being no authority for granting patents to them vested either in the President or in the governor of the Western Territory. I have the honor to be, &c.,

To the SECRETARY OF STATE.

WM. BRADFORD.

SUITS AGAINST FOREIGNERS.

The late governor of Guadaloupe, who had caused a vessel to be seized and condemned by authority assumed as such officer, being prosecuted in the court of Pennsylvania, whilst here as a prisoner of war, on parole, is not more exempt than any other foreigner (not a public minister) from suit and arrest.

If the circumstances attending the seizure were such as will constitute a defence, they must be peaded in the action. If the seizure were an official act, done by the defendant under color of the powers vested in him as governor, they will be an answer, as the extent of defendant's authority can be determined only by the constituted authorities of his own nation.

PHILADELPHIA, June 16, 1794.

SIR: I have attentively considered the request made by the minister of the French republic, that the suit commenced in the court of this State

against the late governor of Guadaloupe may be stopped. The ground of this request is, that the cause of action arose from the seizure and condemnation of a vessel, made at Guadaloupe, under the authority of the governor, by virtue of the powers vested in him as such. It is added, that the governor arrived here as a prisoner of war to the British forces, (on parole;) and that his voyage to France is prevented only by the arrest which has been made.

From this state of facts, it does not appear to me that the defendant has any legal claim to be privileged from arrest; nor have the judges, on that ground, any power to stay the proceedings against him, without the consent of the plaintiff. With respect to his suability, he is on a footing with any other foreigner (not a public minister) who comes within the jurisdiction of our courts. If the circumstances stated form of themselves a sufficient ground of defence, they must, nevertheless, be regularly pleaded; and the court will not hear them upon motion, for the purpose of quashing the writ or setting aside the arrest.

But, sir, if his being obliged to give bail be the circumstance which prevents his departure for France, it is probable he may be relieved from it, by citing the plaintiff before a judge of the court from whence the writ issued, to show his cause of action. I am inclined to think, if the seizure of the vessel is admitted to have been an official act, done by the defendant by virtue, or under color, of the powers vested in him as governor, that it will of itself be a sufficient answer to the plaintiff's action; that the defendant ought not to answer in our courts for any mere irregu larity in the exercise of his powers; and that the extent of his authority can, with propriety or convenience, be determined only by the constituted authorities of his own nation. If this principle can be made evident to the judge, he will discharge the defendant from his bail, and the plaintiff would probably prosecute his suit no further.

But, be this as it may, it is evident that this is not a case for the interposition of the government; and that Mr. Collot must defend himself by such means as his counsel shall advise.

I have the honor, &c.,

To the SECRETARY OF STATE.

HABEAS CORPUS.

WM. BRADFORD.

A writ of habeas corpus may be awarded to bring up an American subject unlawfully detained on board a foreign ship-of-war; the commander being fully within the reach of, and amenable to, the actual jurisdiction of the State where he happens to be.

JUNE 24, 1794.

THE Attorney General has the honor to report to the Secretary of State that he has not been able to meet with any case in the English reports, from which it appears that a habeas corpus has been actually awarded to bring up an English subject illegally detained on board a foreign ship of war. Whether this be owing to no such detention having taken place, or to any modern courtesy of applying to the minister of the proper nation, before redress is sought in the usual course of law, the Attorney General cannot determine; but he is satisfied that a British subject, detained on