the end that this article may be carried into full execution according to justice and its true intent.

I have the honor, &c., &c.,

To the PRESIDENT OF THE UNITED STATES.

CHARLES LEE.

EXTRADITION.

A requisition from the British minister is not authorized by the 27th article of the treaty of 1794, unless the persons demanded are charged with murder or forgery committed within the jurisdiction of Great Britain.

PHILADELPHIA, March 14, 1798.

SIR: I have considered the affidavits of William Brigstock, alias John Johnson, and Yellis Mandeville. Neither of these states where the crime of murder or piracy was committed,-whether within the jurisdiction of England or any of the British dominions, or whether on the high seas. I have supposed the latter; and if this be the fact, it is plain that the requisition of the British minister is not authorized by the 27th article of the treaty of 1794, which is confined expressly to persons who are charged with murder or forgery committed within the jurisdiction of either nation, and who seek refuge in the other-meaning their terri torial jurisdiction, respectively.

The criminal tribunals in the United States are fully competent to try and punish persons who commit murder on the high seas, or piracy, as may appear from the 8th, 9th, and 10th sections of the act of 30th April, 1790. One of the persons (Brigstock) is a citizen of the United States; and it is not to be reasonably expected that his country will not exercise the right of trying him, as he is already in the hands of its officers of justice. The other two, perhaps, are citizens also, and entitled to the like treatment exactly that Brigstock is. But, supposing them to be foreigners, the stipulation in the 27th article is not applicable to their case; and as they are triable in the courts of the United States, and in the custody of our laws for trial, I deem it more becoming the justice, honor, and dignity of the United States, that the trial should be in our courts.

Suppose it was not the British nation, (whose system of jurisprudence is humane, fair, and just,) but the French, Spanish, or Prussian, that had made the requisition: would it be right to comply with it? I think not; and on a matter of this kind, the same measure should be ineted by us to all nations, especially where our own citizens are concerned, and treaties do not require a different rule.

I think the evidence of that kind, that the prisoners should be commit ted for trial in New Jersey; and it is my sincere wish that, if guilty of the horrid crime of which they are accused, they may be convicted, and may suffer the punishment of our law.

I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.

TREASON.

It is treason for a citizen or other person, not commissioned within the United States, to abet France during a maritime war with her.

BUCK TAVERN, August 21, 1798.

SIR: Having taken into consideration the acts of the French republic relative to the United States, and the laws of Congress passed at the last session, it is my opinion that there exists not only an actual maritime war between France and the United States, but a maritime war authorized by both nations. Consequently, France is our enemy; and to aid, assist, and abet that nation in her maritime warfare, will be treason in a citizen or any other person within the United States not commissioned under France. But in a French subject, commissioned by France, acting openly according to his commission, such assistance will be hostility. The former may be tried and punished according to our laws; the latter must be treated according to the laws of war.

I have thought it my duty to make this communication in consequence of the information you received from Rhode Island, of the intentions of a Frenchman, whose name I do not now call to mind, who is said to be somewhere in this country, on the business of buying ships and supplies of a military kind, for the West Indies. He should be apprehended and tried as a traitor, unless he has a commission, and acts according to it; in which case he should be treated as an enemy, and confined as a prisoner of war.

I have the honor, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.

PRIZE SHIP AND CREW-HOW TO BE DISPOSED OF.

If the prize be a pirate, the officers and crew are to be prosecuted in the circuit court of the United States without respect to the nation to which each individual may belong.

If it be regularly commissioned as a ship of war, the officers and crew are to be detained as prisoners, except such as are citizens of the United States.

Citzens of the United States who aid a nation with whom we are at war on the high seas, against the United States, are guilty of treason.

Offenders against the United States may be arrested, imprisoned, or bailed, agreeably to the usual mode of process in a State, but can be tried only before the court of the United States having cognizance of the offence.

Proceedings against the ship and cargo are to be had before the district court of the United States, according to the laws of Congress and the usage and practice of courts of admiralty in prize causes.

ALEXANDRIA, September 20, 1798. SIR: I take the liberty of writing to you on an interesting subject, concerning which you will perhaps hear from the Secretary of State. According to the account given in the Norfolk paper of the 15th, it seems propable that the ship Nigre, prize to the Constitution, will be found to be a pirate. If, after due inquiry, (which you are requested to make, and for that purpose to go to Norfolk,) it shall appear to be the case, the officers and crew, and all others on board having any agency in the ship, are to be prosecuted (witnesses excepted) in the circuit court of the United

States for the district of Virginia, according to the laws of the United States, without respect to the nation to which each individual may belong, whether he be British, French, American, or of any other nation.

On the other hand, if the ship is regularly commissioned and authorized by France as a public or private ship of war, all the officers and crew are to be detained as prisoners, at the expense of the United Statesexcept such as are citizens of the United States, or of some one of them, who may be tried for treason in adhering to, and aiding, the enemies of the United States. After mature consideration of the decrees of France, and of the laws of the United States, and the conduct of each nation to the other, it is my opinion that the two nations are in a state of maritime war; and, consequently, that the citizens of the United States who aid and adhere to France in acts of hostility on the high sea, against the United States and their fellow-citizens, are guilty of treason. Perhaps this opinion may be found erroneous; if so, such citizens, if acquitted of treason, may be indicted for felony, under the 9th section of the act passed 30th April, 1790, entitled "An act for the punishment of certain crimes against the United States."

I conceive the law of Virginia, which requires the examination before a county or corporation court of criminals triable in the State courts, does not apply to criminals triable before the courts of the United States in the Virginia district. Upon this point, reference may be had to the 23d section of the 20th chapter of the acts of Congress of 1789. By this section, an offender against the United States is, agreeably to the usual mode of process against offenders in such State where he is found, to be arrested and imprisoned, or bailed, as the case may be, for trial before the court of the United States having cognizance of the offence. The arrest is to be agreeably to the usual mode of process in the State; the imprisonment or bailment is also to be agreeably to the usual mode of process in the State; but the trial is to be only before the court of the United States having cognizance of the offence. The examination preparatory to the trial is to be before a magistrate, who is to send to the clerk's office of the court copies of the process and the recognizances of the witnesses, for their ap pearance to testify. To admit a different construction of this section, would be to admit a different mode of trial of the same offence against the United States, in their courts, as it might happen to be cognizable in one district or in another; for the examination before a county or corporation court, according to the law of Virginia, is a species of trial that gives of acquittal unknown in other States. Besides, the text of the Virginia law seems to be confined to offenders amenable to the courts of the State. Against the ship and cargo, proceedings are to be had before the district court of the United States in Virginia, according to the laws of Congress and the usage and practice of courts of admiralty in prize causes.

It will afford me satisfaction to receive from you a statement of facts relative to this ship, and your ideas on the matters of law which have been the subject of these remarks.

I am, &c., &c.,

TO THOMAS NELSON, Esq.,

District Attorney U. S., Yorktown, Virginia.

CHARLES LEE.

SERVICE OF PROCESS ON A BRITISH SHIP-OF-WAR.

It is lawful to serve either civil or criminal process upon a person on board a British man-ofwar lying within our territory.

MARCH 11, 1799.

The Attorney General most respectfully reports to the President of the United States, as follows:

The incidents relative to his Britannic Majesty's packet Chesterfield, commanded by Captain Jones, are understood to produce a question whether judicial process may be lawfully served on board a public shipof war belonging to his Britannic Majesty, lying alongside a wharf in the city of New York, within the territorial jurisdiction of the State of New York.

This question is deemed of great moment to be rightly settled; and, therefore, it has been very maturely considered with reference to the general laws of nations, the treaty of London between the United States and Great Britain, and the laws and usages of the United States.

It may be assumed, as a doctrine perfectly and incontrovertibly established, that the judicial power of a nation extends to every person and every thing in its territory, excepting only such foreigners as enjoy the right of extraterritoriality, and who, consequently, are not looked upon as temporary subjects of the State. "The empire, united to the domain, establishes the jurisdiction of the nation in its territories or the country that belongs to it. It is that, or its sovereign, who is to exercise justice. in all the places under his obedience, to take cognizance of the crimes committed, and the differences that arise in the country."-Vattel, b. 2, sec. 84. "When a nation takes possession of certain parts of the sea, it enjoys the empire as well as the domain, for the same reason we have alleged in treating of land. These parts of the sea are within the jurisdiction or the territory of the nation; the sovereign commands there; he makes laws, and may punish those who violate them; in a word, he has the same rights there as on land, and, in general, all those given him by the law of the State."-Vattel, b. 1, sec. 295.

"In general, all the rights which relate to the internal government be- . long absolutely to the sovereign, and extend to every person and every thing in the territory."-Martens, b. 3, ch. 3, sec. 1. "The supreme police extends to every person and every thing in the territory: foreigners are subject to it, as well as the subjects of the State, excepting only such foreigners as enjoy the right of extraterritoriality, and who, consequently, are not looked upon as temporary subjects of the State."-Idem, sec. 3, p. 85. "One of the most essential rights in the hands of the sovereign, is the judiciary power. It extends indiscriminately to all who are in the territory, and the sovereign only is the source of it; but it must be remembered that there are persons whose extraterritoriality exempts them from this jurisdiction, such as foreign princes and their ministers, with their retinue."-Idem, sec. 19, p. 102.

According to the general rule established by these citations, every ship, even a public ship-of-war of a foreign nation, at anchor in the harbor of New York, is within the territory of the State of New York, and subject to the service of judicial process. If an exemption from this rule is claimed by a foreign ship-of-war, it is incumbent on such ship to set forth

and maintain clearly and satisfactorily its right to the exemption, or it must be deemed within the general rule. The officers and crew of a public ship-of-war, being admitted into the United States, are entitled to be treated with hospitality and kindness; but this does not, in reason, require that the ship should be exempt from judicial process; and more especially when they are bound by every kind of obligation to act in conformity to the laws of the country which affords them and their ship its sovereign protection while within its jurisdiction.

It is expressly provided by the twenty-third article of the treaty of London, that "the ships-of-war of each of the contracting parties shall at all times be hospitably received in the ports of the other; their officers and crews paying due respect to the laws and government of the country. This is conceived to be declaratory of the usage of nations; and here it may be observed, that hospitality, which includes protection, is to be enjoyed upon condition that the laws and government of the country are respected. To disobey judicial process authorized by law, or to resist it, on board of the ship, is inconsistent with a due respect to the laws and government of the country. The article further stipulates that "the officers shall be treated with that respect which is due to the commission which they bear; and, if any insult should be offered to them by any of the inhabitants, all offenders in this respect shall be punished as disturbers of the peace and amity of the two countries."

Here the two nations seemed to have defined the benefits and favors to be reciprocally enjoyed by the officers and crews of the ships-of-war of each, when in the territory of the other; and, from the omission to stipu late an exemption from legal process while on ship-board, it may be inferred such exemption was not to be expected.

By the seventeenth section of the act of the 4th August, 1790, it is made unnecessary to report and enter at the custom-house any ship-ofwar, or any ship employed by any prince or state as a public packet for the conveyance of letters and despatches, not permitted by the laws of such prince or state to be employed in the transportation of merchandise in the way of trade; and, pursuing the spirit of this law, the President's instructions, dated 4th of August, 1793, to the custom-house officers, forbid them to inspect any vessel of war in the immediate service of the government of a foreign nation until further order; declaring, for a reason, that the propriety of inspecting such a vessel was not without question in reference to the usage of nations.

In the summer of 1794, under the authority of the collector of New York, some of the officers of the custom-house, as the affair was represented by the French minister to the American government, entered on board the ship Favorite, a national ship of war of France, and seized arms and ammunition on board of her belonging to the French republic, sus. pected to be intended for exportation, contrary to law, and insulted the French flag in an outrageous manner. Mr. Fauchet complained of this proceeding as an infraction of the law of nations, which nothing could justify, and demanded justice of the authors. The President answered, that he highly disapproved that a public vessel of war, belonging to a foreign nation, should be searched by officers of the customs upon a suspi cion of illicit commerce; that the ground of suspicion should have been represented to the consul of that nation, or the commander of the vessel; and that general instruction would be given to pursue this course in fu