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pediency, have prevented the committee from making those disclosures the basis of any proceeding against him. And from the careful concealment, on his part, of every circumstance which could lead to the discovery and punishment of any individuals within the United States (should there be any such) who were criminally connected with him, no distinct object was presented to the committee by his communication, for the exercise of the power with which they were invested, of sending for persons and papers. On being informed, however, that there was a foreigner in the city of Washington, who lately came to this country, from Europe, with Henry, and was supposed to be in his confidence, the committee thought proper to send for him. His examination, taken under oath and reduced to writing, they herewith submit to the house.
The transaction disclosed by the president's message presents to the minds of the committee conclusive evidence that the British government, at a period of peace, and during the most friendly professions, have been deliberately and perfidiously pursuing measures to divide these states; and to involve our citizens in all the guilt of treason, and the horrors of a civil war. It is not however the intention of the committee to dwell upon a proceeding, which, at all times, and among all nations has been considered as one of the most aggravated character; and which, from the nature of our government, depending on a virtuous union of sentiment, ought to be regarded by us with the deepest abhorrence.
CASE OF THE
THIS interesting cause was argued in the Supreme Court of the United States, in February, 1812, by Mr. Dallas, Attorney of the United States for the district of Pennsylvania, and Mr. Pivkney, Attorney General of the United States, upon one side, and by Mr. Hare of Philadelphia, and Mr. Harper of Baltimore, upon the other. The case was this—on the 24th of August 1812, Johp. M-Fadon and William Greetham, of the state of Maryland, filed their libel in the district court of the United States, for the district of Pennsylvania, against the schooner Exchange, setting forth that they were her sole owners, on the 27th of October 1809, when she sailed from Baltimore, bound to St. Sebastians in Spain. That while lawfully and peaceably pursuing her voyage, she was on the 30th of December 1810, violently and forcibly taken by certain persons, acting under the decrees and orders of Napoleon emperor of the French, out of the custody of the libellants, and" their captain and agent, and was disposed of by those persons, or some of them, in violation of fhe rights of the libellants, and of the
laws of nations in that behalf. That she had been brought into the port of Philadelphia and was then in the jurisdiction of thatcourt> in possession of a certain Denis M. Begon, her reputed captain or master. That no sentence or decree of condemnation had been pronounced against her, by any court of competent jurisdiction; but that the property of the libellants in her remained unchanged and in full force. They therefore prayed the usual process of the court to attach the vessel and that she might be restored to them.
Upon this libel the usual process was issued returnable on the 30th of August 1811, which was executed and returned accordingly, but no person appeared to claim the vessel in opposition to the libellants. On the 6th of September the usual proclamation was made for all persons to appear and show cause why the vessel should not be restored to her former owners, but no person appeared.
On the 13th of September, a like proclamation was made, but no appearance was entered.
On the 20th of September, Mr. Da/las, the attorney of the United States, for the district of Pennsylvania, appeared, and (at the instance of the executive department of the government of the United States, as it is understood) filed a suggestion, to the following effect:
Protesting that he does not know, and does not admit the truth of the allegations contained in the libel, he suggests and gives the court to understand and be informed,
That inasmuch as there exists between the United States of America and Napoleon, emperor of France and king of Italy, &c. Sec. a state of peace and amity; the public vessels of his said imperial and royal majesty, conforming to the laws of nations, and laws of the said United States, may freely enter the ports and harbors of the said United States, and at pleasure depart therefrom without seizure, arrest, detention or molestation. That a certain public vessel described and known as the Balaou, or vessel, No. S, belonging to his said imperial and royal majesty, and actually employed in his service under the command of the Sieur Begon, upon a voyage from Europe to the Indies, having encountered great stress of weather upon the high seas, was compelled to enter the port of Philadelphia, for refreshment and repairs, about the 22d of July 1811. That having entered the said port from necessity and not voluntarily; having procured the requisite refreshments and repairs, and having conformed in all things to the law of nations, and the laws of the United States, was about to depart from the said port of Philadelphia, and to resume her voyage in the service of his said imperial and royal majesty, when on the 24th of August 1811, she was seized, arrested and detained in pursuance of the process of attachment issued upon the prayer of the libellants. That the said public vessel had not, at any time, been violently and forcibly taken or captured from the libellants, their captain and agent on the high seas as prize of war, or otherwise; but that if the said public vessel, belonging to his said imperial and royal majes
ty as aforesaid, ever was a vessel navigating under the flag of the United States, and possessed by the libellants, citizens thereof, as in their libel is alleged (which nevertheless the said attorney does not admit) the property of the libellants, in the said vessel was seized and divested, and the same became vested in his imperial and royal majesty, within a port of his empire, or of a country occupied by his arms, out of the jurisdiction of the United States, and of any particular state of the United States, according to the decrees and laws of France, in such case provided. And the said attorney submitting, whether, in consideration of the premises, the court will take cognizance of the cause, respectfully prays that the court will be pleased to order and decree that the process of attachment, heretofore issued, be quashed; that the libel be dismissed with, and that the said public vessel, her costs, tackle, &c. belonging to his said imperial and royal majesty be released, &c. And the said attorney brings here into court the original commission of the said Sieur Begem, &c.
On the 27th of September 1811, the libellants filed their answer to the suggestion of the district attorney, to which they except, because it does not appear to be made for or on behalf, or at the instance of the United States, or any other body politic or person.
They aver that the schooner is not a public vessel belonging to his imperial and royal majesty, but is the private property of the libellants. They deny that she was compelled by stress of weather to enter the port of Philadelphia, or that she came otherwise than voluntarily; and that the property of the libellants in the vessel never was divested, or vested in his imperial and royal majesty within a port of his empire or of a country occupied by his arms.
The district attorney produced the affidavits of the Sieur Begon and the French consul verifying the commission of the captain, and stating the fact, that the public vessels of the emperor of France never carry with them any other document or evidence that they belong to him, than his flag, the commission, and the possession of officers.
In the commission, it was stated that the vessel was armed at Bayonne.
On the 4th of October 1811, the district judge dismissed the libel with costs, upon the ground that a public armed vessel of a foreign sovereign, in amity with our government is not subject to the ordinary judicial tribunals of the country, so far as regards the question of title by which such sovereign claims to hold the vessel.
From this sentence the libellants appealed to the Circuit Court, where it was reversed, on the 28th of October 1811. The decision of the court was as follows.
Washington J. This is an appeal from the District Court, in a case of admiralty and maritime jurisdiction. The libel states that the schooner which constitutes the subject of the suit, called the Exchange, was, on the 27th of October, 1809, the property of the libellants, and was duly registered in their names. That in the same month and year, she was fitted out by the libellants and sailed on a voyage to St. Sebastians, in Spain, and was in December following forcibly seized under certain edicts of the emperor of France, and without the sanction of any sentence of condemnation, disposed of in violation of the rights of the libellants and of the law of nations. That the libellants have never transferred their right to the said vessel, and that she is now within the territory and jurisdiction of the United States and the jurisdiction of the court.
To this libel a suggestion was filled by A. J. Dallas, district attorney of the United States, for this district, setting forth that this vessel, which in the suggestion is called the Balaou, No. 5, belonging to the emperor of France and king of Italy, and actually employed in his service, under the command of the Sieur Bigon, upon a voyage from Europe to the Indies, having encountered great stress of weather, had been compelled to enter the port of Philadelphia for repairs, and having conformed to the laws of nations and the United States, was about to depart, when she was arrested by the progress of the district court. The suggestion then denies that this vessel had been violently captured from the libellants on the high seas as prize or otherwise, but asserts that she was seized and the property in her was divested out of the libellants (if they ever had any in her) and vested in his imperial dhd royal majesty, in a port of his empire, according to the laws of France. Upon the suggestion of these facts, it is then submitted, whether the court outfit to take cognizance of the cause. The replication after excepting to the suggestion as not being made by any person claiming the said vessel, supports the allegations of the libel and negatives those set forth in the suggestion.
An objection is made to the mode of proceeding in this case. It is contended that no person ought to be admitted to contest the right of the libellants, or to interpose in any manner to prevent a decision upon their right, but one who claims the property either for himself, or on behalf of some other, and that the district attorney has not stated in his suggestion that he claims, or even appears for himself, for the United States, for the French emperor, or for any other person.
I understand from the opinion and decree of the judge of the istrict court, that the district attorney, when he filed the suggestion stated, that he did so at the request of the executive department of the general government, to whom an application and representation had been made, by the French minister, containing a protest and denial of the allegations of the libel; and further that the suggestion in this case is substantially agreeable to the form usually practised upon, when the executive department thinks it incumbent on it to give information through the law officer of tbe district to that court of any matters subject to its judicial cognisance, which come to the knowledge of the executive in the course of its communications with foreign powers or their agents. I do not feel disposed to disturb this practice, being of opinion that the department of our government charged with the care of our foreign relations should be admitted in some way or other to give such information upon subjects which concern the peace of the nation, or which the executive deems essential for the public good to communicate in this way. The proceeding would certainly have been more regular if the reason of filing the suggestion had been stated on the face of it, as the court would certainly not listen to the impertinent and officious suggestions of any person who might think proper to interfere. But the responsible character attached to the public law officers of the United States' courts, forbids the supposition that they act without authority when they declare the contrary to the court.
In other countries, communications from the government to the courts of admiralty are generally made in the form and with the effect of mandates, which the judge finds himself compelled to obey. Such is not the present condition of any court in the United States, and 1 trust never will be. If a legal objection to the jurisdiction of the court appears on the face of the record, it will not be denied but that the district attorney, or any other person as an amicus curt* may properly point it out. But if the objection arises from facts not so appearing, the district attorney, thus intrusted to file a suggestion, must establish the facts by proof in the same manner as in ordinary cases between private individuals. Accordingly, that officer has in the present case proceeded to support the allegations of the suggestion by exhibiting the commission of the officer commanding this vessel, granted by the emperor of France, authenticated by the depositions of the commander himself, and of the French vice-consul.
The evidence has been objected to by the appellant's counsel. It is said that the officer found in possession of the vessel ought not to be admitted by his own evidence to justify and maintain that possession, and that the testimony of neither of the witnesses ought to be regarded, because the libellants were denied the privilege of cross examining them. The objection to the competency of the sieur Bigon is certainly not a good one, since he claims no interest whatever in the vessel, and no circumstance has appeared to bring his credit into question. There can be no doubt of the right of the libellants to cross examine these witnesses, and I must presume (even if the presumption were not supported by the declaration of the district judge) that the privilege of cross examining was not denied by the court; because if it had been, an exception would certainly have been taken to the opinion. But if an error of this sort had been committed by that court, it might have been repaired at the trial in this court; yet no attempt was made to examine these or any other witnesses.
The facts which I consider as proved by the evidence in the cause are, that this vessel, called in the libel the Exchange, is a public armed vessel, claimed by the emperor of France, in the