It would seem to be incontestible, that the principle asserted by the United States which indeed is an unquestionable principle, has been admitted in its utmost latitude by France. It is believed that in the execution of this principle, the government and tribunals have only been guided by a sense of duty and the obligations of justice. If in any case that can be selected, wrong has unintentionally been committed, that wrong has grown inevitably out of the situation of the United States, and of the conduct of persons they have been unable to controul and will with readiness be corrected.

2dly. That against the textual sense of the treaty, the government has permitted the ships of the enemy to come to in their ports, after having captured property or vessels belonging to french citizens.

It is to be regretted, that you have not been pleased to state some particular case, if the case be founded on a fact, which has manifested this permission : or if it be founded in principle, the precise difference between the construction given by the President of the United States to the article of the treaty of the 6th of February, 1778, relative to this subject, and that for which you may contend. For the want of such a guide, the undersigned may discuss unnecessary points, without giving you complete satisfaction on which in your mind may constitute the real difficulty.

that

The 17th article is in these words: "It shall be lawful for the ships of war of either party and privateers freely to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or other judges; nor shall such prizes be arrested or seized when they come to or enter the ports of either party, nor shall the searchers or other officers of those places, search the same or make examaination concerning the lawfulness of such prizes; but they may hoist sail at any time and depart, and carry their prizes to the places expressed in their commissions, which the com

their previous treaties had not stipulated advantages of imposed disabilities.

They could not refuse to one belligerent power those rights of ordinary hospitality which were enjoyed by others, which the common usages of nations permit, and which were forbidden by no particular treaty. Such refusal would have been manifestly partial, and a plain departure from that neutral position in which the United States found themselves, and which good faith, integrity, and their best interests impelled them religiously to maintain. Thus circumstanced, it was the duty of the government to give its true construction to a treaty granting advantages to one of the belligerent powers, and imposing disabilities on another. In searching for this true construction, its best judgment ought to be exercised, and the dictates of that judgment ought to be obeyed. The United States have done so. They have refused shelter in their ports to the prizes made on the French Republic, or to the ships of war belonging to the enemy and accompanying such prizes.

They have permitted ships of war, not bringing prizes with them, to remain in their ports, without instituting tribunals to enquire whether such ships have at any time captured French citizens or French property. The reasoning on which this decision was founded, and which appears to the undersigned to have been conclusive, will not now be repeated. It has been detailed in several letters from the Secretary of State of the United States to the Minister of France in Philadelphia. -The undersigned will only observe, that the construction supposed to be just, and for that reason actually put upon the article, is believed to be more favourable than the literal construction to the interests of France.

Ships of war which have made prizes on this Republic, if they enter the ports of the United States without such prizes, ought indeed, under the letter of the article, to be ordered to depart as soon as the fact can have been ascertained; but the prizes themselves are per

manders of such ships of war shall be obliged to show : on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people or property of either of the parties; but if such shall come in, being forced by stress of weather, or the dangers of the sea, all proper means shall be vigorously used that they go out and retire from thence as soon as possible."-Do you contend, citizen minister, that this article ought to be rigidly construed according to its letter? If you do, it becomes necessary to ascertain what are the disabilities to which its letter really subjects the vessels belonging to the enemies of France. They are 1st. That no shelter or refuge shall be given in the ports of the United States to the ships of war or privateers belonging to the enemy, which shall have made prize of the subjects, people or property of France.-2dly. That if such ships of war or privateers shall come in, being forced by stress of weather or the danger of the seas, all proper means shall be vigorously used that they go out and retire from thence as soon as possible.

The letter of the article does not exclude generally the ships of war belonging to the enemy, but those only which have made prize of the subjects, people or property of France. That the vsssel shall have made a prize is a part and an essential part of the description. Whether the vessel be or be not within this description is a fact, the ascertainment of which must precede the measures to be taken in consequence of that fact. When the fact shall have been ascertained, the letter of the article denies refuge or shelter to the ship of war or privateer, but not to the prize which may have been made. You well know, citizen minister, that if the letter of the article is to be set up against its spirit, when the former is most favourable to the views of France, the letter must still be adhered to, though it should counteract those views. The situation of the United States bound them to observe, between the belligerent powers, an exact neutrality in all cases where

a ship of war entering without a prize, is permitted to remain, but all shelter is refused to a ship of war which is accompanied by a prize, and also to the prize itself. It would seldom happen that a ship of war, not driven in by stress of weather, or the danger of the seas, would wish to continue in port longer than the time which would unavoidably be consumed in ascertaining the fact of her having made a prize, but it must often happen, that a prize now excluded from the ports of the United States, would find shelter in them if the literal construction of the treaty should be adopted.

This exposition given by the United States to this article was made known in 1793---France has never signified a wish that the literal construction throughout should be pursued: This strengthens the opinion entertained by the undersigned, that the rule on this subject, so early established by the American Government, is considered by the Republic as more favourable to its interests, than a rule conforming entirely to the letter of the article.

3dly. "The Government of the United States has ordered the arrest of a national corvette * anchored in the port of Philadelphia, and the arrestation has been extended to the Captain commandant."

The undersigued beg leave to state the case which is the foundation of this complaint. In the statement itself they trust will be found a complete justification of the conduct of the United States.

The Cassius, under the name of "Les Jumeaux," was fitted and armed for a vessel of war in the port of Philadelphia, in violation of a law of the United States. In December, 1794, having escaped from the port to descend the river, orders were given to the militia of the State of Delaware to intercept her. The attempt was made and failed. The crew of Les Jumeaux, which was unexpectedly found to be very numerous, resisted the officers who went on board, manned their cannon and brought them to bear on the cutter in which the

militia, about forty in number, were embarked. Their force being inadequate to the enterprize, they retired with an intention to return the next day with a reinforcement. They did so, but Les Jumeaux had sailed and gone to sea. The agent, Mr. Guenet, by whom Les Jumeaux had been fitted out, was tried at the circuit court in Philadelphia, convicted of the offence, and received sentence of fine and imprisonment.

Les Jumeaux proceeded to St. Domingo; Samuel B. Davis, a citizen of the United States, there took the command of her, with a commission from the French Government. Davis probably sailed from Philadelphia in Les Jumeaux, for the purpose of finally taking the command of her. Her name was now changed to " le Cassius," and on a cruize she took a schooner called the "William Lindsay," belonging to Messrs. Yard and Ket. land, of Philadelphia, Mr. Ketland having purchased an interest in her after her sailing. The schooner and her cargo were condemned as a prize at St. Domingo. In August, 1795, Captain Davis, commanding the Cassius, came with her to Philadelphia; she was immediately known. Mr. Yard, with a view of obtaining an indemnification for the loss of the schooner and her cargo, libelled the Cassius in the District Court, and caused the captain to be arrested. Soon after, the Supreme Court, being in session, Captain Davis' counsel applied for and obtained a prohibition to the District Court to stop its proceedings, by which the suits both against him and le Cassius were defeated. The prohibition was granted on this principle, That the trial of prizes taken without the jurisdiction of the United States and carried to places within the jurisdiction of France for adjudication, by French vessels, and all questions incidental to it, belong exclusively to the French tribunals; and consequently that its vessels of war, and their officers, are not liable to process of our courts, predicated upon such capture and subsequent proceeding within the jurisdiction of the French Government.

Messrs. Yard and Ketland having failed to obtain indemnification in this mode, procured new process, on

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