JUDICIAL DISCRETION.

The refusal of a district judge to issue a warrant under the ninth article of the convention between France and the United States, cannot be interfered with by the Supreme Court; the latter having no control over a district judge exercising legal discretion.

PHILADELPHIA, March 21, 1795.

SIR: In conformity to the instructions contained in your letter of the 7th October last, I embraced the earliest opportunity of bringing before the Supreme Court of the United States the question which has arisen in consequence of the interpretation given by the district judge of New York to the ninth article of the convention between France and the United States. As the refusal of the judge (founded on this interpretation) to issue a warrant against Henry Barré could not be re-examined on a writ of error, the only method in which it appeared possible to obtain a revision of it was by applying to the Supreme Court for a mandamus. In order to accelerate the determination, I proposed to Mr. Lawrence that the main question should be fully argued on the motion, without waiting for a return of the writ, which could not be made before the first Monday in August next. He cheerfully concurred in the proposal, and expressed his willingness to submit to the earliest decision that could be obtained. The letters (copies of which I have the honor to enclose) afterwards passed between us.

A motion was accordingly made that a writ of mandamus should be issued, directed to the district judge of the district of New York, commanding him to issue a warrant against Henry Barré. The letters of the minister of France, of the vice-consul, and of the judges, were all laid before the court; and the question arising on them, to wit: "whether any evidence other than the ship's roll or register would be sufficient to authorize the judges to issue the warrant which was demanded," was fully discussed; two counsel being heard against the motion. In the course of the argument, some of the judges expressed a doubt whether this was a case in which the court were authorized to issue a mandamus, and a further day was given to hear counsel on that point. On a second argument, the court were of opinion that, as the act of Congress had made each district judge (within his district) the competent judge for the purposes expressed in the ninth article of the convention, and as Judge Lawrence had a right to decide the question arising on it, and had decided accordingly, the Supreme Court had no authority to interfere with his decision, or control the judge in the excercise of that legal discretion which was vested in him. Therefore, as an interpretation on the article in question. could not be given in the regular excercise of their judicial authority, they declined intimating any opinion on it.

I have only further to add, that, until Congress shall authorize a revision of the proceedings of the district judges on this article, or shall declare the judges of the Supreme Court to be competent judges for the purposes expressed in it, I do not perceive any method in which a uniformity of decision on it can be secured.

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

To the SECRETARY OF STATE.

WM. BRADFORD.

APPEALS TO SUPREME COURT UNITED STATES.

An appeal lies to the Supreme Court from the decree of a district judge, deciding that he has no jurisdiction over a particular subject. District judges are not the exclusive judges of their own jurisdiction: if the Supreme Court be of opinion that they have jurisdiction, they must conform to its judgment.

PHILADELPHIA, May 9, 1795.

SIR: I have been honored with your letter of the 7th instant, in which you request my opinion upon the steps which the government of the United States ought to pursue, in consequence of the representations of the minister of the French republic on the subject of the appeals entered from the decree of the district judge of Georgia, in the case of the two vessels brought in as prizes to a French privateer.

The minister seems to apprehend that there is some inconsistency in allowing an appeal when the judge decides that he has no jurisdiction to determine whether they are lawful prizes or not. But it must be observed that this opinion of the judge arises from his having previously decided on some material facts stated in the libel, and decreed that the French privateer was not armed nor equipped in any port of the United States, and was navigated and manned principally by French citizens. But, sir, had it been a simple question of jurisdiction, and had the judge decided that he had no jurisdiction whatsoever of the cause; yet, by the laws of the United States, an appeal from such sentence would have been authorized, because he is not the exclusive judge of his own jurisdiction; and, if the Supreme Court should be of opinion that he has jurisdiction, he must conform to their judgment, whatever his private sentiments may be. Be. sides, where an appeal is lawful, the refusal of the inferior judge to allow it will not prevent the superior court from proceeding on the appeal; and if it be not lawful, and allowed, the superior court, on application to them, will dismiss it.

Being, therefore, of opinion that the proceedings in these causes have been regular, I presume they must wait the usual course of judicial decision; and that any previous interference on the part of the Executive would be improper and unavailing. The papers transmitted to me are herewith returned.

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

To the SECRETARY OF STATE.

WM. BRADFORD.

BREACH OF NEUTRALITY.

Acts of hostility committed by American citizens against such as are in amity with us, being in violation of a treaty, and against the public peace, are offences against the United States, Bo far as they were committed within territory or jurisdiction thereof; and, as such, are punishable by indictment in the district or circuit courts. Acts of the kind occurring in a foreign country, however, are not within the cognizance of our courts.

The high seas are within the jurisdiction of the district and circuit courts of the United States: wherefore, if such an offence be committed thereon by American citizens, such courts will take notice of it, and the offenders may be legally prosecuted in either of those courts, in any district where the offenders may be found.

The offence in question being committed out of the territories of the United States, cannot be noticed by our courts; the offenders must be dealt with abroad, and, after proclamation by the President, will have forfeited all protection from the American government.

JULY 6, 1795.

THE Attorney General having perused and considered the memorial of Zachary Macauly, the acting Governor of the Sierra Leone Company's colony of Sierra Leone, on the coast of Africa, and of John Tilly, the agent of Messrs. John and Alexander Anderson, proprietors of Bance island, addressed to Lord Grenville, and enclosed in the communication from his Britannic Majesty's minister plenipotentiary to the Secretary of State, has now the honor of reporting his opinion thereon.

It is stated by the memorialists that certain American citizens trading to the coast of Africa, on the 28th of September last, voluntarily joined, conducted, aided, and abetted a French fleet in attacking the settlement, and plundering or destroying the property of British subjects on that

coast.

The Attorney General concurs in the opinions which have heretofore been given on this subject. He conceives that acts of hostility committed by American citizens against such as are in amity with us, being in violation of a treaty, and against the public peace, are offences against the United States, so far as they were committed within the territory or jurisdiction thereof; and, as such, are punishable by indictment in the district or circuit courts. It has been heretofore declared by the judges of the circuit court to be their joint and unanimous opinion, that, the United States being in a state of neutrality relative to the present war, such acts of hostility committed by a citizen are an offence against this country, and punishable by the laws of this country.

So far, therefore, as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States. But crimes committed on the high seas are within the jurisdiction of the district and circuit courts of the United States; and, so far as the offence was committed thereon, 1 am inclined to think that it may be legally prosecuted in either of those courts, in any district wherein the offenders may be found. But some doubt rests on this point, in consequence of the terms in which the "Act in addition to the act for the punishment of certain crimes against the United States" is expressed. But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States; and as such a suit may be maintained by evidence taken at a distance, on a commission issued for that purpose, the difficulty of obtaining redress would not be so great as in a criminal prosecution, where viva voce testimony alone can be received as legal proof.

The Attorney General begs leave further to remark, that this offence being committed out of the territories and waters of the United States, the government does not seem bound to do more than has already been done by the President, who, by his proclamation of the 22d of April, 1793, warned all citizens of the United States against all such proceedings; declaring that all those who should render themselves liable to punish

ment under the laws of nations, by committing, aiding, or abetting hostilities against any of the said parties, would not receive the protection of the United States against such punishment; and that he had given instructions to those officers to whom it belongs to cause proceedings to be instituted against all persons who should, within the cognizance of the courts of the United States, violate the laws of nations with respect to the powers at war, or any of them.

All which is submitted.

To the SECRETARY OF STATE.

WM. BRADFORD.